Obeid v The Queen

[2018] HCATrans 54

[2018] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S249 of 2017

B e t w e e n -

EDWARD MOSES OBEID

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 MARCH 2018, AT 9.30 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR D.P. HUME, for the applicant (instructed by Hanna Legal).

MR P.W. NEIL, SC:   May it please the Court, I appear with my learned friends, MR R.C.A. HIGGINS, SC, and MR B. NARULA, for the respondent (instructed by Solicitor for Public Prosecutions (NSW)).

BELL J:   Yes, Mr Walker.

MR WALKER:   If it please the Court.  Your Honours, the proposed grounds, and the reasons why we urge that they are deserving of special leave, are related to each other, of course.  Your Honours have seen that we raise the Criminal Appeal Act point – namely, whether or not it is legitimate without mentioning it, in effect, to apply a proviso approach in the manner I am about to show.

That, of course, turns on the question of whether there has been identified an error of law producing, at least, a miscarriage.  That, in turn, has as its substantive question – whether the formulation of the requisite duty, a breach of which is at the heart of the alleged misconduct, wilful misconduct in public office, was correctly articulated.  And that raises matters of very considerable constitutional import, particularly concerning the relation of the criminal courts to the chambers of Parliament and, also, indirectly to the electors.

Could I explain as follows?  Your Honours have seen the indictment at page 5 of the application book and how, during the course of the trial – culminating in stages in the summing‑up – questions of the duty and the legitimate or illegitimate interests in the mind of the accused arose.  I want to draw to attention, first of all, a passage that might appear to be against us in the summing‑up at page 52 of the application book – really, the bottom of page 51, I suppose – where the Crown case is being put, I must say, in a way that my friend sought to correct, or differ from.

However, the Crown case was there put by his Honour at trial in a way that produced what, in the Court of Criminal Appeal, turned out to be something characterised as being excessively favourable to the accused producing a perception still relevant today that there is nothing we should be complaining about if that was error.  And, I want to address that at the outset.

So, at the top of page 52, you will see that the verbal formulation advanced by his Honour – even if not wholeheartedly accepted by the Crown – included the proposition and that he, the accused:

did not act in any way under the belief that speaking to Mr Dunn was in the public interest ‑

et cetera.  That is, appropriately, paraphrased by the Chief Justice in the Court of Criminal Appeal as producing a test or requirement for the prosecution to meet of attributing sole – my word – unalloyed purpose.

EDELMAN J:   This is paragraph 90?

MR WALKER:   Yes, exactly.  If I could go immediately to paragraphs – it starts, really, in 90 and it concludes in 96.  That is one passage.  And, our section 6 Criminal Appeal Act point, of course, comes to a point when one sees the combination of paragraphs 94, 95 and 96.  At 96 – which we have drawn to attention in our written submissions here – our written application here – actually goes so far as to say that it was “unnecessary to consider whether” the formulation of the offence was correct – in particular, the formulation of the duty, the breach of which is at the foundation of the offence, was necessary.  And, that was because of this notion that it could only have assisted the accused by raising the bar for the Crown.

Your Honours see the other possibility raised, but not even considered, and certainly not decided, referred to in paragraph 96.  And, it is a possibility which looks to that which – as a matter of ordinary experience of the world and of politics in particular – would appear to be the paradigm, that is, nothing is sole or unalloyed, everything is mixed.

EDELMAN J:   But, which is less, would have been the less favourable direction for your client.

MR WALKER:   Quite.  That is why I am addressing it immediately because that is, obviously, deployed against us in terms of where is our complaint in relation to the administration of justice, if we were convicted at trial with, as it were, a more difficult task confronting the Crown than should have been the case.  That ceases to be available as an answer to our grievance when one goes, first of all, to page 72 because during the summing‑up, his Honour, understanding as he did the Crown case, needed to explain what the duty was for a number of purposes.  Breach of the duty was necessary for the misconduct.  Some apprehension, certainly by the court and the jury, and also, to a degree, by the accused, of the duty is necessary for the wilful component of the offence.

