Obeid v R

[2017] NSWCCA 221

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Obeid v R [2017] NSWCCA 221

Hearing dates:

5-7 June 2017

Date of orders:

13 September 2017

Decision date:

13 September 2017

Before:

Bathurst CJ at [1]; Leeming JA at [291]; R A Hulme J at [336]; Hamill J at [470]; N Adams J at [474]

Decision:

1. Grant the applicant leave to appeal on Grounds 5 and 7 of the amended grounds of appeal filed on 8 March 2017.

 

2. Pursuant to r 4 of the Criminal Appeal Rules, grant the applicant leave to raise Grounds 1, 2, 3, 4 and 6 of the amended grounds of appeal filed on 8 March 2017.

 

3. Appeal against conviction dismissed.

 

4. Grant leave to appeal against sentence.

 5. Appeal against sentence dismissed.

Catchwords:

CRIMINAL LAW – appeal – conviction – whether the duty breached by the applicant was bad in law – whether the issues at trial were within the exclusive cognisance of the NSW Parliament and should not have been determined in the Supreme Court – whether the offence of official misconduct does not cover members of Parliament acting in their capacity as such – whether trial judge misdirected the jury on the element of “seriousness” – whether the verdict in relation to the “wilfulness” element is unreasonable or cannot be supported having regard to the evidence – whether trial judge misdirected the jury on the element of “wilfulness” – whether miscarriage of justice by reason that applicant’s lawyers failed to adduce evidence on various matters

CRIMINAL LAW – appeal – sentencing – common law offence – whether trial judge erred in concluding that offences found in Part 4A of the Crimes Act were the relevant analogue – whether trial judge erred in finding that the applicant had been solely motivated to benefit himself or his family – whether trial judge erred in taking into account that the jury had been satisfied the conduct merited criminal punishment – whether trial judge denied the applicant procedural fairness in holding that the mitigating factor under s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 had not been made out – whether trial judge erred in finding that damage caused to the institutions of government constituted loss or damage for the purposes of s 21A – whether the sentence imposed was manifestly excessive

Legislation Cited:

Australia Act 1986 (Cth), ss 1, 3
Australia Act 1986 (UK), ss 1, 3
Bill of Rights 1689 (1 Will & Mar sess 2 c 2), art 9
Canadian Human Rights Act, RSC 1985, c H-6
Constitution (Disclosures by Members) Regulation 1983 (NSW)
Constitution Act 1902 (NSW), s 14A
Constitution Act 1934 (SA), s 38
Constitution Act 1975 (Vic), s 19
Constitution of Queensland 2001 (Qld), s 9
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(1), 24C, 44(2)
Crimes Act 1900 (NSW), Part 4A, ss 249B, 307B
Crimes Act 1958 (Vic), s 318
Crimes and Other Acts (Amendment) Act 1974 (NSW), s 344A
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), s 5F
Criminal Code (Cth), s 142.2
Criminal Damage Act 1971 (UK), s 1
Evidence Act 1995 (NSW), s 48
Independent Commission Again Corruption Act 1988 (NSW), s 9
Parliamentary Contributory Superannuation Amendment (Criminal Charges and Convictions) Act 2017 (NSW)
Parliamentary Employment and Staff Relations Act, RSC 1985, c 33 (2nd Supp)
Parliamentary Privilege Act 1858 (Tas), s 3
Parliamentary Privileges Act 1891 (WA), s 1
Parliamentary Privileges Act 1987 (Cth), ss 5, 7, 16

Cases Cited:

Alford v Magee (1952) 85 CLR 437; [1952] HCA 3
Arena v Nader [1997] HCATrans 321; (1997) 71 ALJR 1604
Armstrong v Budd (1969) 71 SR (NSW) 386
ARS v R (No 2) [2011] NSWCCA 266
Attorney General’s Reference (No 3 of 2003) [2005] QB 73
Aubrey v The Queen [2017] HCA 18; (2017) 91 ALJR 601
Barker v The Queen (1983) 153 CLR 338; [1983] HCA 18
Barton v Taylor (1886) 11 App Cas 197
Blackstock v R [2013] NSWCCA 172
Blackwell v The Queen (2011) 81 NSWLR 119; [2011] NSWCCA 93
BP v R [2010] NSWCCA 159; 201 A Crim R 379
Bradlaugh v Gossett (1884) 12 QBD 271
Canada (House of Commons) v Vaid [2005] 1 SCR 667
Chan Tak Ming v Hong Kong Special Administrative Region (2010) 13 HKCFAR 745
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Criminal Justice Commission v Nationwide News Pty Ltd (1994) 74 A Crim R 569
Dang v R [2014] NSWCCA 47
Dickson v R [2017] NSWCCA 78
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v Couper [2013] VSCA 72; 229 A Crim R 115
Doyle v Falconer (1866) LR 1 PC 328
Egan v Chadwick (1999) 46 NSWLR 563; [1999] NSWCA 176
Egan v Willis (1996) 40 NSWLR 650
Egan v Willis (1998) 195 CLR 424; [1998] HCA 71
Egerton v Brownlow (1853) 4 HLC 1
Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727
Graham v The Queen [2016] HCA 27; (2016) 90 ALJR 820
Greenhalgh v R [2017] NSWCCA 94
Hadchiti v R [2016] NSWCCA 63
Harvey v New Brunswick (Attorney General) [1996] 2 SCR 876
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hong Kong Special Administrative Region v Ho Hung Kwan Michael (2013) 16 HKCFAR 525
Hong Kong Special Administrative Region v Wong Lin Kay (2012) 15 HKCFAR 185
Horne v Barber (1920) 27 CLR 494; [1920] HCA 33
House v The King (1936) 55 CLR 499; [1936] HCA 40
Janson v R [2013] NSWCCA 301
Jaturawong v R [2011] NSWCCA 168
Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242
Khoo v R [2013] NSWCCA 323; 237 A Crim R 221
Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225
King v The Queen (2012) 245 CLR 588; [2012] HCA 24
Kinloch v The Secretary of State for India in Council (1882) 7 App Cas 619
Lin v Tasmania (2015) 252 A Crim R 64; [2015] TASCCA 13
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McCloy v Latham [2015] NSWSC 1782
McCloy v State of NSW (2015) 257 CLR 178; [2015] HCA 34
Mehajer v R [2014] NSWCCA 167
Morin v Crawford (1999) 29 CPC (4th) 362
Mulato v R [2006] NSWCCA 282
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
Obeid v The Queen [2016] HCA 9; (2016) 90 ALJR 447
Perilya Broken Hill Ltd v Valuer-General [2015] NSWCA 400
Prebble v Television New Zealand Ltd [1995] 1 AC 321
President of the Legislative Council (SA) v Kosmas (2008) 175 IR 269
R v Boston (1923) 33 CLR 386; [1923] HCA 59
R v Boulanger [2006] 2 SCR 49
R v Caldwell [1982] AC 341
R v Chapman [2015] QB 883
R v Chaytor [2011] 1 AC 684
R v Coleman (1990) 19 NSWLR 467
R v CTG [2017] NSWCCA 163
R v Dytham [1979] QB 722
R v France [2016] 4 WLR 175
R v G [2004] 1 AC 1034
R v Greenway [1998] PL 357
R v Hannes [2002] NSWSC 1182
R v Hokin, Burton and Peisely (1922) 22 SR (NSW) 280
R v Isaacs (1997) 41 NSWLR 374
R v Macdonald; R v Maitland [2017] NSWSC 337
R v Macdonald; R v Maitland [2017] NSWSC 638
R v Norman [2017] 4 WLR 16
R v Obeid (No 12) [2016] NSWSC 1815
R v Obeid (No 2) [2015] NSWSC 1380
R v Ohar (2004) 59 NSWLR 596; [2004] NSWCCA 83
R v Parliamentary Commissioner for Standards; ex parte Al Fayed [1998] 1 WLR 669
R v Pilarinos [2002] BCSC 452
R v Quach (2010) 27 VR 310; [2010] VSCA 106
R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7
R v Sorlie (1925) 25 SR NSW 532
R v Spathis [2001] NSWCCA 476
R v Stoddart (1909) 2 Cr App R 217
R v White (1875) 13 SCR (NSW) (L) 322
Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83
Re Day (No 2) [2017] HCA 14; (2017) 91 ALJR 518
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Shum Kwok Sher v Hong Kong Special Administrative Region (2002) 5 HKCFAR 381
Sin Kam Wah v Hong Kong Special Administrative Region (2005) 8 HKCFAR 192
Sneddon v State of NSW [2012] NSWCA 351
Tafler v British Columbia (Commissioner of Conflict of Interest) (1998) 161 DLR 4th 511
The Queen v Clarke (1954) 61 ALR 312
The Queen v Hoar (1981) 148 CLR 33; [1981] HCA 67
The Queen v Richards; ex parte Fitzpatrick and Browne (1955) 92 CLR 157; [1955] HCA 36
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
United States v Brewster (1972) 408 US 501
Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285; [1987] HCA 11
Wilkinson v Osborne (1915) 21 CLR 89; [1915] HCA 92
Willis v Perry (1912) 13 CLR 592; [1912] HCA 12
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12

Texts Cited:

E Campbell, Parliamentary Privilege (2003, Federation Press)
L Lovelock and J Evans, New South Wales Legislative Council Practice (2008, Federation Press)

Category:

Principal judgment

Parties:

Edward Moses Obeid (Applicant)
Crown (Respondent)
Attorney-General (Amicus Curiae)

Representation:

Counsel:
G O’L Reynolds SC / G Rich SC / D Hume / P D Lange (Applicant)
P Neil SC / V McWilliams / B Nahrula (Respondent)
M G Sexton SC / A Mitchelmore (Attorney-General)

  Solicitors:
Hanna Legal (Applicant)
Office of the Director of Public Prosecutions (Respondent)
Crown Solicitor's Office (Attorney-General)

File Number(s):

2015/53925

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2016] NSWSC 1815

Date of Decision:

15 December 2016

Before:

Beech-Jones J

File Number(s):

2015/53925

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, who was formerly a member of the Legislative Council of New South Wales, was convicted following a trial before a jury of the common law offence of misconduct in public office. The acts constituting the misconduct involved the applicant making representations to a public servant with the intention of securing an outcome which would result in pecuniary benefits to the applicant or his family. The applicant appealed against both his conviction and sentence.

The issues arising on the conviction appeal were: (a) whether the duty said to have been breached by the applicant was bad in law; (b) whether the charge was within the exclusive cognisance of the Parliament of New South Wales; (c) whether there was a misdirection on the element of “wilfulness”; (d) whether the finding on “wilfulness” was unreasonable or unsupported by the evidence; (e) whether there was a misdirection on the element of “seriousness”; and (f) whether there was a miscarriage of justice arising from the conduct of the applicant’s legal representatives at trial.

The issues arising on the sentence appeal were: (a) whether the offences found in Part 4A of the Crimes Act 1900 (NSW) were the relevant analogue for the common law offence; (b) whether the trial judge erred in finding that the applicant was solely motivated to benefit his or his family’s pecuniary interests; (c) whether the trial judge erred in taking into account that the jury had been satisfied beyond reasonable doubt the conduct merited criminal punishment; (d) whether the applicant was denied procedural fairness by the trial judge finding that the mitigating factor under s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) had not been made out; (e) whether damage caused to the institutions of government can constitute “loss or damage” under s 21A; and (f) whether the sentence imposed was manifestly excessive.

