3. Subject to order 4 below, order that, pursuant to s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW), it being necessary to prevent prejudice to the proper administration of justice, this judgment not be published pending the determination of the trial.
[Note: Order 3 was discharged on 7 April 2016; see R v Obeid (No 8) [2016] NSWSC 388.]
Catchwords:
COURTS – jurisdiction – common law offence of misconduct in public office – former member of Legislative Council charged – application to quash indictment – whether Supreme Court of New South Wales has jurisdiction – whether effect of parliamentary privilege was to deny jurisdiction – Constitution Act 1902 (NSW) ss 13A, 14A – whether jurisdiction should be determined before other submissions
CRIMINAL LAW – common law offence of misconduct in public office – elements of offence – whether extends to members of Parliament – whether extends to conduct connected to member's public office – relevance of failure to bring prosecutions – R v Quach [2010] VSCA 106; 201 A Crim R 552 considered
PARLIAMENT – powers and privileges – Legislative Council of New South Wales – whether powers and privileges coextensive with House of Commons – Bill of Rights 1689, art 9 – Constitution Act 1902 (NSW) ss 13A, 14A
[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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Details
AGLC
Obeid v The Queen [2015] NSWCCA 309
Case
[2015] NSWCCA 309
Decision Date
CaseChat Overview and Summary
In the case of Obeid v R, a former member of the Legislative Council of New South Wales was charged with the common law offence of misconduct in public office. The defendant applied to quash the indictment on the grounds that the Supreme Court of New South Wales lacked jurisdiction over the matter, primarily due to the defendant's parliamentary privilege. The court was tasked with determining whether the Supreme Court's jurisdiction was affected by the defendant's status as a former member of Parliament and whether the court should decide this jurisdictional issue before addressing other submissions.
The central legal issues revolved around the scope of the Supreme Court's jurisdiction, particularly whether it extended to a former member of the Legislative Council charged with misconduct in public office. Additionally, the court had to ascertain whether the common law offence of misconduct in public office applied to members of Parliament and whether it encompassed conduct linked to their public office. The relevance of the failure to bring prosecutions in previous cases was also examined, with the Victorian Court of Appeal's decision in R v Quach being considered.
The court ruled that the Supreme Court of New South Wales did indeed have jurisdiction over the matter. It determined that the powers and privileges of the Legislative Council were not coextensive with those of the House of Commons, and therefore, did not provide immunity from criminal prosecution. The court further clarified that the common law offence of misconduct in public office did apply to members of Parliament and included conduct related to their public office. The court also held that the issue of jurisdiction should be decided before other submissions, ensuring that the court's authority was established at the outset of the proceedings.
As a result of the court's decision, the application to quash the indictment was dismissed, allowing the case to proceed to trial. The defendant's argument regarding parliamentary privilege was rejected, and the court affirmed its jurisdiction over the matter, setting a precedent for future cases involving the conduct of members of Parliament.