What one finds at line 19 and following on page 72 is the reverse – that is, an unalloyed or sole notion being used in the opposite tendency – that is, unfavourably to us – namely, that when you act you must not have any other interest than what is called – and we think this is a unique formulation, certainly in the criminal law – what you believe to be in the public interest and the interests of the electorate.  It is never explained.  Perhaps, it could not be explained whether they are overlapping or distinct notions, the public interest and the interests of the electorate.

KEANE J:   Why is it not just the other side of the coin?

MR WALKER:   It is, your Honour.

KEANE J:   Here, there is being expressed, if you like, in prescriptive terms, the obligation in question.  But, that is just, is it not, the other side of the coin from the proscriptive which is “thou shalt not act to feather thine own nest”?

MR WALKER:   It is not just the other side of the coin.  It is the other side of the coin.  It is not just the other side of the coin in the sense that it does away with a grievance by us.  It may be accepted that it might not be a case calling for special leave if conviction was secured in a trial rendered more difficult by directions for the Crown than it need have been.  But, that may be accepted as an abstract proposition.

BELL J:   It is not necessarily abstract, is it?  Is it not, simply, an application of very established principles that the trial judge directs in accordance with the way the case has been put and the issues that are live at the trial.

MR WALKER:   Yes.

BELL J:   In the way the trial was conducted, his Honour’s directions in the estimate of the Court of Criminal Appeal suffice as a correct statement of the law, notwithstanding that it may be an argument might be made in another case with different issues that might express the duty in a more circumscribed way.

MR WALKER:   And, Macdonald has, obviously, rendered that possibility concrete which is one of the reasons why these are matters which, in our submission, go beyond simply the interests of this case – of my client in this case.  That is, why it renders ‑ ‑ ‑

BELL J:   On a view, this might not be an occasion to reconcile any difference between the formulation of the duty and the duty here unless one is to put to one side Alford v Magee and all that have followed it.

MR WALKER:   Yes.  That is a view.  What I am trying to persuade your Honours of is this – that this was not simply a direction which posed, arguably, too high a hurdle for the Crown to jump.

EDELMAN J:   It was too high a hurdle for the Crown to jump on duty.  But, you say, that it then creates too low a hurdle on breach of duty.

MR WALKER:   Yes.  That is the whole point.  The scope or content of the duty – explained at 72 – was powerfully adverse to us.

EDELMAN J:   What do you say the test should have been?  Or the direction should have been?

MR WALKER:   My answer, necessarily, has to go to what I will call ground 3.  That is, this is not a matter where, upon reflecting in order to answer your Honour’s question, you can avoid the proposition that such duty as there is, is for political, not criminal sanction.  I cannot sever that from a proper answer to your Honour.  But, on any view, the mixture of purpose is one which is unavoidable – as it is in administrative law ‑ and then questions of degree arise and then, of course, difficulties for the safety of the verdict in this case emerge, particularly in relation to wilfulness.  That is, whatever wilfulness involves ‑ with the possible route of recklessness – whatever it involves, you need to have something resembling the duty in law – enforceable at law – in order for the jury to decide whether or not the wilfulness has been proved beyond reasonable doubt.

BELL J:   Do you need ‑ ‑ ‑

MR WALKER:   And, there was no evidence in this case directed to the duty to be seen by the combination of 52 and 72.  I am sorry, your Honour.

BELL J:   Coming back to your answer – or part of it – to Justice Edelman’s question, is it fair to say that you need to establish that there is not a legal duty on a parliamentarian not to act so as to promote his or her own pecuniary interests?

MR WALKER:   In a sense, yes, but can I explain?  The Crown has never said that there is the slightest difficulty in the state of affairs, well understood by the chambers, both in their own internal governance and in their joining in legislating, with respect to disclosure of interests by members.  In other words, one can have interests.  That is not nefarious, disclosure is the cure.  That is the first thing.