The Court held (Bathurst CJ, Leeming JA, R A Hulme, Hamill and N Adams JJ), granting the applicant leave to appeal and dismissing the appeal:

The conviction appeal

(a) The duty

(i)    Members of Parliament are appointed to serve the people of the State, including their constituents. The conduct of the applicant, as alleged in the indictment and amounting to a breach of the duty of trust owed by a public officer, is capable of amounting to the offence of misconduct in public office, provided the elements of wilfulness and seriousness are made out: [62], [73] (Bathurst CJ); [291], [330] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

R v Quach (2010) 27 VR 310; [2010] VSCA 106; Egerton v Brownlow (1853) 4 HLC 1; Horne v Barber (1920) 27 CLR 494; [1920] HCA 33; R v Boston (1923) 33 CLR 386; [1923] HCA 59; McCloy v State of NSW (2015) 257 CLR 178; [2015] HCA 34; R v Boulanger [2006] 2 SCR 49; R v White (1875) 13 SCR (NSW) (L) 322; Re Day (No 2) [2017] HCA 14, (2017) 91 ALJR 518; Sneddon v State of NSW [2012] NSWCA 351; Hong Kong Special Administrative Region v Wong Lin Kay (2012) 15 HKCFAR 185; The Queen v Clarke (1954) 61 ALR 312 applied.

(ii)   The duty as encapsulated in the trial judge’s summing-up was not a “twofold” or “double” duty. The formulation, “act only according to what they believe to be in the public interest and the interests of the electorate and must not use their position for the purpose of promoting their own pecuniary interests”, merely reflected its positive and negative elements in the circumstances of the present case, where it was alleged that the applicant rather than acting in the interests of the public and electorate, spoke to the public servant for the purpose of advancing his or his family’s pecuniary interests: [79] (Bathurst CJ); [291], [330] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

(iii)   There was no error in the trial judge not directing the duty that the improper purpose must be a substantial or dominant purpose. The case went to the jury on the basis that it was necessary for the Crown to establish beyond reasonable doubt that the applicant’s sole purpose was to advance his or his family’s pecuniary interests. If anything, this formulation was favourable to the applicant: [84], [90], [92], [94]-[95] (Bathurst CJ); [291], [330]-[335] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

R v Macdonald; R v Maitland [2017] NSWSC 337; Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285; [1987] HCA 11 considered.

Hadchiti v R [2016] NSWCCA 63; Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242; Lin v Tasmania (2015) 252 A Crim R 64; [2015] TASCCA 13; Alford v Magee (1952) 85 CLR 437; [1952] HCA 3 applied.

(b) Exclusive cognisance

(iv)   In Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 the Court determined that the Supreme Court of New South Wales had jurisdiction to hear the charge the subject of the indictment. The reasons given there are equally applicable to the argument reframed as the Court being required to exercise a “self-denying” ordinance. Firstly, the fact that Parliament has its own law unknown to Courts has no bearing on the Court’s jurisdiction to determine a common law charge. Secondly, Parliament does not have an exclusive jurisdiction to deal with criminal conduct, subject to certain exceptions. Outside those exceptions there is no reason for a Court to decline to exercise jurisdiction, and in many cases to do so would constitute an affront to the administration of justice. Thirdly, nothing in the NSW Constitution supports the proposition. Fourthly, the case law supports the Court exercising jurisdiction. Fifthly, the indictment does not in terms make allegations of any conduct within the walls of Parliament relating only to the internal practices of the chamber, nor does it impeach speech within Parliament, or any parliamentary proceedings: [134]-[140] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309; R v Chaytor [2011] 1 AC; Prebble v Television New Zealand Ltd [1995] 1 AC 321; Egan v Willis (1996) 40 NSWLR 650; Egan v Willis (1998) 195 CLR 24; [1998] HCA 1; R v Boston (1923) 33 CLR 386; [1923] HCA 59; R v Greenway [1998] PL 357; R v White (1875) 13 SCR (NSW) (L) 322 applied.

Canada (House of Commons) v Vaid [2005] 1 SCR 667; President of the Legislative Council (SA) v Kosmas (2008) 175 IR 269; Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83 distinguished.

(v) The proposition that the proceedings impermissibly involved an assessment of the standards, responsibilities and obligations of a Member of Parliament should be rejected. The indictment does not place any reliance on the member’s Code of Conduct, the Constitution (Disclosures by Members) Regulation 1983 (NSW) or any “protocol”. The fact that Parliament has power to deal with contraventions of the Code does not mean the Court should decline to exercise jurisdiction, as the Court and the Parliament may have concurrent jurisdiction in respect of criminal matters: [141]-[144] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

R v Chaytor [2011] 1 AC applied.

(vi)   These proceedings were not so closely connected with proceedings in Parliament so as to make it either appropriate or necessary for the Court to decline to exercise jurisdiction: [120], [145]-[146] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

Egan v Willis (1996) 40 NSWLR 650; Egan v Willis (1998) 195 CLR 424; [1998] HCA 71; R v Chaytor [2011] 1 AC applied.

(vii)   A long line of appellate authority holds that a chamber such as the Legislative Council, which has not been statutorily conferred the power to punish, has powers limited by a test of reasonable necessity for the existence of proper functioning of the chamber, and those powers do not extend to punishment. The exercise of power to punish a former member for conduct committed outside the Chamber is even further outside the limits of the implied power: [295]-[298] (Leeming JA), [471] (Hamill J); [474] (N Adams J).

(viii)   The fact that the New South Wales Parliament, unlike the Parliaments of the Commonwealth and every other State, has not enacted legislation conferring upon the legislative chambers the power to punish is a powerful factor against that result being achieved by judicial innovation: [304]-[305] (Leeming JA), [471] (Hamill J); [474] (N Adams J).

(c) The wilfulness direction

(ix)   The jury was directed that it had to be satisfied the conduct was a breach of the duties and obligations of a Member of Parliament. There was no need to state that the applicant knew the conduct was unlawful as distinct from a breach of the obligation which had been explained to the jury and which the jury had found was in fact breached: [173]-[175] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

Shum Kwok Sher v Hong Kong Special Administrative Region (2002) 5 HKCFAR 381; R v G [2004] 1 AC 1034; Attorney General’s Reference (No 3 of 2003) [2005] QB 73; Sin Kam Wah v Hong Kong Special Administrative Region (2005) 8 HKCFAR 192; Chan Tak Ming v Hong Kong Special Administrative Region (2010) 13 HKCFAR 745; Hong Kong Special Administrative Region v Wong Lin Kay (2012) 15 HKCFAR 185 considered.

(x)   There was no requirement to direct the jury that in dealing with recklessness it was necessary for them to be satisfied beyond reasonable doubt that it was unreasonable for the applicant to take the risk that his conduct was unlawful. This was not a case involving an act that could be said to have social utility, such that a direction as to the reasonableness of the act was appropriate: [178]-[183] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

R v Coleman (1990) 19 NSWLR 467; Blackwell v The Queen (2011) 81 NSWLR 119; [2011] NSWCCA 93; Aubrey v The Queen [2017] HCA 18; (2017) 91 ALJR 601 applied.

(d) Finding on wilfulness unreasonable or unsupported by evidence

(xi)   It was open to the jury to reach the conclusion beyond reasonable doubt that the applicant knew that his conduct was unlawful or foresaw that that was a possibility. It is inconceivable that a politician of 16 years standing who had been a Minister for four years did not know that his duty was to serve the public interest and that he was not elected to use his position to advance his own or his family’s pecuniary interests: [194]-[198] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

Dickson v R [2016] NSWCCA 78 applied.

(e) The seriousness direction

(xii)   The offence of misconduct in public office is limited to misconduct which merits criminal punishment. It is helpful to refer to the fact that it is necessary to conclude that the conduct amounts to an abuse of public trust in order to satisfy the element of seriousness. The trial judge expressly directed the jury to this effect, stating that “the misconduct must be so serious that it amounts to an abuse of the public’s trust in the office holder”: [221]-[223] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309; R v Quach (2010) 27 VR 310; [2010] VSCA 106 applied.

Sin Kam Wah v Hong Kong Special Administrative Region (2005) 8 HKCFAR 192; Shum Kwok Sher v Hong Kong Special Administrative Region (2002) 5 HKCFAR 381; R v Dytham [1979] QB 722; Attorney General’s Reference (No 3 of 2003) [2005] QB 73; R v Chapman [2015] QB 883; R v France [2016] 4 WLR 175; R v Norman [2017] 4 WLR 16 considered.

(xiii)   It is not necessary to refer to a “departure from acceptable standards” as an element of the offence. No exact form of words is necessary. Rather, the direction must take into account the context in which the misconduct was said to occur: [224]-[230] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

R v Quach (2010) 27 VR 310; [2010] VSCA 106 applied.

Attorney General’s Reference (No 3 of 2003) [2005] QB 73; R v Chapman [2015] QB 883; R v France [2016] 4 WLR 175; R v Norman [2017] 4 WLR 16 considered.

(xiv)   It is not necessary to direct the jury that the conduct in question must be against the public interest. That expression is a method of emphasising the seriousness of the offence rather than one of definition: [232] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

R v Quach (2010) 27 VR 310; [2010] VSCA 106; Shum Kwok Sher v Hong Kong Special Administrative Region (2002) 5 HKCFAR 381 applied.

(xv)   It was not erroneous to direct the jury that the conduct must merit criminal punishment: [234] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

King v The Queen (2012) 245 CLR 588; [2012] HCA 24 considered.

(f) Miscarriage of justice

(xvi)   The failure to object to the evidence of Mr Oxenbould as to the existence of a “protocol” that members of Parliament not speak directly to public servants did not give rise to a miscarriage of justice. It was not inadmissible opinion evidence. It was a sensible decision by counsel for the applicant not to object to a matter which could have been formally proved. The admission of the evidence did not deprive the applicant of a chance of acquittal fairly open: [250]-[254] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 applied.

(xvii)   The failure to tender the member’s Code of Conduct and the Legislative Council’s Members Guide did not lead to a miscarriage of justice. The documents deal in the main with disclosure of conflicts. In addition, there were sound forensic reasons not to tender the documents as they contained, respectively, an acknowledgement of the responsibility of Members of Parliament to maintain the public trust placed in them, and an emphasis of the fact that Members are not entitled to vote to advance their own interests: [269]-[271] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

(xviii)   The failure to call Mr Confos, who would have given evidence that Mr Obeid had been concerned about the situation of the tenants at Circular Quay prior to his acquisition of an interest in area, did not give rise to a miscarriage of justice. The evidence does not advance the matter further than the evidence of Mr Tripodi and the agreed facts at trial. The evidence would not lead a jury to conclude contrary to the fact that Mr Obeid was solely motivated by his personal interest in making the representations the subject of the indictment: [282]-[285] (Bathurst CJ); [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).

The sentence appeal

(a) The relevant analogue

(i)    The practice of identifying a statutory analogue when sentencing for a common law offence where the penalty is at large does not involve identification of a statutory offence that the offender committed or for which the offender could have been convicted: [362]-[363] (R A Hulme J); [289] (Bathurst CJ); [291] (Leeming JA); [473] (Hamill J); [475] (N Adams J).

R v Hokin, Burton and Peisely (1922) 22 SR (NSW) 280 considered.

(ii) It was open for the sentencing judge to have regard to the offence in s 249B of the Crimes Act 1900 (NSW) as broadly analogous to the common law offence of misconduct in public offence: [364] (R A Hulme J); [289] (Bathurst CJ); [291] (Leeming JA); [473] (Hamill J); [475] (N Adams J).

R v Macdonald; R v Maitland [2017] NSWSC 638 considered.

(b) The applicant’s motivation

(iii)   It was necessary, in this case, in order to return a verdict of guilty, for the jury to be satisfied beyond reasonable doubt that the applicant was solely motivated to benefit himself or his family in making the representations. The judge was required to sentence in a manner consistent with the jury’s verdict. There was no error in this being taken into account on sentence: [373]-[375] (R A Hulme J); [289] (Bathurst CJ); [291] (Leeming JA); [473] (Hamill J); [475] (N Adams J).

R v Isaacs (1997) 41 NSWLR 374; Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 applied.

(c) Meriting criminal punishment

(iv) The sentencing judge was correct to say he was not bound to impose a sentence not exceeding the maximum for the broadly analogous offence in s 249B of the Crimes Act 1900 (NSW). It was unnecessary for his Honour to provide a justification for this, by stating that the element of seriousness was one of the differences between the common law and statutory offence. However, there was no error in his reference to this matter by way of example: [390]-[393] (R A Hulme J); [289] (Bathurst CJ); [291] (Leeming JA); [473] (Hamill J); [475] (N Adams J).

