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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Obeid v The Queen [2017] NSWCCA 221
Case
[2017] NSWCCA 221
Decision Date
CaseChat Overview and Summary
In the case of Obeid v R, the applicant, Mr Samier Obeid, appealed against his conviction and sentence for official misconduct and other related offences. The case was heard in the High Court of Australia. The dispute centred around whether Mr Obeid had breached a legal duty and whether certain issues were outside the jurisdiction of the Supreme Court. The legal issues included whether the offence of official misconduct applies to members of Parliament and if the trial judge had correctly directed the jury on the elements of "seriousness" and "wilfulness." Additionally, the court considered whether there was a miscarriage of justice due to the applicant's legal team failing to present certain evidence.
The High Court examined whether the duty breached by Mr Obeid was valid and whether the issues at trial should have been exclusively within the purview of the NSW Parliament. It was argued that the offence of official misconduct does not encompass actions taken by members of Parliament in their official capacity. The court also assessed whether the trial judge had properly guided the jury on the "seriousness" and "wilfulness" criteria and whether the verdict was unreasonable given the evidence. The court found that the trial judge had not erred in these respects. Furthermore, the court found that there was no miscarriage of justice due to the applicant’s lawyers not presenting specific evidence.
Regarding the sentencing, the court addressed whether the trial judge had correctly identified the analogous offences and whether the sentence was appropriate. The High Court determined that the trial judge had not erred in concluding that the relevant offences were those found in Part 4A of the Crimes Act. The court also found that the trial judge did not err in considering the jury's satisfaction that the conduct merited criminal punishment and in denying procedural fairness by not accepting a particular mitigating factor. The court held that the sentence imposed was not manifestly excessive.
Ultimately, the High Court dismissed the appeal against conviction and sentence. The court found that the trial judge had not made any significant errors in the trial or sentencing process, and the sentence was deemed appropriate.