Second, it is clear that the enactment of general legislation will, unavoidably, affect the financial position of everybody who is caught, either by way of proposed benefit or burden.  And, the adjustment of taxation is enough to demonstrate that.  In what I will call the “straightforward old days”, members would vote on their remuneration.  They still vote on the mechanism by which it is fixed.

So, one can dismiss entirely some entirely Robespierrian idea that there can be no tincture of understood self‑interest.  I do not mean unconscious self‑interest – the accidental happy outcome of having your tax halved – I mean, a highly self‑conscious understanding that the members, along with others, will benefit.

KEANE J:   To say that is simply to say what is said in Brown’s Case, that the Members of Parliament can benefit to the extent that the law says they can and they make the law.

MR WALKER:   Yes.  But, an administrative decision can be made in such a way as to have effects on members or their intimates without, thereby, being invalid as a matter of administrative law.  It calls for a case‑by‑case determination, usually of predominant motive.

KEANE J:   It is difficult though, is it not, to postulate a resolution of the Legislative Council that members should feel free, in the exercise of their functions, to look after their own interests – or to pursue their own interests.

MR WALKER:   And, I have no concern, forensically, to advance any such proposition.  Our proposition is quite different – namely, that those are matters of vital public significance best not sanctioned by the criminal law – best sanctioned politically.  And, certainly not by what can be seen to be a kind of combination – not articulated in the Court of Criminal Appeal, left open – a kind of combination of fiduciary analysis and looking for the, we would submit, psychological unicorn, that is, action for one sole motive.  It is for those reasons that ‑ ‑ ‑

EDELMAN J:   Do you accept that – or submit – that your ground 3 is not independent of ground 1 in the sense that if you failed on ground 3, you would have to fail on ground 1?

MR WALKER:   No, I do not because – not least because of the wilfulness, ground 2.  So, if the duty has been wrongly, and to a degree, confusingly put ‑ and that is why 52 and 72 ride together, they pull in opposite directions ‑ then, obviously, the wilfulness determination will not be safe.  Of course, if we lost on ground 3, then it would cast an adverse light on a deal of ground 1, but it does not remove it from being a critical question, going beyond the facts of this case, furthermore.

EDELMAN J:   But, there would then arise the question of what it is, what the duty is in ground 1, read with ground 2 ‑ ‑ ‑

MR WALKER:   Absolutely.

EDELMAN J:   ‑ ‑ ‑ that ought to exist.

MR WALKER:   Yes, that does exist.

EDELMAN J:  I am not sure – yes, or that does exist. 

MR WALKER:   Yes.

EDELMAN J:   I am not sure I understand what your submission is on that.

MR WALKER:   Your Honour does appreciate – I know I am repeating myself – but ground 3 commits us to saying, it is not a duty enforceable as a matter of criminal law.  Your Honour is then requiring me to respond to this position.  If I am wrong in that, do I have a position with respect to ground 1 in relation to a formulation which should have been expressed and I start ‑ ‑ ‑

EDELMAN J:   Or a formulation that would apply to persons who are not in a position where – even if you were correct about ground 3 – effectively, having an immunity from the application of such an offence.

MR WALKER:   We are talking about Members of Parliament as Members of Parliament. 

EDELMAN J:   Yes, but it must be the same duty, if it arises, that would apply to other persons holding public office, would it not?

MR WALKER:   No, no.  The whole point – even if we were to lose ground 3 – the whole point is that the duty of somebody who is elected and has representative functions in a parliamentary system which recognises – and some might say is now shaped by the party system – is one which will be likely, fundamentally, certainly significantly different from a Minister qua Minister, as opposed to a Member and, certainly senior members of the Public Service or other holders of statutory office.

It is because of the electoral and representative aspect that, of course – even if we were to lose ground 3 – we say, the scope or content of the duty, for the purposes of ground 1, renders page 72 wrong – that you cannot have mixed motive is, in our submission, wrong.