R v White (1875) 13 SCR (NSW) (L) 322; Blackstock v R [2013] NSWCCA 172 applied.

R v Hokin, Burton and Peisely (1922) 22 SR (NSW) 280; The Queen v Hoar (1981) 148 CLR 33; [1981] HCA 67 considered.

(d) & (e) Damage to the institutions of government and procedural fairness

(v)   Damage to the institutions of government was a relevant matter for the sentencing judge to take into account in his assessment of the seriousness of the offence. The matter was not taken into account as a matter of aggravation. It simply bore upon his assessment of the relative seriousness of the offence: [414], [416]-[418] (R A Hulme J); [289] (Bathurst CJ); [291] (Leeming JA); [473] (Hamill J); [475] (N Adams J).

R v Hannes [2002] NSWSC 1182; R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7; Director of Public Prosecutions (Cth) v Couper [2013] VSCA 72; 229 A Crim R 115; Khoo v R [2013] NSWCCA 323; 237 A Crim R 221 considered.

(vi) There was no denial of procedural fairness. The sentencing judge did not reject the submission that the mitigating factor in s 21A(3)(a) applied: [418] (R A Hulme J); [289] (Bathurst CJ); [291] (Leeming JA); [473] (Hamill J); [475] (N Adams J).

Dang v R [2014] NSWCCA 47 considered.

(f) Manifest excess

(vii)   The applicant has failed to establish that the sentence imposed upon him is unreasonable or plainly unjust. No error has been demonstrated in relation to any of the grounds of appeal. The assessment that the misconduct was a very serious example of the offence was a finding open to the sentencing judge. The sentencing judge did not fail to take into account any favourable aspect of the applicant’s subjective case. The maximum penalty for the statutory analogue was a reference point, not a fetter upon the sentencing discretion. General deterrence, denunciation, recognition of harm to the community and making the offender accountable for his actions were important considerations: [461]-[468] (R A Hulme J); [289] (Bathurst CJ); [291] (Leeming JA).

House v The King (1936) 55 CLR 499; [1936] HCA 40; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 applied.

(viii)   While the sentence imposed was heavy, the sentence is not affected by patent legal error, nor is it plainly unjust or manifestly wrong: [473] (Hamill J); [475] (N Adams J).

House v The King (1936) 55 CLR 499; [1936] HCA 40; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 applied.

Judgment

1. BATHURST CJ: The applicant, Mr Edward Moses Obeid (Mr Obeid), was tried on an indictment in the following terms:

“Between 1 August 2007 and 30 November 2007 in Sydney in the State of New South Wales, then holding public office as a Member of the Legislative Council of New South Wales did in the course of or connected to his public office wilfully misconduct himself by making representations to Stephen Paul Dunn, the Deputy Chief Executive Officer and General Manager, Maritime Property Division of the Maritime Authority of New South Wales, with the intention of securing an outcome from the said Maritime Authority favourable to Circular Quay Restaurants Pty Ltd in respect of its tenancies of properties at Circular Quay knowing at the time he made the representations that he had a commercial and/or beneficial and/or family and/or personal interest in the said tenancies which he did not disclose to Stephen Paul Dunn.”

2. Following a trial before Beech-Jones J (the trial judge) and a jury, Mr Obeid was convicted and was sentenced to a term of imprisonment of 5 years commencing on 15 December 2016 with a non-parole period of 3 years. Mr Obeid has appealed against his conviction and sought leave to appeal against his sentence.

Background facts

3. The primary facts giving rise to the offence were either undisputed or, subject to what I have set out below dealing with particular grounds of appeal, not the subject of any debate in the appeal. The summary is primarily taken from the trial judge’s summary of the facts in his sentencing judgment.

4. Mr Obeid was elected to the Legislative Council in 1991 and retired in 2011. From April 1999 to April 2003 he was the Minister for Fisheries.

5. In the period leading up to the Sydney Olympics, the NSW Maritime Authority (the Maritime Authority), then known as the Waterways Authority, entered into leases for businesses situated on Wharves 1-5 at Circular Quay. The leases were for terms of 5 years expiring on or about 31 August 2005. There was no option for renewal.

6. The Minister responsible for the Maritime Authority was the Minister for Ports and Waterways. Between February 2006 and November 2009, the relevant Minister was Mr Joseph Tripodi.

7. In about late 2002, Circular Quay Restaurants Pty Ltd (CQR) purchased two businesses operating at the wharves, the Café Sorrentino on Wharf 4 and the Quay Eatery on Wharf 5 for $1 million each. CQR took an assignment of the leases entered into in respect of each of those premises.

8. The sole director and shareholder of CQR was Mr Obeid’s brother-in-law Mr John Abood. It was an agreed fact that “via a series of trusts 90% of the interest in the business[es] flowed to the Obeid Family Trust No 2”. This was a discretionary trust, the potential beneficiaries of which included Mr Obeid and his wife Judith (Mrs Obeid). The purchases were funded in part ($1.398 million) from the proceeds of a mortgage of the house in which Mr Obeid and his wife resided and which was registered in the name of his wife.

9. Mr Abood managed the business on a day-to-day basis for which he was paid a salary and provided with a motor vehicle. One of Mr Obeid’s sons, Mr Damien Obeid (Damien), was responsible for the collection of the cash takings of the business and payment of the invoices. Damien gave evidence that shortly after the businesses were acquired, he arranged $1,000 to $1,200 per week from the cash takings of CQR to be delivered to Mrs Obeid. It appears that towards the end of 2008 or early 2009, the payments increased to up to $2,000 per week.

10. The lessees of the businesses at the wharves were concerned about their security of tenure. This was particularly the case for CQR, as if the leases were not renewed, it was likely that the funds outlaid to purchase the businesses would not be recouped. In August 2004, five representatives of the lessees including Mr Abood, wrote to the Sydney Harbour Foreshore Authority (SHFA) which was managing the wharves for the Maritime Authority, expressing concern about the security of their tenure and seeking a response to their request to renew the leases. On 2 September 2004 SHFA responded, stating that all lease agreements would be offered for competitive tender at their expiry and the tendering process would commence early in the New Year.

11. On the recommendation of Damien’s cousin, Mr Dennis Jabour, three separate tenants, including CQR, retained a Mr Peter Scanlan, a professional negotiator with legal qualifications, to lobby the Maritime Authority to achieve either renewal of the leases or the Authority’s agreement to direct negotiations with the tenants.

12. Mr Scanlan undertook that task from late 2004 to early 2008. He wrote a series of letters, made numerous telephone calls, had meetings with Maritime Authority staff and in July 2006 a meeting with Minister Tripodi. Despite these efforts, up to the middle of 2007 he was unsuccessful in securing a change in position by the Maritime Authority.

13. Despite Mr Scanlan’s lack of success, the Maritime Authority did not proceed to competitive tender for the leases. Rather, they were extended for 6 months from August 2005, and thereafter continued as month-to-month tenancies.

14. The reason for the delay in going to competitive tender was explained by the former Chief Executive Officer of the Maritime Authority, Mr Christopher Oxenbould. The delay resulted from internal government disagreements concerning the Maritime Authority’s Commercial Leasing Policy (the CLP) and its approach to the Circular Quay Precinct. He explained there were differences of opinion within the Maritime Authority and between differing Ministers from time-to-time whether upon expiration of a lease a new lease should be the subject of a market based tender, or whether existing tenants should be allowed the opportunity of first negotiating a renewal. Mr Oxenbould stated that within the Maritime Property Division of the Maritime Authority there was a strong belief that the process of renewal for the Circular Quay leases was a special case compared with those addressed in the proposed CLP and should only be renewed by a process of competitive tender.

15. Mr Patrick Low was appointed to a senior policy position within the Maritime Authority in November 2006 and assumed responsibility for the finalisation of the CLP. Mr Low gave evidence that he did not draw any distinction between leases at Circular Quay and other leases of the Maritime Authority Property Division. On 7 August 2007 Mr Low finalised Version 9 of the Draft CLP which contemplated that all leases of Maritime Authority property be offered on a competitive basis, including new leases in respect of properties where existing leases had expired.

16. On 15 August 2007, Mr Stephen Dunn took up appointment as Deputy Chief Executive Officer of the Maritime Authority and on 21 August 2007 he was appointed General Manager of the Maritime Property Division. Mr Dunn was the Director-General of Fisheries from late 1999 to 2004 which included the period in which Mr Obeid was Minister for Fisheries. Mr Dunn’s evidence was that he and Mr Obeid came to know each other well during that period. He said they did not socialise, although he regarded Mr Obeid as a mentor.

17. Mr Dunn gave evidence that after he ceased work at the Department of Fisheries, he worked overseas for 2 years and after his return he met Mr Obeid infrequently for coffee. He said immediately before his appointment to the Maritime Authority, Mr Obeid contacted him and was or became aware that Mr Dunn was about to commence in a senior position with the Maritime Authority.

18. On 17 August 2007, Mr Dunn spoke with Mr Obeid who told him he was unhappy about the way the group of tenants at Circular Quay had been treated by the Maritime Authority and asked Mr Dunn to speak to Mr Scanlan. He said he recalled that Mr Obeid made some very disparaging remarks about the Maritime Authority and the way it treated its tenants. He recalled Mr Obeid saying that lessees at Circular Quay were bullied by Maritime Authority staff and were not treated fairly. He recalled that Mr Obeid was agitated and used quite strong language to convey his feelings. In cross-examination, Mr Dunn agreed Mr Obeid did not advocate any outcome other than him merely speaking to Mr Scanlan, and did not expand on the tenants’ grievances.

19. Mr Obeid did not indicate during those conversations or any subsequent conversation, that he had a direct or indirect financial interest in any of the businesses at Circular Quay or in CQR. Mr Dunn said he knew that Mr Obeid was a Member of the Legislative Council and believed “very much that he was calling on behalf of constituents”.

20. There were further telephone conversations between Mr Dunn and Mr Obeid after the 17 August phone call. Mr Dunn stated he could not recall the content of those conversations but accepted that there was nothing to discuss other than the Circular Quay leases. He recalled that in telephone calls on 5 and 11 September 2007, Mr Obeid was seeking updates.

21. Around 28 August 2007, Mr Dunn and Mr Low met to discuss Version 9 of the Draft CLP. Mr Low recalled that Mr Dunn directed that it be changed from requiring open tender of leases to instead having a “benchmark of lease renewals on commercial terms”. Mr Dunn stated he did not direct those changes but was encouraging Mr Low that this was a suitable policy response.

22. On 4 September 2007, Version 10 of the Draft CLP was produced. It provided that retail leases would be offered “by direct negotiations” with existing tenants in the first instance. The final CLP containing these terms was approved by Cabinet on 26 November 2007. A new lease for the CQR businesses was signed in 2008. The businesses ultimately failed and the leases were terminated in 2012.

The conviction appeal

23. Each ground of appeal raised discrete issues, although in some cases submissions made on various grounds were called in aid on other grounds. This was particularly so in relation to Ground 7, which stated there was a miscarriage of justice arising from the conduct of Mr Obeid’s case at trial by his legal representatives.

24. Each of Grounds 1-4 and 6 of the grounds of appeal concerned matters not raised at trial and not the subject of any requests for further directions by counsel for Mr Obeid. In these circumstances r 4 of the Criminal Appeal Rules potentially applied. However, each of Grounds 1, 2 and 3 raise matters which if established would immediately lead to an acquittal or stay of proceedings (in respect of Ground 1, to the extent it was alleged that there was no duty to give rise to the offence charged). In addition, Ground 3 and possibly Ground 2, raised matters decided unfavourably to Mr Obeid in Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309, and thus would have been inappropriate to raise at trial. Further, Ground 1 asserts a misdirection as to the nature of the offence in question, and Grounds 4 and 6 assert misdirections as to the elements of the offence. To that extent, they raise matters which, if correct, would constitute a miscarriage of justice and thus r 4 would have no application. Whilst I accept, as Basten JA has pointed out in Greenhalgh v R [2017] NSWCCA 94 at [14], that the exercise of the discretion to grant leave conferred by r 4 cannot be proscribed, the discretion in my opinion will be exercised in the applicant’s favour where there has been a miscarriage of justice such that the appellant has lost a real chance of acquittal: see ARS v R (No 2) [2011] NSWCCA 266 at [147]; Greenhalgh supra per N Adams J at [47]-[48].

