Obeid v R

Case [2015] NSWCCA 309


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Obeid v R [2015] NSWCCA 309
Hearing dates:20, 24 November 2015
Decision date: 08 December 2015
Before: Bathurst CJ; Beazley P; Leeming JA
Decision:

1. Grant leave to appeal.

 

2. Appeal dismissed.

 

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Orders Act 2010 (NSW), it being necessary to prevent prejudice to the proper administration of justice, this judgment not be published pending the determination of the trial.

 

4. Remit for the consideration by the trial judge whether an order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) should be made in relation to this judgment and the judgments at first instance R v Obeid (No 2) [2015] NSWSC 1380 and R v Obeid (No 3) [2015] NSWSC 1441.

[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
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
Commonwealth Constitution, ss 7, 9, 10, 15, 25, 29, 30, 31, 41, 49, 51, 95, 106, 107, 108, 111, 123, 124
Constitution Act 1902 (NSW), ss 12, 13A, 14A, 47, 47A
Constitution Act 1975 (Vic), s 19
Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), s 17
Criminal Procedure Act 2009 (Vic), s 302
Judiciary Act 1903 (Cth), ss 78A, 78B
Law Reform (Vicarious Liability) Act 1983 (NSW)
Parliamentary Privileges Act 1987 (Cth), s 16
Supreme Court Act 1970 (NSW), s 23
Cases Cited: 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488
Arena v Nader (1997) 42 NSWLR 427
Armstrong v Budd (1969) 71 SR (NSW) 386
Ashby v White (1703) 2 Ld Raym 938; 92 ER 126
Attorney General’s Reference (No 3 of 2003)…

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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.

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