BELL J:   Mr Walker, was any point taken respecting the correctness of the directions given at page 72 by counsel for your client?

MR WALKER:   Rule 4 leave was granted in the Court of Criminal Appeal for the raising of these points which, of course, start with the greater – namely, what our ground 3 and included the contest about the scope or content as I have put it.

BELL J:   I sense that Justice Edelman has endeavoured to tie you down on this but I will try again.  It is conventional, where there is a complaint as to the correctness of a direction given to a jury, to enquire what the terms of the direction sought might be.  Now, I understand you have a contention that there simply was no duty ‑ ‑ ‑

MR WALKER:   Yes.

BELL J:   ‑ ‑ ‑ because there is no legal duty on a parliamentarian not to act so as to promote his or her own interests.

MR WALKER:   Would your Honour forgive me if I adapt from Boston ‑ ‑ ‑

BELL J:   Yes.

MR WALKER:   ‑ ‑ ‑ the response that, of course, there is a duty – unthinkable, otherwise.  Of course there is a duty but it is not one that is sanctioned by criminal courts.

BELL J:   That is the subject of your later ground.

MR WALKER:   Yes, it is, yes.

BELL J:   But, dealing just, for present purposes, upon an acceptance that the duty is one cognisable by the criminal law, what is the direction that you say ought have been given upon that acceptance?

MR WALKER:   First of all, no direction should have been given prohibiting reference to, other than what is called – compendiously, probably – the public interest and the interests of the electorate, page 72.  So, that means there should have been admission of the propriety, or acceptability, of mixed motive.  And, then pressed to devise a direction for an offence that we say does not exist, I respond by saying, it will most likely be a predominant purpose.  And, if the predominant purpose is self‑interested, then this offence that we resist as to its existence, for constitutional reasons, might be made out.

BELL J:   If it is right to take from the directions that were given, that the jury was required to find that the sole object of the representation was the promotion of personal interest, it is difficult to see that that, in the context of the issues at this trial, did not subsume the direction for which you contend.

MR WALKER:   The problem with that is that that is not what they were left with.  They were left with that plus 72, plus description of the scope or content of the duty as expelling any possibility, that is, the converse or the other side of the coin.  So, it may be accepted that if it were simply Alford v Magee, we understand ‑ ‑ ‑

BELL J:   That is the matter I am taking up with you.

MR WALKER:   Yes.

BELL J:   At any point, was it put to the jury, on the accused’s behalf, that part of his intention may have been the promotion of his own interests, but ‑ ‑ ‑

MR WALKER:   Yes.  No, there was no concession as to self‑interest at all.  But, there was certainly put the converse, namely, he had in mind the public interest of seeking to avoid, alleviate or reverse unfairness to particular persons.  That necessarily involves questions of degree and mixture and that is the very reason why, in our submission, understanding of the duty as it is properly to be understood – and this is why page 72 is right at the heart of the matter, that is what they were told about the duty ‑ understanding that duty was critical for an understanding of recklessness with the mental element concerning an understanding, at least to some extent, of the duty and its nature and, of course ‑ ‑ ‑

BELL J:   What they were told about the duty was that it was necessary to act in the public interest and the interests of the electorate and not to use the position for the purpose of promoting their own pecuniary interests.

MR WALKER:   To act only in the public interest and the interests of the electorate as if that exhausts the motives that might properly be present.  So, that is the converse, or opposite, of the notion of a test which, were it to stand alone, would have simply been excessively favourable to us, namely, that sole purpose must be nefarious.  It is for those reasons, in our submission, that this is a case which is left as one – we are following the orthodox route of observing the verdict and the basis of the material and directions, which preceded the verdict, leaves open the possibility that there was an understanding that there could not be anything other than public interest or interests of the electorate.  That, we submit, has never been hitherto the law.  That is, in Boston, the single‑minded pursuit that is rhetorically enlisted to support this formulation of the duty is, as Justices Isaacs and Rich pointed out, a matter for political sanction, a matter that the Crown, as it were, diplomatically omit when citing from Boston.