25. Further, as Basten JA observed in Greenhalgh supra at [14], if a necessary element of a fair trial according to law was overlooked, leave should generally be granted. A proper direction as to the elements of the offence, in my opinion, is a necessary ingredient of a fair trial. Grounds 4 and 6 raise such a misdirection.

23. In these circumstances, as I indicated at the hearing, leave to raise Grounds 1, 2, 3, 4 and 6 should be granted. It is unnecessary in these circumstances to determine whether r 4 can apply to a ground of appeal on a question of law alone. It is similarly unnecessary to consider whether the decisions in Greenhalgh supra and ARS supra suggest different approaches to the determination of whether leave should be granted in cases where the rule applies.

Ground 1: The learned trial judge made a wrong decision on a question of law in respect of his formulation of the duty which the appellant was said to have breached

a   The relevant directions

27. To understand the submissions made in respect of this ground, it is necessary to have regard to what the applicant has described as the formulation of the duty by the trial judge in his directions to the jury.

28. The trial judge gave written directions to the jury in the following terms:

“To prove that the accused, Edward Moses Obeid, is guilty of the charge on the indictment the Crown must prove beyond reasonable that, between 1 August 2007 and 30 November 2007:

(1)   The accused was a public official:

A member of the Legislative Council of New South Wales is a public official.

(2)   The Accused acted in the course of or connected to his public office;

(3)   In so acting the Accused wilfully misconducted himself;

To prove this element [t]he Crown must prove beyond reasonable doubt that:

(a)   The accused engaged in the conduct identified in the indictment that is he made representations to Stephen Paul Dunn with the intention of securing an outcome from the Maritime Authority favourable to Circular Quay Restaurants Pty Ltd in respect of its tenancies of properties at Circular Quay knowing at the time he made the representations that he had a commercial and/or beneficial and/or family and/or personal interest in the tenancies which he did not disclose to Stephen Paul Dunn.

(b)   Such conduct as you are satisfied the accused engaged in was misconduct, that is a breach of the duties and obligations of his office as a member of the Legislative Council; and

(c)   That such misconduct you find the accused engaged in was ‘wilful’ that is the accused knew that he was obliged not to use his position in that way or he knew that it was possible that he was obliged not to use his position in that way but chose to do so anyway; and

(4)   The Accused’s conduct was misconduct that was serious and merits criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.”

29. It is to be noted that written direction 3 required the jury to be satisfied beyond reasonable doubt of three matters. First, that Mr Obeid engaged in the conduct referred to in the indictment with the intention of securing an outcome favourable to CQR, knowing at the time he had a commercial, beneficial or family interest in the business which he did not disclose to Mr Dunn. It was this element of the written direction which focused on Mr Obeid’s intention.

30. Second, the jury had to be satisfied that such conduct was in breach of Mr Obeid’s duties as a Member of the Legislative Council (3(b) of the directions). This question would only arise if the jury was satisfied beyond reasonable doubt that question 3(a) should be answered in the affirmative.

31. The third matter which arose only if questions 3(a) and (b) were answered in the affirmative, was whether the misconduct was wilful in the sense that Mr Obeid knew he was obliged not to use his position in that way but did so in any event.

32. After giving some general directions, the trial judge in summing-up directed the jury by reference to the written directions. In relation to (3)(a) of the written directions, after dealing with the question of whether Mr Obeid had a commercial, beneficial or family interest in the tenancy, the trial judge dealt with the question of intention. His Honour summarised the Crown case on the issue in the following terms:

“… In his closing address the Crown Prosecutor contended that in that conversation he had with Mr Dunn, the accused was ‘priming’ Mr Dunn to be receptive to the outcome that Mr Scanlan was seeking on behalf of CQR and the other tenants and that, even though Mr Obeid Snr was using his position as an MLC, he was not acting on behalf of any arm’s length constituents, but was instead pursing his or his family’s private financial interests.

Now in so contending the Crown asked you that you draw an inference as to what Mr Obeid’s actual state of mind was when he spoke to Mr Dunn. Specifically the Crown submits that you should infer that he spoke to Mr Dunn for the purpose of promoting his and his family’s financial interests and that he did not act in any way under the belief that speaking to Mr Dunn was in the public interest or the interest of the electorate of New South Wales or even some constituents.

Let me repeat that. In alleging that Mr Obeid spoke to Mr Dunn that is made representations to Mr Dunn with the intention of securing an outcome from the Maritime Authority favourable to CQR, the Crown is asking you to infer that he spoke to Mr Dunn for the purpose of promoting his and his family’s financial interests and that he did not in any way act under the belief that speaking with Mr Dunn was in the public interest or the interests of the electorate of New South Wales or even some constituents.”

33. On two occasions in this passage the trial judge noted the Crown case was that Mr Obeid spoke to Mr Dunn for the purpose of promoting his and his family’s financial interests and not in the belief that it was in the public interest or the interests of the electorate of New South Wales or even some constituents.

34. After dealing with the competing contentions of the Crown and Mr Obeid, the trial judge concluded his summing-up on par (3)(a) of the written directions in the following terms:

“Critically are you satisfied beyond reasonable doubt that the conduct of the accused in making the representations to Mr Dunn was undertaken with the intention of benefitting Circular Quay Restaurants, that is for the purpose of promoting Mr Obeid’s pecuniary interests or those of his family or those close to him and that it was not undertaken because he in any way genuinely believed it was in the public interests or the interests of the electorate or even part of the electorate? Has Mr Hughes SC persuaded you to the contrary or are you left with a reasonable doubt about the matter?

Now to find beyond reasonable doubt the accused made the representations to Mr Dunn with the intention of benefitting CQR and thus for the purpose of promoting his pecuniary interests or those of his family or those close to him and not because he in any way genuinely believed that the public interest or the interest of the electorate of his constituents warranted him acting that way requires you to draw an inference. Consistent with what I have already stated, you would not draw that inference from the proven facts unless it is the only rational inference in the circumstances.

If you are not satisfied beyond reasonable doubt that Mr Obeid Snr made representations to Mr Dunn with the intention of benefitting Circular Quay Restaurants as referred to in the indictment and in the manner outlined then the Crown will have failed to prove the accused acted as he alleged in the indictment and he must be acquitted. Whether you are so satisfied is a matter of fact for you and you alone as members of the jury.

Now this discussion all concerns paragraph 3(a) of the hand out. As to that element, are you satisfied beyond reasonable doubt that the accused engaged in the conduct alleged against him in the indictment?”

35. Thereafter the following exchange took place in the absence of the jury:

“CROWN PROSECUTOR: On element 3(a) it would be the Crown’s position that the subject of the accused acting in the way the Crown submitted, for the purpose of obtaining a favourable outcome for CQR, and at the same time, he had some genuine belief that that would benefit the public, to put it broadly, are not mutually exclusive.

HIS HONOUR: Well if they are not then there is a problem in the indictment.

I think I raised this the other day I actually said, by saying, by intending to secure an outcome you mean pursuing his own financial interest and excluding that he acted genuinely in the public interest, because, you charged him with making representation without disclosure. You haven’t charged him with deliberately omitting to disclose. If you did we would have a different discussion but you have got a charge that says the duty is to act in what he believed were the interests of the electorate.

Now, I will give you an example, if a member of Parliament know that a gas project will profit a particular company but they don’t have an interest in the project and they actually do act with the intention of profiting that company but they also act, they believe it is in the public interest, it is hard to see how that can be an offence.

So when you have this offence drafted in this way, that is, making a representation, that can only be an offence or breach of the relevant duty if he not only intended to secure a profit but he did that not believing it was in the public interest.

That is the reasoning behind it. I understand your submission. I reject that submission.

What it probably means is that, if the jury answer 3(a) then I think the question of misconduct must be answered against the accused but the issue of wilful misconduct remains.”

36. The trial judge then commenced to deal with question 3(b). He emphasised that in performing their function Members of Parliament must not be motivated by personal pecuniary considerations, whilst recognising from time-to-time decisions made by them can affect their personal interests. He explained this in the following terms:

“Instead, this case concerns the requirement that in performing their functions on behalf of the public and the electorate, a Member of the Legislative Council must act only according to what they believe to be in the public interest and the interests of the electorate and, in particular, they must not be motivated by personal pecuniary considerations. That is members of Parliament must not use their position to promote their own pecuniary or financial interests or the pecuniary or financial interests of those close to them.

If a Parliamentarian such as a Member of the Legislative Council does not act only according to what they believe is in the public interest and the interest of the electorate but instead performs their functions for the purpose of, or with the intention of advancing their own personal or financial interest or those close to them then they are not acting with fidelity and single-mindedness for the welfare of the community.

Now of course from time to time Parliamentarians may have to make decisions that can affect their personal interests. For example, they may advocate the raising or lowering of taxes. In such a case they are advocating a position that could affect everyone’s interest, including their own. There is no misconduct in their doing so provided they act only according to their conscience as to what is in the public interest and that of the electorate and are not doing so with the intention of advancing their own personal pecuniary interests.

I direct you that, as a matter of law, in performing their functions Members of the Legislative Council must act only according to what they believe to be in the public interest and the interests of the electorate, and must not use their position for the purpose of promoting their own pecuniary interests or those of their family or entities close to them.

I will repeat that, as a matter of law, in performing their functions, Members of the Legislative Council must act only according to what they believe to be in the public interest and in the interests of the electorate and must not use their position for the purpose of promoting their own pecuniary interests or those of their families or entities close to them.

If you have reached this point of your deliberations you will already have been satisfied beyond reasonable doubt that Mr Obeid made representations with the intention of securing an outcome from the Maritime Authority favourable to Circular Quay Restaurants which, as I explained, means he made representations for the purpose of promoting his and his family’s financial interest and not pursuant to any belief that speaking to Mr Dunn was in the public interest or the interests of the electorate of New South Wales.”

37. In stating to the jury, in the last paragraph of the summing-up to which I have referred in [36], that “if you have reached this point of your deliberations” the trial judge was referring to the fact that the jury would have been satisfied of the element referred to in par 3(a) of the written directions. To the extent that this was not immediately apparent, it was clear from the following remarks made by the trial judge after referring to the contentions for the Crown and Mr Obeid on this issue:

“However, if you are at this point then you have at least to some extent already rejected his contention because you will be satisfied that the Crown proved 3(a) of the hand-out beyond reasonable doubt. Nevertheless you should consider his points and give them such weight as you consider appropriate.”

b   Mr Obeid’s submissions

38. Mr Obeid’s submissions on this ground encompassed two strands. First, he submitted that there was no duty of the nature of that alleged by the Crown such that he could not be convicted of the offence irrespective of his motivation or intention in speaking to Mr Dunn. Second it was submitted that to the extent that there was a duty at law, the trial judge erred in giving the direction to which I have referred at [36] above, and particularly his statement that Members of the Legislative Council must act only according to what they believe to be in the public interest and the interests of the electorate and must not use their position for the purpose of promoting their own pecuniary interests or those of their family or entities close to them. Consistent with the submission that no duty of the nature of that alleged existed, senior counsel for Mr Obeid declined to formulate the direction which should have been given.

39. Mr Obeid in his written submissions described the duty as a double duty, in the sense that there would be a breach if the Crown could prove either that Mr Obeid did not act wholly in accordance with what he believed to be both in the public interest and in the interests of the electorate, or that he used his position in any respect for the purpose of promoting his own pecuniary interests or those of his family or entities close to him. He submitted that the jury may have found a breach of both duties or only one.

40. Mr Obeid pointed to a number of other matters which he submitted highlighted the difficulties involved with the duty. Of these matters, senior counsel for Mr Obeid highlighted the fact that the duty was what he described as a sole purpose duty, in that notwithstanding being motivated by the public interest or the interests of the electorate, if the Member of Parliament was motivated by some other purpose, there would be a breach of the duty. Mr Obeid’s written submissions pointed to other matters which he contended demonstrated that a breach would occur even if there was no pecuniary benefit, or no matter how benign the ulterior motive was. He also submitted there would be a breach where the Member of Parliament believed his conduct was in the public interest but not in the interests of the electorate. He also contended that the duty applied to the performance by a Member of Parliament of all of their functions both within and outside Parliament without qualification, and took no account of compliance by Members of Parliament with parliamentary standards regarding disclosures of conflicts of interest or pecuniary interests.

41. It was also submitted by senior counsel for Mr Obeid that in the formulation of the duty there was no concept of a substantial or dominant purpose.

42. During the course of argument senior counsel for Mr Obeid rejected the suggestion that the direction could be read as suggesting that the motivating purpose must be what the Member of Parliament believes to be in the public interest or the interests of the electorate. He submitted that at the least, there had to be a real risk that the jury may have interpreted the duty as formulated in Mr Obeid’s written submissions.

43. Mr Obeid in his written submissions identified 15 reasons why he said the duty was wrong in law. The first and the third of these reasons were that the duty was entirely without precedent or recognised by any authoritative source.

44. It was submitted that any obligation of the nature of that which arose was a duty of imperfect obligation, not cognisable in a court of law as a legal duty. It was submitted that the duty had no legal provenance and any duty of the kind in question did not extend beyond parliamentary action. Senior counsel for Mr Obeid submitted that these propositions were consistent with what was said by Isaacs J in Wilkinson v Osborne (1915) 21 CLR 89; [1915] HCA 92 at 98. He also submitted that the statements by Isaacs and Rich JJ in R v Boston (1923) 33 CLR 386; [1923] HCA 59 at 402 showed that discharge of the duty is necessarily left to the member’s conscience.

45. He further submitted that any obligations of the kind in question were subject to the special provisions of any relevant law and may be modified by statute, and further that any duty was subject to “evolutionary modification”, the chief of which he described as the development of modern party politics. In that context, senior counsel for Mr Obeid submitted that it was necessary to consider the duty in the context of the Constitution (Disclosures by Members) Regulation 1983 (NSW) (the Regulation) made under s 14A of the Constitution Act 1902 (NSW) (the NSW Constitution) and the Code of Conduct adopted by the Legislative Council on 21 June 2007 (the Code).

46. Senior counsel for Mr Obeid referred to the fact that s 14A(1) of the NSW Constitution empowered the Governor to make regulations relating to disclosure of various pecuniary interests, including any other direct or indirect benefits, advantages or liabilities whether pecuniary or not of a kind specified in the Regulation (s 14A(1)(xii)), whilst s 14A(1)(b) and (c) empowered regulations as to the manner in which disclosure could be made. He also pointed to the fact that s 14A(2) provided that a sanction for wilful non-disclosure contrary to the Regulation was that the House may declare the Member’s seat vacant. It should be noted that in Obeid v R supra at [47] this Court concluded there was nothing to suggest that the s 14A(2) mechanism or the Code support an exclusive jurisdiction of Parliament in respect of offences of the nature of that alleged against Mr Obeid.

47. Senior counsel for Mr Obeid submitted that the Regulation directed what pecuniary interests were to be disclosed and pointed out that they only covered pecuniary interests of Members of Parliament and not their family or associates. He also pointed to the obligation to keep the register of disclosure up-to-date, submitting that the policy behind that was that anyone dealing with a Member of Parliament could see his or her pecuniary interests and that there was what he described as a countervailing alleviation of “ad hoc” disclosure responsibility on Members of Parliament. He also pointed to cl 16 of the Regulation, which provided that a Member at his or her discretion may disclose any direct or indirect benefits, advantages or liabilities which the Member considers might appear to raise a conflict between his or her private interests and his or her public duty as a Member, or which he or she otherwise desires to disclose, emphasising that such disclosure was voluntary.

38. Senior counsel for Mr Obeid also pointed to the Code submitting, relevantly for this ground, that it created a code of conduct intra-murally within Parliament. He pointed to the fact that there was no reference to the Court being empowered to deal with any matters covered by it.

39. Senior counsel for Mr Obeid referred to the preamble to the Code, noting the acknowledgment by Members of the House to maintain the public trust placed in them and use their influence to advance the common good of the people of NSW, together with the acknowledgment by Members of Parliament that their principal responsibility is serving the people of NSW. He submitted that the fact that these statements were not in the substantive part of the Code suggested that they were treated as non-binding acknowledgments.

40. Senior counsel for Mr Obeid submitted that the Code was “some form of exhaustive or definitive statement or obligation”. He pointed out that the Code did not contain the duty of which complaint was made. He referred to the fact that the Code recognised in cl 6 that organised parties formed part of the political system. He submitted that loyalty to a particular political party may involve voting for something which the Member of Parliament did not believe to be in the public interest. In relation to conflicts, he pointed out that cl 1(a) of the Code only refers to decisions in which Members of Parliament participate in the execution of their office, and does not include a conflict in speaking to a public servant.

41. In his written submissions Mr Obeid submitted that the duties were too broad and would catch examples of common conduct by Members of Parliament including supporting party policy regardless of his or her individual beliefs, engaging in fundraising activities, and engaging in conduct which although the Member of Parliament believed to be in the public interest, was also motivated by some “purely personal (but benign) motive or concern”. Significantly none of the examples given, except one, include conduct where the motivating purpose was the advancement of the Member of Parliament’s pecuniary interests. The only example which involved a Member of Parliament being partly motivated by pecuniary interests was the example of a Member who was motivated in part by a desire to be re-elected to obtain greater pension or superannuation benefits. That example is far removed from the present case.

42. As what he described as a fallback position, senior counsel for Mr Obeid submitted if there were any such duties as alleged, it would need a reference to a substantial or dominant purpose which the direction as formulated failed to do.

c   The Crown’s submissions

53. The Crown’s submissions on the nature of the duty were primarily contained in the written submissions and in a note handed up during the course of the hearing. However, at the hearing it was contended that the trial judge had correctly formulated the duty in R v Obeid (No 2) [2015] NSWSC 1380 where his Honour made the following comments:

“[75]   Just as with the duties of a fiduciary, the various statements in Wilkinson, Horne and Boston as to the nature and scope of a parliamentarian’s duty reduce to a negative obligation not to use their position to promote their own pecuniary interests (or those of their families or entities close to them) in circumstances in which there is a conflict, or a real or substantial possibility of a conflict, between those interests and their duty to the public.

[76]   On this approach, and subject to hearing from the parties in this case, the jury would be instructed that the functions of MLCs extend to scrutinising the executive government of this State including the actions of Maritime. They would also be instructed that, unless it is self-evident that an MLC is only dealing with the executive in their personal capacity, an MLC’s functions extend to communicating with government Departments. Further, the jury would be instructed that, in so dealing, MLCs must not promote their own pecuniary interests (or those of their families or entities close to them) in circumstances in which there is a conflict, or a real or substantial possibility of a conflict, between those interests and their duty to the public. It would also follow that the jury would have to be instructed that, to conclude that Mr Obeid wilfully misconducted himself, they would have to be satisfied that in the circumstances he knew or was reckless that he was precluded from using his position to make representations to the Executive or its employees for the purpose of financially benefiting himself or members of his family or entities closely associated with himself or members of his family, but nevertheless chose to do so.”

54. The Crown also pointed to the fact that on appeal from that decision, in Obeid v R supra, this Court (at [148]) stated that this formulation of the duty substantially conformed to what Meagher JA said in Sneddon v State of NSW [2012] NSWCA 351 at [218]. In that paragraph Meagher JA made the following remarks:

“[218]   The general duty of a member of the Legislative Assembly has been described as being ‘to serve and, in serving, to act with fidelity and with a single-mindedness for the welfare of the community’: per Isaacs and Rich JJ in The King v Boston [1923] HCA 59; 33 CLR 386 at 400. That service involves a duty to attend and vote and includes participation in the constitutional and parliamentary functions described above. From the member's perspective those functions were described by Isaacs and Rich JJ in The King v Boston (at 401) as ‘moulding the laws to meet the necessities of the people, and the function of vigilantly controlling and faithfully guarding the public finances’; and by Isaacs J in Horne v Barber [1920] HCA 33; 27 CLR 494 at 500 as ‘watching on behalf of the general community the conduct of the Executive, of criticising it, and, if necessary, of calling it to account in the constitutional way by censure from his place in parliament’. Each of those functions is required to be performed by a judgment and conscience ‘uninfluenced, as far as possible, by other considerations, and least of all by those of a pecuniary nature’: per Lord Lyndhurst in Egerton v Brownlow (1853) 4 HLC 1 at 161; 10 ER 359 at 423 cited in Wilkinson v Osborne [1915] HCA 92; 21 CLR 89 at 94, 98; and in Horne v Barber at 499.”

55. The Crown submitted that in considering the question of whether the conduct alleged in the indictment could constitute the offence of misconduct in public office, it was important to have regard to the fact that a public office is a public trust. The Crown, referring to what was said by Lord Selborne LC in Kinloch v The Secretary of State for India in Council (1882) 7 App Cas 619 at 625-626 (in a different context) described this “public trust” as one which respects higher matters, such as might take place between the Crown and public officers discharging duties or functions belonging to the authority of the Crown, in contrast to a trust administered in the equitable jurisdiction of the Court. It was submitted that that concept encapsulates the common law’s insistence that public officials adhere to fiduciary standards of behaviour, without being a fiduciary in the legal sense. The Crown submitted that the fundamental obligation of Members of Parliament in carrying out their functions was to act with fidelity and single-mindedness to the welfare of the community. It was submitted, referring to Wilkinson v Osborne supra, Horne v Barber (1920) 27 CLR 494; [1920] HCA 33 and R v Boston supra, that parliamentarians have a duty not to use their position to promote their own pecuniary interests (or those of their family or entities close to them) in circumstances where there is a conflict, or a real or substantial possibility of conflict between those interests and their duty to the public. It was submitted that the duty derives from the nature of the office, not from any code of conduct resolved upon by the relevant House of Parliament.

56. The Crown submitted that it was incorrect to describe the duty as a twofold or double duty as submitted by Mr Obeid. It was submitted that one of the limbs was positive, namely that a parliamentarian must act in the public interest and the other negative, namely, that a parliamentarian must not act in his or her own interest. The Crown also submitted that any possible conflict between the interests of the public and the interests of the electorate was not in issue at the trial, where the breach alleged was that Mr Obeid acted solely for his personal or his family’s pecuniary interests.

57. The Crown submitted that it was incorrect to suggest the duty was without precedent and submitted that such a suggestion was contrary to case law in Australia and other jurisdictions. The Crown pointed to the statement of Isaacs J in Horne v Barber supra at 500 to the effect that “the law will not sanction or support the creation of any position of a member of Parliament where his own personal interest may lead him to act prejudicially to the public interest”. The Crown submitted that the existence of the duty was supported by what was said by the High Court in Re Day (No 2) [2017] HCA 14; (2017) 91 ALJR 518 at [49]-[50], [179], [269]. The Crown submitted that neither the NSW Constitution, the Regulation, nor the Code constrained the common law obligations of a Member of Parliament. It was submitted that the fact that parliamentarians were required to register their pecuniary interests, did not constrain or eliminate the common law obligations imposed on them. The Crown submitted that whilst Parliament had exclusive jurisdiction in respect of all matters relating to the obligation of a Member of the Legislative Council to disclose his or her pecuniary interests, including measures taken to enforce compliance and deal with non-compliance, this did not derogate from the Court’s jurisdiction in respect of the offence charged.