BELL J:   If you succeed on that aspect, that is the end of debate, as the Court of Criminal Appeal recognised.  At the moment, we are dealing with ground 1.

MR WALKER:   Yes, but that is why I opened as I did, your Honour.

BELL J:   Yes.

MR WALKER:   They really cannot be seen atomistically.  They do inform each other.  Even if we were to lose in what I might call the grandest extent of ground 3’s ambition, the caution that ought to be felt in articulating a duty to which legal teeth are going to be added through the criminal law by reason of the political and constitutional matters that do inform our ground 3 argument will, necessarily, be in play.

So, we could lose ground 3 for what I might call its grandest extent, but it have the effect that there has been such a variance between what the law does impose by way of a duty concerning mixture of motives and what was left with the jury – particularly at page 72 – as to produce an impossibility of being satisfied if one ever did properly get to a proviso in relation, certainly, as to the wilfulness.  All of these things are central to criminal guilt.  And, they have been, literally, left undetermined in the Court of Criminal Appeal.  There is no proviso reasoning, although, for the reasons I have put, that has been in effect the outcome.

BELL J:   The Court of Criminal Appeal reasoned there was no legal flaw in the directions given in light of the conduct of the trial and the issues that fell to the jury to determine.  So, no question of the proviso arises. 

MR WALKER:   That is exactly how – that is how it is reasoned that it does not arise.  In our submission, when the Chief Justice says in paragraph 95 at application book 190:

In these circumstances it seems to me there was no misdirection as to the nature of the breach of duty necessary –

his Honour is, as we know, from paragraph 96, not intending and not holding that the formulation was correct, simply that it was, arguably, excessive – excessive, that is, against adversely to the prosecution.

That is a very different thing and that does not help in addressing the question of wilfulness and the adequacy of the material to make out wilfulness beyond reasonable doubt at all.  It does not embrace what you have to embrace with wilfulness, namely, something about the subject matter as to which the wilful misconduct is being committed.  That subject matter is the duty.  It is the scope or content of that duty which is, therefore,

at the heart of the conviction about which we complain.  Your Honours, the red light has been on for a while.

BELL J:   Yes.  Thank you, Mr Neil.

MR NEIL:   May it please your Honours.  It is, in our respectful submission, critical to have regard to what happened at the trial, because it really governs whether there is any substance at all in our very learned friend’s erudite submissions. 

Our fundamental proposition, your Honours, is this:  having regard to the charge pleaded in the indictment, the conduct of the trial by the Crown and the defence, and the trial judge’s direction that the Crown had to prove beyond reasonable doubt that the applicant acted with the sole purpose or motivation of benefiting his own interests, the question whether the offence can be committed with mixed purposes or motives – that is, in aid of his private interests on the one hand but also to benefit the public or the electorate on the other – cannot be resolved by this Court hearing an appeal.  The question simply does not arise in this matter.  In effect, in our respectful submission, the Court is being invited to give an advisory opinion on the metes and bounds of the duty of a parliamentarian at large. 

The respondent submits that the only issue is whether the trial judge’s direction on the duty, in the circumstances of his conduct, as found by the jury, was erroneous.  That question cannot be answered by reference to theoretical postulations outside of the trial.

The applicant does not say, and has never said, what direction should have been given.  It is one thing to say, “There is no duty, therefore, no direction can be formulated,” but at the trial the applicant, through his very experienced senior counsel, Mr Braddon Hughes, was on notice, well ahead of time – that is, before the learned trial judge charged the jury – of what the directions were going to be.

EDELMAN J:   What the applicant says now is that the duty ought to have been one of predominant purpose, which is one that was less favourable to the applicant but more favourable to the applicant when one turns to directions on breach, such as that at page 72.