58. The Crown submitted that in considering Mr Obeid’s “fallback” position, namely, the particular complaint about the direction, it was inappropriate to take snippets of the summing-up divorced from their context. The Crown pointed to that part of the summing-up set out at [34] above and the subsequent exchange in the absence of the jury referred to at [35]. It was submitted that the subsequent directions made explicit that the case did not concern arguments over differences of opinion as to what was in the interests of the electorate and the public. Rather, it instead concerned the requirement that Members of Parliament only act in what they believe to be in the public interest and in the interests of the electorate, and must not to be motivated by personal pecuniary considerations. The Crown submitted that considered in that context, the criticism of the direction had not been made out.

59. The Crown submitted at the hearing that the effect of the direction to which I have referred above, was that before the jury came to consider the duty to which they were directed, they would have already found beyond reasonable doubt that Mr Obeid had made representations to Mr Dunn for the purpose of promoting his and his family’s financial interests and not pursuant to any belief that speaking to Mr Dunn was in the public interest or in the interests of the electorate.

Consideration

a   The duty

60. In a passage approved by this Court in Obeid v R supra, the Victorian Court of Appeal in R v Quach (2010) 27 VR 310; [2010] VSCA 106 stated (at [46]) the elements of the offence of misconduct in public office in the following terms:

“[46] …

(1)   a public official;

(2)   in the course of or connected to his public office;

(3)   wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;

(4)   without reasonable excuse or justification; and

(5)   where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.”

61. It will be necessary subsequently to turn to a challenge to a particular aspect of the decision in Quach, namely, the complaint concerning the fifth element (Ground 6 of the grounds of appeal) but subject to this matter, the formulation of the elements of this offence in these terms is at least in this Court settled and was not subject to challenge on this appeal. Further, it should be noted in respect of Ground 3 of the grounds of appeal, namely, the trial judge made a wrong decision on a question of law in directing the jury that a Member of the Legislative Council is caught by the common law offence of official misconduct, that Mr Obeid accepted that the submission was contrary to what was said by this Court in Obeid v R supra and only made a formal submission that that case was incorrectly decided.

62. In these circumstances, the essence of Mr Obeid’s argument was that even accepting that the offence can apply to a Member of the Legislative Council, engaging in conduct of the nature of that alleged in the indictment could not constitute such an offence. On the face of it, it is difficult to see why this is correct. Members of Parliament are appointed to serve the people of the State, including their constituents and it would seem that a serious breach of the trust imposed on them by using their power and authority to advance their own position or family interests rather than the interests of the constituents who they are elected to serve, could constitute an offence of the nature of that alleged.

63. However, it was submitted by Mr Obeid that the duty imposed on a parliamentarian was a matter of conscience not subject to legal sanction. The authorities to which he referred do not in my opinion support the proposition. It is correct as senior counsel for Mr Obeid pointed out, that in Wilkinson v Osborne supra, the issue was whether a contract between a landowner and two parliamentarians by which the parliamentarians agreed to pressure the government to purchase certain lands was void as contrary to public policy. However, nothing was said to indicate there would not be a criminal sanction for such conduct in an appropriate case. Griffith CJ stated (at 94): “[i]t would be deplorable that any doubt should be allowed to exist as to whether such a bargain is tolerated by the civil – I say nothing of the criminal – law”. Isaacs J, citing Lord Lyndhurst in Egerton v Brownlow (1853) 4 HLC 1 at 161, stated (at 98) that the duty of a member of the legislature was “[i]n the framing of laws it is his duty to act according to the deliberate result of his judgment and conscience, uninfluenced, as far as possible, by other considerations, and least of all by those of a pecuniary nature”.

64. Horne v Barber supra, was also a case where an agreement between the parties involved the use of a Member of Parliament to procure the sale of a property to the government. The agreement was held void as against public policy. Knox CJ and Gavan Duffy J described the agreement in the following terms (at 499):

“It is abundantly clear that the agreement sued on in this case afforded an inducement to Mr. Deany to misuse his position and influence as a member of Parliament for his own pecuniary gain as a commission agent, and was also calculated to hamper him in forming an unbiased judgment and in expressing a free and honest criticism on the transaction as an act of the Executive Government or its agents. It had, to adopt the words of Lord Lyndhurst in Egerton v. Brownlow, a tendency to interfere with the proper discharge of the duties of Mr. Deany as a member of Parliament, and was consequently opposed to the public good.”

65. Isaacs J agreed, stating the duties of a Member of Parliament as follows (at 500):

“When a man becomes a member of Parliament, he undertakes high public duties. Those duties are inseparable from the position: he cannot retain the honour and divest himself of the duties. One of the duties is that of watching on behalf of the general community the conduct of the Executive, of criticizing it, and, if necessary, of calling it to account in the constitutional way by censure from his place in Parliament—censure which, if sufficiently supported, means removal from office. That is the whole essence of responsible government, which is the keystone of our political system, and is the main constitutional safeguard the community possesses. The effective discharge of that duty is necessarily left to the member’s conscience and the judgment of his electors, but the law will not sanction or support the creation of any position of a member of Parliament where his own personal interest may lead him to act prejudicially to the public interest by weakening (to say the least of it) his sense of obligation of due watchfulness, criticism, and censure of the Administration.”

66. Rich J stated the duty in a similar fashion (at 501):

“Members of Parliament are donees of certain powers and discretions entrusted to them on behalf of the community, and they must be free to exercise these powers and discretions in the interests of the public unfettered by considerations of personal gain or profit. So much is required by the policy of the law. Any transaction which has a tendency to injure this trust, a tendency to interfere with this duty, is invalid.”

67. Neither of these cases involved criminal prosecutions. However, in each of them the justices explained the high public duty imposed upon Members of Parliament and that the law would intervene when a breach occurred. Although each case only involved civil actions, nothing that was said indicated that in an appropriate case criminal sanctions could not apply.

68. R v Boston supra was discussed extensively in Obeid v R supra at [71]-[97] in the context of the question of whether a Member of the Legislative Council was a public officer. It is unnecessary to repeat what was said in that case. However, of direct relevance to the present case are the following remarks made by Isaacs and Rich JJ (at 400):

“The fundamental obligation of a member in relation to the Parliament of which he is a constituent unit still subsists as essentially as at any period of our history. That fundamental obligation, which is the key to this case, is the duty to serve and, in serving, to act with fidelity and with a single-mindedness for the welfare of the community.”

In dealing with the second count on the indictment, Isaacs and Rich JJ also made the following remarks which are relevant to the present case (at 402-403):

“In these circumstances does the second count sufficiently charge an agreement to violate the duty of a member of Parliament? It is quite true, as urged on behalf of the respondents, that a member’s legal duty does not extend beyond his parliamentary action, including in that whatever he is lawfully deputed by Parliament to do, and, therefore, it does not extend to visiting Departments and advising Ministers or interviewing subordinate officers. It is an everyday experience that members of Parliament can and do in many legitimate ways materially and honourably aid the Administration by assistance and advice outside the walls of Parliament. This unofficial aid to the conduct of public business is in effect a recognized adjunct to his parliamentary position, and ceases with it. But if intervention by a public representative be impelled by motives of personal gain, if it be the outcome of an agreement based on some pecuniary, or what is equivalent to a pecuniary, consideration and constituting the member a special agent of some individual whose interests he has agreed to secure—interests that are necessarily opposed pro tanto to those of the community—the whole situation is changed. To apply some words in Wilkinson v. Osborne in the judgment of Isaacs J., he who had been appointed to be a sentinel of the public welfare becomes a “sapper and miner” of the Constitution. The power, the influence, the opportunity, the distinction with which his position invests him for the advantage of the public, are turned against those for whose protection and welfare they come into existence.”

NEIL: So I have to accept the converse.

But only in that respect, that is, we say, however, there was a financial benefit and it was of the nature that we've addressed in our written outline. The more relevant aspect is, there was no loss to the public, as things turned out. All I would say further is that that perhaps is just a matter of happenstance, it's the way it was. …" (AB 2219-2220)

401. It was submitted that, in contrast, the idea that institutions of government had been harmed in a way which ought to be treated as a matter of aggravation was never suggested by the Crown or raised by the primary judge for consideration. On this basis, Mr Obeid was denied procedural fairness in that he was denied the opportunity to make submissions on the issue, or failed to do so by reason of an indication from the sentencing judge that ultimately proved to be incorrect.

402. It was further submitted that damage to the institutions of government does not fall within the meaning of "loss or damage". Those words relate to matters which are ascertainable, quantifiable and capable of objective proof and determination, as indicated by the use of the words "substantial" and "not substantial" in ss 21A(2)(g) and 21A(3)(a) respectively.

403. Support for this construction was said to be derived from the terms of s 21A(3)(i) which provides for remorse as a mitigating factor "but only if (i) … , and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)".

404. The Crown submitted that the passage from the sentence judgment at [127] involved his Honour dealing with the submission that the mitigating factor in s 21A(3)(a) should be found. It should be characterised as a determination that the matter should be accorded little or no weight.

405. The Crown submitted that Mr Obeid's submissions conflated aggravating and mitigating factors. The primary judge did not treat this as a matter of aggravation. The only aggravating factor raised by the Crown was that the offence was committed for financial gain, s 21A(2)(o). The primary judge rejected that contention because "this has formed part of the assessment of the level of criminality involved in the commission of the offence" and "cannot be considered as a further aggravating factor": Obeid (No 12) at [126].

Consideration

406. Mr Obeid referred to Dang v R [2014] NSWCCA 47 at [45] where Adamson J (Simpson and Davies JJ agreeing) described the concept of denial of procedural fairness in sentencing proceedings as follows:

"The question whether a party has been denied an opportunity to be heard, being a matter of substance, must be determined by reference to the circumstances during the proceedings. The real question is whether there has been actual unfairness, not whether there has been a disappointment because an expectation engendered by the decision-maker has not been fulfilled: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 (Lam) at [34] per Gleeson CJ. Commonly, unfairness will arise where someone has been deprived of the opportunity to make submissions or has failed to make submissions by reason of an indication, which ultimately proves to have been false, from the decision-maker."

407. The paragraph in the sentence judgment with which these grounds are concerned ([127]) is best understood in light of what Beech-Jones J had said earlier.

408. At [73]-[79] his Honour reviewed a number of authorities to which he had been referred concerning sentencing for the offence of wilful misconduct in public office and then stated (at [79]):

"These cases illustrate the variety of public officials who can commit the offence of wilful misconduct in public office and the variety of circumstances that can constitute the crime. These cases also illustrate that matters such as the period of the offending, the planning involved, its motivation and the direct loss occasioned or profit derived are all matters that bear upon an assessment of the level of criminality involved. However, the essence of the offence concerns a breach of trust in the form of a deliberate or reckless breach of a duty owed by a public official to the public. It must follow that a very significant matter to any assessment of the level of criminality involved is the nature of the duty that is owed and the extent of the breach. The more senior the public official the greater the level of public trust in their position and the more onerous the duty that is imposed. Under this State's constitutional arrangements, and leaving aside the third arm of government, only Ministers occupy a more senior position than that occupied by parliamentarians." (Citations omitted)

409. His Honour then referred (at [80]-[81]) to five cases identified by the Crown that involved offences committed by, or concerned, parliamentarians, including Ministers. He identified some common propositions ([83]-[87]):

"First, with the exception of [one case], all these cases emphasise the onerous duty imposed on either parliamentarians or Ministers and the strictness with which departures from that duty will be dealt with … .

Second, while in some of the cases issues such as whether loss or damage was occasioned by the offending or a profit was made were relevant, in all the cases the Courts emphasised that the real damage caused by the offending conduct was to the institutions of government and public confidence in them … .

Third, in each case the necessity for the sentence to reflect considerations of general deterrence and denunciation predominated over other sentencing considerations … .