MR NEIL:   Your Honour Justice Edelman is right, but we have heard this for the first time now.  It has never been raised before.  Can I illustrate that, your Honour, in a couple of passages in the application book?  Could I take your Honours, please, to application book 172 ‑ these are in the reasons of Chief Justice Bathurst, at the bottom of that page.  I do not overlook what his Honour says at paragraph 38, under the heading “Mr Obeid’s submissions”, but the last sentence:

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.

This is in the Court of Criminal Appeal, it not having been done at the trial.  More significantly, paragraph 41, at line 40:

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.

Paragraph 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.

Your Honour sees the next sentence, but just over the page, to save time, at application book 174, paragraph 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 –

That may not be a complete answer to my friend’s point or the matter your Honour Justice Edelman put to me, but one has to have some reasonable regard to the way these proceedings have been conducted up to now. 

When one is looking to say that there has been a miscarriage of justice, parties in criminal proceedings, like other proceedings but particularly in criminal proceedings, are bound by the way in which the trial is conducted.  If that principle is set aside because of an interesting point – no doubt there are a number here – then that would be an attack, in our respectful submission, on a fundamental principle.  Our submission is that that should not occur.

In terms of what happened at the trial, can I invite your Honours’ attention very briefly to application book 189, again in the reasons of Chief Justice Bathurst, at paragraph 88.  Learned senior counsel made clear to the jury in the first three paragraphs, quoted in paragraph 88, what matters were not in issue.  Then, in the penultimate paragraph, he said:

I make this submission because at the time he said what he said the accused was not intending to achieve any favourable outcome solely for the Circular Quay Restaurants.

He goes on to elaborate.  The Chief Justice said at paragraph 89:

The defence thus put in issue that the jury could not be satisfied that the sole purpose of Mr Obeid in making the representations to Mr Dunn was to advance his pecuniary interests.  Senior counsel for Mr Obeid did not put in issue that whilst Mr Obeid may have intended to advance his interests by making the representations, that was not the dominant or motivating purpose.

We here for the first time are confronted with a very substantially different proposition.  There was every opportunity for this to be raised at the trial, and certainly before the Court of Criminal Appeal.  Bearing in mind, your Honours, that a very similar, if not identical, issue had been raised on the section 5F appeal in 2015, where their Honours had the terms in draft of the direction that the learned trial judge Justice Beech‑Jones said in Obeid (No 2) that, subject to final submissions, he would be giving to the jury.

There is a subsequent remark in our learned friend’s written reply that things are different now because we look at it according to the way the trial was actually conducted, not the way it was in 2015, in anticipation.  Your Honours, in 2015 there was a very large amended case statement before the Court of Criminal Appeal.  It was not changed.  The indictment was before the Court of Criminal Appeal.  It was not changed.  The trial came on a lengthy period later.  Nothing was changed, but one matter only.

As the Chief Justice in the Court of Criminal Appeal records, when the Crown opened the case and when the Crown closed the case, contrary to what had been said in the particulars, that Mr Obeid was motivated partly by his own interests and partly by the interests of the public, the trial was opened and closed and presented solely on the footing from the Crown that he acted with the sole purpose of advancing his own interests.  That led to a short interchange at one point when, perhaps at the heel of the hunt, I sought to preserve a position that no doubt I was not entitled to preserve, and his Honour very quickly rejected that.

Your Honours, we cannot upend this matter at this juncture.  There has been no miscarriage of justice according to principles of law in the way the proceedings, both at the trial level and the appellate level, were conducted.  Merely because now – we put this in our written outline – it is said that there are some interesting questions that arise and in other circumstances it may be different – they point to the direction of Justice Adamson in Macdonald and Maitland on a totally different factual scenario.  Of course, that could not fall for consideration, were there special leave, in an appeal here.  That issue would not be before the Court.

Criminal proceedings of this kind, conducted with the seriousness with which they were on all sides, ought not to be upended, in our very respectful submission, merely because someone later comes in new – of course, we know the ability of our learned friends for the applicant – and raises what we submit with respect are points that are more theoretical than real, having regard to the facts of the case and the evidence of the case and the matters that were not in issue.

What appears to be the position is that we are now told – I am not saying this did not come up earlier – that a Member of Parliament is under no duty except to Parliament, leaving aside ordinary crimes of murder and the like; we all know they are different.  That cannot be so.  But, of course, your Honours recall that this conduct – there seemed to be no issue at all, not even now – was not conducted within the Houses of Parliament; it was conducted extraneously and has nothing to do with the actual workings of the Parliament.  The applicant has been out of Parliament for a lengthy period. 

There is no criminal sanction in New South Wales, unlike the other States, for even a sitting member of the Legislative Council or the Legislative Assembly.  There has been legislation in other States that addresses that question.  Further, as we point out in our written outline, this does not have sufficient general application throughout the Commonwealth because, basically, New South Wales, with the possible exception of Victoria, is the only part of the Commonwealth where the common law offence still exists.  In all other States and territories and in the Commonwealth itself it is a statutory offence. 

BELL J:   The creation of a statutory offence is expressed to abrogate the common law offence?

MR NEIL:   Our friend says the sections of the various State and territory legislations do not say that, but we would say by necessary implication when a State parliament or the Commonwealth passes a law that creates an offence for a holder of public office, including a Member of Parliament, who acts in ways that are covered by the conduct here, it is very difficult to see that there is room for the operation further of the common law offence.  The common law offence existed in all those places to bring in the statutory offences carries its own implication that they were not intended to be available after the statutory offences were enacted.

In relation to our friend’s ground 3, it is, we concede, linked with ground 1, but our submission is that ground 1, the duty ground, is the only matter of any potential significance that would warrant a grant of leave, if your Honours were so minded.  But our firm submission, for the reasons that I have outlined, is that this is not the vehicle for it.  There may be other cases where ‑ ‑ ‑

EDELMAN J:   Putting aside the submissions you make on the vehicle, what do you say about the direction at page 72?  Do you say that, if the appropriate test or duty were a test of predominant purpose, the direction at page 72 would not have been given, or do you say that it would have been given in any event?

MR NEIL:   Your Honour, we say with the utmost respect that it is academic.  One cannot know.  This is part of the problem of trying to reconstruct a trial at this level.  One cannot say, merely because there is an argument now available, that what happened at the trial was erroneous or led to a miscarriage of justice.  Your Honour will appreciate that we have had very little time to consider that particular proposition and I am not suggesting it does not require some thought. 

The answer we would give to your Honour Justice Edelman is that the way the trial was conducted and the evidence, there was no evidence whatever – and the Chief Justice was firm about this, as was Justice Beech‑Jones, and Justice Beech‑Jones and senior counsel for the defence agreed at the trial on this point – that if the jury accepted the evidence of the principal Crown witness on the point, Mr Dunn, there was scope on the facts for a finding that he acted partly in the public interest.  That is critical in terms of, ultimately, his Honour’s judgment as to what direction should be given, which is the one he gave.

KEANE J:   In addition, it might be said that that direction is that members of the Legislative Council must act only according to what they believe to be in the public interest.  It is not a question of whether, objectively, it might be thought to be in the public interest one way or the other; it is directed to the belief with which they act.  In a sense it is picking up the wilfulness element.

MR NEIL:   It is.

KEANE J:   That it is concerned with action where the individual actually believes that he is acting in the public interest, as opposed to actually believing that he is acting only in his own interest.

MR NEIL:   Your Honour Justice Keane, Justice Beech‑Jones was alive to that, as was senior counsel for the accused, and it is commented on by Chief Justice Bathurst and Justice Leeming that the issue was the belief of the applicant.  This went to element 4, which the defence, through senior

counsel, accepted was not something that could be made out because there was simply no evidence; that is, no evidence of the belief of the applicant. 

In terms of the directions, when one looks at the oral directions and the written directions – I can give your Honours the references – at the trial, the jury were directed specifically in terms of what had the Crown proved about the belief or state of mind of the applicant, not the objective position or what they thought of it.  So all of that went the way your Honour indicates, if I understand your Honour correctly, it should have gone.