Fourth, in each case the prior good character of the offender was afforded less weight in the sentencing process than it would for other offences … . (Citations omitted)

410. His Honour then stated (at [87]): "All of these propositions are apposite to Mr Obeid's case".

411. Immediately following this, and before turning to a discussion of Mr Obeid's subjective case, his Honour provided his reasoning concerning the relative seriousness of the offence (at [88]-[89]):

"At this point it is appropriate to address the competing submissions concerning the relative seriousness of Mr Obeid's offending. I have already described Mr Obeid's conduct and the state of mind that accompanied it. It is to be remembered that his offending conduct comprised a single phone call to Mr Dunn, although it was accompanied by follow up calls. As was submitted on behalf of Mr Obeid, he did not expressly advocate any outcome to Mr Dunn although the effect of his intervention was that the position Mr Scanlan was advocating should be strongly considered. Further, in the end result Mr Obeid's intervention did not cause a change in the CLP. Relying on these and other matters it was submitted on behalf of Mr Obeid that his offending was "at the very bottom of the scale of objective seriousness for an offence of its kind." I disagree. For the reasons I have just explained, what must be at the forefront of any consideration of seriousness is the nature of the duty owed by Mr Obeid as a parliamentarian and the extent of the departure from that duty. The onerous nature of the former has been addressed. The relatively limited nature of Mr Obeid's intervention in the process of renewing CQR's leases bears on the latter but so does the finding of the jury that Mr Obeid intervened solely to benefit CQR, and through it, himself or his family.

It can be accepted that Mr Obeid's conduct was in the middle to lower end of the range of corrupt conduct by a parliamentarian that may amount to the crime of wilful misconduct in public office. However, that is not the proper inquiry. Instead, the relevant assessment is that, in the range of misconduct that might be engaged in by public officials which can constitute the offence of wilful misconduct in public office, Mr Obeid's conduct was a very serious example of the offence because of the onerous nature of the duty owed by him as a parliamentarian compared to other such officials and the extent of his departure from it." (Footnote omitted)

412. Mr Obeid had submitted that the mitigating factor in s 21A(3)(a) applied. The Crown accepted in the exchange with the judge extracted above that a paragraph in the written submissions for Mr Obeid on sentence was correct. That paragraph read, "The Crown conceded during the course of the trial that the favourable outcome that was achieved in favour of the tenants was not achieved as a result of Mr Obeid's conduct".

413. There was no error in the judge referring (in [127]) to violation of public trust and damage to the institutions of government as a countervailing feature that he had taken into account in his assessment of the seriousness of Mr Obeid's offending. It may well have affected the weight he gave to the mitigating factor Mr Obeid relied upon, but that was entirely a matter for his Honour's discretionary assessment.

414. It cannot be said, however, that his Honour took this matter into account as an aggravating factor pursuant to s 21A(2)(g). Mr Obeid did not identify any explicit statement by his Honour that he did so. In fact, his Honour's only reference to s 21A(2) aggravating factors was his rejection, as noted above, of the Crown's submission concerning s 21A(2)(o) (offence committed for financial gain).

415. In these circumstances it is unnecessary to deal with the submission (which was not supported by authority) that "loss or damage" in s 21A(2)(g) must be ascertainable, quantifiable and capable of objective proof and determination.

416. It is correct, as Mr Obeid asserts, that "at no stage did the Crown suggest, nor did his Honour raise for consideration with either party, the idea that institutions of government had been harmed in a way which ought to be treated as a matter of aggravation". But, as just mentioned, the matter wasn't "treated as a matter of aggravation". Nevertheless, Mr Obeid was on notice that the Crown put in its written submissions (at [37]), under the heading "Objective Criminality" (after referring to one of a number of cases presently unnecessary to mention):

"It is submitted, by analogy, that the accused's conduct in misusing his public office to benefit both himself and his family is no less serious because the misconduct did not result in a loss to the Maritime Authority. The loss is to the public in its loss of trust in members of parliament. This has the tendency to undermine public confidence in our democratic system of government."

417. Damage to the institutions of government was a relevant matter for his Honour to take into account in his assessment of the seriousness of the offence. It is as uncontroversial as taking into account damage to financial markets, investor confidence and the like in offences concerned with insider trading, stock market manipulation and general commercial fraud: see, for example, R v Hannes [2002] NSWSC 1182; R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [412]; Director of Public Prosecutions (Cth) v Couper [2013] VSCA 72; 229 A Crim R 115 at [105]-[109]; Khoo v R [2013] NSWCCA 323; 237 A Crim R 221 at [7]-[10].

418. In summary, there was no denial of procedural fairness. His Honour did not reject the submission that the mitigating factor in s 21A(3)(a) applied, although he did mention that there was a countervailing factor. Moreover, he did not take into account the matter he mentioned at the end of [127] of his judgment as an "aggravating factor" pursuant to s 21A(2)(g). It was simply something that bore upon his assessment of the relative seriousness of the offence.

419. These two grounds must be rejected.

Ground 13 - the sentence is manifestly excessive

The sentence judgment

420. In light of the various issues raised under this ground it is necessary to review the factors that Beech-Jones J took into account in the assessment of sentence in more detail.

421. His Honour's assessment of the objective seriousness of the offence has been set out above (at [411]). To reiterate, he found that "in the range of misconduct that might be engaged in by public officials which can constitute the offence of wilful misconduct in public office, Mr Obeid's conduct was a very serious example of the offence because of the onerous nature of the duty owed by him as a parliamentarian compared to other such officials and the extent of his departure from it".

422. The judgment then turned to a discussion of Mr Obeid's subjective case.

423. Beech-Jones J found Mr Obeid to be of prior good character but said (at [94]):

"[I]n cases of corruption including wilful misconduct in public office where the need for general deterrence is especially strong, prior good character is to be afforded less weight than it otherwise would (R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [410] and R v Williams (2005) 152 A Crim R 548, at [60] per Wood CJ at CL; Blackstock at [67] per Campbell J with whom Macfarlan JA and Barr AJ agreed)."

424. His Honour accepted that incarceration would cause significant distress to Mr Obeid's wife and that this in turn would cause distress to Mr Obeid, however it did not meet the description of "exceptional circumstances". He accepted that Mr Obeid's reaction to the harm that his own offending caused to his family can be considered in the synthesis of various factors affecting the appropriate sentence.

425. The judge discussed at some length a submission that Mr Obeid had suffered a form of extra curial punishment as a result of extensive media coverage which, it was submitted, had humiliated him and affected members of his family. His Honour noted that none of the testimonial material or a psychological report described any direct physical or psychological effect on Mr Obeid. He accepted that there had been an effect upon the family and said (at [103]), "it is only in the relatively limited sense that Mr Obeid is affected by their suffering from the consequences of his offending that this can be considered".

426. His Honour afforded the potential loss of Mr Obeid's parliamentary pension "some weight, but not much" as the only evidence that it may occur was media reports.

427. Next, the primary judge considered Mr Obeid's ill-health, age and life expectancy. He accepted that Mr Obeid would receive a superior level of care in the community but was satisfied that he would receive an adequate level of care if he was incarcerated. He found that Mr Obeid's life expectancy was within the range of 77-80 years. It was accepted that Mr Obeid's ailments may make time in custody more difficult. It was not accepted that the combination of Mr Obeid's age, health and reduced life expectancy was of any real significance to determining whether he should be incarcerated or not. However, those factors were taken into account in the mix of factors relevant to the determination of the appropriate length of sentence, but "not to any significant degree". His Honour noted that they could be relevant to a finding of special circumstances but noted the need to avoid double counting matters already taken into account when determining the head sentence when setting the non-parole period.

428. Beech-Jones J found that there was no undue delay. He noted that, according to authority, delay may be relevant in three respects. He found that this was not a case in which the offender had been left in a state of uncertain suspense. Progress in rehabilitation was not relevant as Mr Obeid would be sentenced on the basis that there is no prospect of him re-offending. Finally, his Honour did not accept that Mr Obeid's offence could be characterised as a "stale crime".

429. Reference has been made above to his Honour's rejection of the Crown's submission that the offence was aggravated by it being committed for financial gain (s 21A(2)(o)).

430. Four of the eight mitigating factors under the Crimes (Sentencing Procedure) Act raised by Mr Obeid were established: no prior convictions (s 21A(3)(e)), good character (s 21A(3)(f)), unlikelihood of reoffending (s 21A(3)(g)) and good prospects of rehabilitation (s 21A(3)(h)).

431. The mitigating factor in s 21A(3)(a) (injury, emotional harm, loss or damage not substantial) has been discussed earlier under Grounds 11 and 12. His Honour accepted that there was no loss or damage, in the sense that the representations to Mr Dunn had no effect on the ultimate decision to offer CQR new leases, but there was the countervailing factor of damage to the institutions of government when public trust is violated.

432. His Honour accepted that some leniency was warranted because of the manner in which the trial had been conducted by and on behalf of Mr Obeid (s 22A) which resulted in a shortening of the length of the trial and made easier an identification of the real issues that the jury had to determine.

433. His Honour rejected submissions that the mitigating factors of remorse (s 21A(3)(i)) and the offence not being part of planned or organised criminal activity (s 21A(3)(b)) were established.

434. His Honour commented (at [134]) that:

"If Mr Obeid had not wilfully abused his position as a parliamentarian then his life and career would be a testament to the values of hard work, family and public service. Instead, his time in public life has produced a very different legacy."

435. With reference to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act, his Honour said, in effect, that protection of the community, personal deterrence and promotion of Mr Obeid's rehabilitation were irrelevant given there was no prospect of him further offending.

436. He discussed the impact of corruption by elected representatives; how it consumes democracies and destroys public confidence in democratic institutions and then said (at [138]):

"It follows that the need for general deterrence, denunciation and recognition of the harm done to the community are the dominant considerations in determining the appropriate sentence for a parliamentarian convicted of wilful misconduct in public office in these circumstances. …"

437. The judge found that no penalty other than imprisonment was appropriate and that the sentence must be one of full-time imprisonment for such a term that the options of home detention and an intensive correction order were not available. Pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act he found that there were special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole period, those circumstances being Mr Obeid's age and health.

Submissions

438. The overarching submission put by Mr Obeid was that "[t]he objective gravity of the offending conduct was towards the lowest end of the spectrum and a significant number of subjective features warranted mitigation".

439. As to the objective seriousness of the offence, the written submissions referred to the following matters:

a)   The offence was not planned.

b)   The offence was constituted by a single telephone call.

c)   The extent of the departure from Mr Obeid's duty as a public official was not gross because his conduct was not contrary to the public interest.

d)   Mr Obeid's conduct did not have any impact upon the ordinary, bureaucratic processes.

e)   Mr Obeid's actions would not have resulted in any diminution in public confidence in the effective operation of the institutions of government.

f)   Mr Obeid's representation that the leaseholders had been poorly treated by the Maritime Authority was no different from representations made by others and there was no suggestion that the representation was false.

g)   Mr Obeid received no benefit and no financial loss was occasioned.

h)   There was no inherent evil in what Mr Obeid did.

i)   The prosecution did not attempt to specify what Mr Obeid might have hoped to achieve aside from an unspecified "favourable outcome".

440. In his written reply submissions, Mr Obeid contended that a statutory analogue provides a reference point for determining the maximum penalty appropriate to what might be regarded as a worst possible case of the common law offence. Here, Mr Obeid's conduct fell well short of "worst case" for the following reasons:

• There was no evidence, or inference, of loss of public trust or impact upon the decision-making process.

• There was no evidence that Mr Obeid had directed Mr Scanlan as to what he should say, that he had knowledge of what propositions Mr Scanlan might advance, or what position Mr Scanlan might adopt as any discussions developed.

• Conduct by a public official which is reprehensible even in the absence of a duty ought be viewed more seriously than conduct which only becomes reprehensible by virtue of the duty.

• The conduct comprised a single telephone call, as found by the sentencing judge. There was no evidence that the follow-up calls involved any attempt to influence Mr Dunn or to affect the decision-making process.

• There was no evidence that Mr Obeid had "primed" Mr Dunn in any respect. The gravamen of the offending was the establishing of contact between Mr Dunn and Mr Scanlan.

441. As to Mr Obeid's subjective case, the submissions highlighted the following features:

• No prior convictions.