If your Honours would excuse me a moment – I have covered most of the points I wanted to cover but for any questions – but if I could have just a moment to see if I have not overlooked something I should say.

BELL J:   Yes, Mr Neil.

MR NEIL:   One of our points is that this is a specific case.  It is not likely to be replicated in the factual circumstances.  But our friend does put a submission:  if the Crown is right then this will be binding on other intermediate courts and lower courts.  Well, it may or may not be because, of course, under the common law the ratio of a case – and of course an indictment, and this is a common law misdemeanour, was under the common law – the charge in the indictment strictly governs the identification of the elements.  It is on the elements where one has to focus. 

One distinction between this case and Macdonald and Maitland is that the terms of the indictments in those matters were very substantially different, and the elements – not all of them; some elements of misconduct in public evidence were common – but some elements differed or certainly differed in their application.  So this does not have wide import, in our respectful submission.  Those are our submissions, may it please your Honours.

BELL J:   Thank you, Mr Neil.  Yes, Mr Walker.

MR WALKER:   Your Honours, ground 3, of course, is an important matter upon which, were we to succeed, the whole of the case would hang. 

KEANE J:   That would be because the charge at page 5 is not an offence known to the law.

MR WALKER:   That is right.

KEANE J:   In the State of New South Wales.

MR WALKER:   I do not shrink from that, no.

BELL J:   And were you not to succeed on that, the passage in defence counsel’s address to the jury to which Mr Neil directed us rather takes the force out of the contention that any direction on page 72 occasioned prejudice.

MR WALKER:   We urge not at all.  There is the question of law.  It was, on the hypothesis, wrong.  That required going to a proviso.  You could not go to the proviso except with the duty properly understood; that is, understanding the evidence, applying it to the elements of the offence without the error at page 72.  That has never been done.  That, of course, is why we have raised our section 6 point ‑ ‑ ‑

KEANE J:   Mr Walker, if a member of a Legislative Assembly actually acted in the subjective belief that what he was doing was not in the interests of New South Wales or his constituents but in his own interests, surely that must amount to wilfulness that amounts to an offence or is an element of an offence.

MR WALKER:   What I wanted a chance to persuade an appellate bench of is that what your Honour has just put to me cannot be right because Members of Parliament ‑ ‑ ‑

KEANE J:   So what is good for General Motors is good for the country; what I believe is good for Circular Quay Restaurants is good for New South Wales?

MR WALKER:   The jump from General Motors to Circular Quay Restaurants would not be plausible, but the notion of the private benefit from political advancement is one which, in our submission, is at the very heart of the conduct of parliamentarians; that is, climbing the greasy pole. 

In our submission, what your Honour has put to me on the basis that surely that must be an offence is one which immediately must require the abstraction or extraction from it of what is observable in some circles admired behaviour.  It may be that there is a comfortable delusion by everybody who behaves thus that any advancement of them as an individual is a boon for the public.  But that would be, in our submission, pushing credulity.

KEANE J:   No, that is not it, is it?  It is not that.  It is where you actually believe that it is not.  It is possible that someone might have the belief that what is good for Circular Quay Restaurants is good for New South Wales, but if they do not actually have that belief, if they are acting without that belief, surely that is an offence.

MR WALKER:   Your Honour, I think the last thing I can say, and I am repeating myself, is that those are important issues to which there are not straightforward answers and none indicated in the authorities.  This is the opportunity for them to be determined by this Court, rather than left studiously undetermined, as it has been by the Court of Criminal Appeal.

BELL J:   The Court will adjourn shortly to consider the future conduct of the matter.

AT 10.22 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.23 AM:

BELL J:   In our opinion there are insufficient prospects that the appeal would succeed to warrant the grant of special leave.  Special leave is refused.

The Court will now adjourn to reconstitute.

AT 10.24 AM THE MATTER WAS CONCLUDED