• Positive evidence of good character and contributions to the community.

• Extra curial punishment.

• Ill-health.

• Significantly harsher custodial conditions as a result of ill-health.

• Age of 73 at sentencing and life expectancy between 77 and 80.

442. Mr Obeid's loss of his parliamentary pension which was mooted in media reports at the time of sentencing had become the reality by the time of the hearing of the appeal with the enactment of the Parliamentary Contributory Superannuation Amendment (Criminal Charges and Convictions) Act 2017 (NSW). However, the amendments have the effect that this could not be taken into account, even if this Court was to find error and reconsider sentencing afresh.

Principles

443. When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this Court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

Consideration of objective seriousness issue

444. There is no ground of appeal asserting error on the part of Beech-Jones J in his assessment of the objective seriousness of the offence. In the main, the argument in this Court proceeded as if it was open to this Court to make a fresh assessment. Such an approach is contrary to authority.

445. In Mulato v R [2006] NSWCCA 282, Spigelman CJ stated (at [37]):

"Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which [the judge] gave to the circumstances of the offence was open to her [or his] Honour."

446. Simpson J (as her Honour then was) added (at [46]):

"The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."

447. In the absence of a ground of appeal asserting an error in the assessment of the objective seriousness of the offence it is usually the case that this Court will assess a ground asserting manifest excess (or inadequacy) on the basis of the finding made by the sentencing judge. However, in deference to the detailed argument presented by Mr Obeid, it is appropriate to say something (albeit briefly) about the various points he sought to make.

(a)   the offence was not planned

448. Mr Obeid referred to the primary judge having found "no evidence of any planning". In fact, the judge said (at [128]), "the Crown did not prove that Mr Obeid had been planning to intervene in the lease renewal process for some time". His Honour was dealing with a submission that the mitigating factor in s 21A(3)(b) of the Crimes (Sentencing Procedure) Act (the offence was not part of a planned or organised criminal activity) should be found. His Honour rejected that submission on the basis that, while the above was true, "it was not positively established that his actions were spontaneous". Given the onus was upon Mr Obeid to establish mitigating factors (on the balance of probabilities) this conclusion was well open to his Honour.

(b)   the offence was constituted by a single telephone call

449. His Honour acknowledged (at [134]) that the offence was constituted by a single telephone call. It remained open, however, for him to regard the nature of the duty owed by Mr Obeid as a parliamentarian and the extent of his departure from that duty as rendering this "a very serious example of [the] offence".

(c)   the extent of the departure from Mr Obeid's duty as a public official was not gross because his conduct was not contrary to the public interest.

(d)   Mr Obeid's conduct did not have any impact upon the ordinary, bureaucratic processes.

(e)   Mr Obeid's actions would not have resulted in any diminution in public confidence in the effective operation of the institutions of government.

(f)   Mr Obeid's representation that the leaseholders had been poorly treated by the Maritime Authority was no different from representations made by others and there was no suggestion that the representation was false.

450. These matters relate broadly to the same issue and may be dealt with together.

451. The submissions for Mr Obeid acknowledged that "the extent to which the public official has deviated from his duty must be a principal consideration". But it was then contended that there was no evidence that his interest was contrary to the public interest; in fact, his interest coincided with the interests of the other Circular Quay tenants who were among his constituents.

452. It was submitted that advocating for a meeting between Mr Scanlan and the Maritime Authority was not contrary to the public interest. There was no suggestion that Mr Obeid advocated that Mr Dunn should adopt any particular position, let alone one that was contrary to the public interest; nor did Mr Obeid have any reason to believe that Mr Dunn would do so. Further, his Honour found that as far as any meeting between Mr Scanlan and Mr Dunn was concerned, Mr Obeid "was pushing on an open door". Thus, there was no impact upon the ordinary, bureaucratic processes. For these reasons, it was submitted that there was no diminution in public confidence in the effective operation of the institutions of government.

453. The short answer to all of these points is that they were, largely but not entirely, acknowledged and taken into account by the sentencing judge (see, for example, at [55]-[56]). He qualified some of them: for example, he referred to there being no evidence that Mr Obeid was aware of Mr Dunn's attitude to the Circular Quay leases prior to making the telephone call; "it was only sheer chance that, in speaking to Mr Dunn, Mr Obeid was pushing on an open door".

454. The fact that his Honour did not regard these matters as calling for an assessment of the objective seriousness of the offence at a lower level was later explained by his Honour's reference to other pertinent matters (see below at [457]). This is a clear example of the evaluative discretionary assessment that befalls a sentencing judge in relation to issues about which reasonable minds may differ. It is one of the very reasons why this Court is slow to intervene and set aside a finding of objective seriousness: Mulato v R at [37].

(g)   Mr Obeid received no benefit and no financial loss was occasioned.

(h)   There was no inherent evil in what Mr Obeid did.

455. The fact that Mr Obeid received no financial benefit (nor did his family) was acknowledged by the judge (at [57]). He immediately proceeded to say, "However, as I have explained, the effect of the jury's verdict is that it found that he was solely motivated to lobby Mr Dunn to benefit either himself or his family".

456. Similarly, as discussed in the context of Grounds 11 and 12, his Honour acknowledged (at [127]) that no financial loss was occasioned but he proceeded to say, "However, as I have explained, the crime of wilful misconduct in public office necessarily involves a violation of a public trust. When that involves a parliamentarian, damage is caused to the institutions of government, specifically Parliament."

457. Mr Obeid's motivation, the onerous nature of his duty as a parliamentarian, and the extent of his departure from that duty were regarded as more significant in the assessment of the objective seriousness of the offence: Obeid (No 12) at [89]. His Honour's approach in this respect cannot be gainsaid.

458. The contention that "there was no inherent evil" was put on two bases; that Mr Obeid gained no benefit for himself or his family and an assertion that there was nothing improper, reprehensible or inappropriate in the representation made to Mr Dunn. The judge accepted the former. The jury thought otherwise as to the latter; the verdict entailed satisfaction beyond reasonable doubt of the fourth element of the offence that "this crime is not established by an error or a mistake but instead the misconduct 'must be worthy of condemnation and punishment'" (Obeid (No 12) at [53]).

(i)   The prosecution did not attempt to specify what Mr Obeid might have hoped to achieve aside from an unspecified "favourable outcome"

459. It was submitted that there was no evidence as to what gain there might have been, or even what gain Mr Obeid envisaged. To the extent that the benefit was that a meeting between Mr Dunn and Mr Scanlan occurred, the objective gravity of the offence was "at the very lowest end of the spectrum".

460. The Crown case did not involve any specific particularisation of what Mr Obeid might have hoped to achieve. It was merely an unspecified “favourable outcome”. However, it was implicit in the jury's verdict that there was acceptance that he "made the representations for the purpose of promoting his and his family's financial interest" (Summing Up at 65).

Conclusion as to manifest excess

461. The various arguments presented by Mr Obeid in relation to his sentence may be distilled to the following broad proposition: when regard is had to a correct assessment of the objective seriousness of the offence and to the various mitigating subjective factors, the sentence imposed is manifestly excessive. An indication of this was how close the sentence imposed (5 years) was to the maximum penalty for the statutory analogue offence (7 years). Maximum penalties are reserved for cases in the worst category and the present case was not found to be in or near to that category.

462. There are a number of reasons why that overarching proposition should be rejected.

463. First, no error has been demonstrated in relation to any of the grounds of appeal concerned with particular matters.

464. Secondly, the assessment of Mr Obeid's wilful misconduct in public as a very serious example of the offence "because of the onerous nature of the duty owed by him as a parliamentarian compared to other such [public] officials and the extent of his departure from it" was a finding that was well open to the sentencing judge.

465. Thirdly, there is no complaint (and nor could there be) of any failure by the judge to take into account any favourable aspect of Mr Obeid's subjective case. The weight to be afforded to such matters in the assessment of sentence was a matter for his Honour's discretion.

466. Fourthly, the maximum penalty prescribed for the selected statutory analogue offence was, in accordance with principle, regarded by the judge as "a reference point" and not as a fetter upon his sentencing discretion. There was no error in his Honour's conclusion that the sentence he imposed was not limited by the maximum penalty for the "broadly analogous" offence in s 249B of the Crimes Act. Accordingly, the proximity of the sentence imposed to the maximum penalty under s 249B does not assist Mr Obeid on this ground.

467. Finally, the judge was correct to find that general deterrence, denunciation and recognition of the harm to the community were important considerations in the assessment of sentence. Making the offender accountable for his actions was also a relevant consideration amongst the "Purposes of sentencing" in s 3A of the Crimes (Sentencing Procedure) Act.

468. Mr Obeid has failed to establish that the sentence imposed upon him is unreasonable or unjust: House v The King at 505.

Orders

469. Leave to appeal should be granted but the appeal against sentence should be dismissed.

470. HAMILL J: I agree with Bathurst CJ that the appeal against conviction must be dismissed. I agree with the Chief Justice’s reasons for that decision.

471. Subject to one reservation, I also agree with the complementary or elaborative reasons of Leeming JA in respect of grounds 2 and 3. My only reservation arises out of paragraphs [323] and [324] of his Honour’s judgment. I do not think it is necessary to consider the appropriateness (or otherwise) of a legal question being agitated on an appeal against conviction when the same question has been considered in an earlier interlocutory appeal under s 5F Criminal Appeal Act 1912 (NSW). A party who has been unsuccessful in an interlocutory appeal may feel obliged to raise the same matter on their conviction appeal to preserve the point even where, as here, special leave has been refused by the High Court to appeal against the interlocutory judgment. That seems to be the situation in the present case. In respect of Ground 3, the applicant merely made a formal submission that Obeid v R (supra) was wrongly decided. In respect of Ground 2, a somewhat different tack was taken – the question of jurisdiction was not pressed but, rather, it was submitted that Beech-Jones J ought to have declined to exercise the jurisdiction (albeit that he was not asked to do so). Further, in some cases, the significance of the legal question or its impact on the proceedings may only become clear in the course of the trial. I am not convinced that the same considerations lying behind the comments of Mason CJ in Rogers v The Queen (supra) apply in a convicted person’s appeal. In any event, I agree with Leeming JA that, in the absence of submissions by the respondent or the Attorney General (as amicus), the matter need not be considered further.

472. I also agree with the general comments of Leeming JA in respect of grounds 1, 4 and 6.

473. In relation to the application for leave to appeal against sentence, I agree with the orders proposed by R A Hulme J and with his Honour’s reasons. I would only add that the sentence imposed was a heavy one in all of the circumstances and, in particular, in light of Mr Obeid’s age, ill-health, prior good character and public service along with the public opprobrium that he has suffered. However, as R A Hulme J has explained in his judgment, none of the grounds of appeal can be sustained and the sentence is not affected with patent legal error. As for the latent error asserted by ground 13, I agree with R A Hulme J that the sentence imposed is not “plainly unjust” or “manifestly wrong”: see, for example, Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ).

474. N ADAMS J: I have had the considerable advantage of reading the draft judgment of the Chief Justice and respectfully agree with the orders proposed for the reasons provided by his Honour. I have also had the opportunity to read the additional reasons of Leeming JA in draft and I agree with them as well.

475. With respect to the application for leave to appeal against sentence I agree that leave to appeal should be granted but that the appeal be dismissed for the reasons provided by R A Hulme J. I am not satisfied that any of the specific errors relied upon in grounds 8 to 12 have been established. As for ground 13, although the sentence imposed is a stern one, I am not satisfied that there has been a failure on the part of the learned trial judge properly to exercise his sentencing discretion such that a “substantial wrong” has occurred: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505.

**********

Amendments

13 September 2017 - Headnote: numbering change

13 September 2017 - Typographical errors

14 September 2017 - [363] add "commit" after "conspiring to"

[430] change "21A(2)(g) to "21A(3)(g)'

19 September 2017 - Front page - representation

26 July 2018 - [300] amend to read "Herron CJ at 393-396".

[307] remove "the" before Commonwealth in the quote.

Decision last updated: 26 July 2018