R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 16)

[2020] NSWSC 1950

Supreme Court

New South Wales

Medium Neutral Citation:	R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 16) [2020] NSWSC 1950
Decision date:	25 November 2020
Jurisdiction:	Common Law
Before:	Fullerton J
Decision:	See [8].
Catchwords:	EVIDENCE — Hearsay — Exceptions — Non-hearsay purpose
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 15) [2020] NSWSC 1949.
Category:	Procedural rulings
Parties:	The Crown Ian Michael Macdonald (Accused) Edward Moses Obeid (Accused) Moses Edward Obeid (Accused)
Representation:	Counsel: S Callan SC / R Rodger (Crown) J Martin (Accused Macdonald) Ms Francis (Accused Edward Obeid) MJ Neil QC / M Kalyk (Accused Moses Obeid) Solicitors: Solicitor for Public Prosecutions (Crown) M Bowe (Accused Edward Obeid) Murphy’s Lawyers Inc (Accused Moses Obeid)
File Number(s):	2015/212910; 2015/214251; 2015/212851

Judgment

1. HER HONOUR: On 20 November 2020, I published a judgment to the parties which concerned both the admissibility of statements made by Edward Obeid and Moses Obeid in the course of being interviewed by a number of journalists associated with various news organisations between October 2009 and December 2012 and the admissibility of statements made by each of them in the course of the execution of a search warrant over premises occupied by Locaway Pty Ltd in November 2011 as capable of constituting either implied admissions of guilt or admissions against interest pursuant to s 81 of the Evidence Act 1995 (NSW). [1]

   1. R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 15) [2020] NSWSC 1949.

2. Those rulings were reflected in a Schedule attached to that judgment.

3. This judgment is to be read as an addendum to that judgment.

4. This judgment concerns a provisional ruling I made in respect of the admissibility of a previous representation said to have been made by Edward Obeid in the course of being interviewed by Ms Anne Davies on 14 May 2010 concerning his knowledge of the entity Voope Pty Ltd. [2]

   2. Line entry 7 of Attachment 1.

5. On 20 November 2020, the Crown served, by way of disclosure, a letter from Ms Graylin, solicitor, which set out verbatim a question the Crown asked Ms Davies in conference directed to the circumstances in which the company Voope Pty Ltd was raised with Edward Obeid in the course of Ms Davies conducting a telephone interview of Edward Obeid in May 2010. [3]

   3. Exhibit AO.

6. I set out that question and Ms Davies answer to it in full:

Q. Do you recall who raised Voope?

Ms Davies’ Answer: I asked about Voope. I think I asked whether Voope was involved in trying to get a mining licence for Mt Penny, whether Voope was involved in the financing of the Monaro bid. I asked him whether Voope was one of the family companies because we were aware there were connections between Voope Director, Skehan, and the Obeids.

7. It is clear that Ms Davies asked about Voope Pty Ltd in three distinct connections: first, as to whether it was involved in trying to get a mining licence for Mount Penny; secondly whether it was involved in the financing of Monaro Mining’s tender for an exploration licence at Mount Penny; and thirdly whether it was one of the Obeid family companies.

8. Despite a range of hearsay assertions inherent in Ms Davies’ question, the question is admissible under s 60 of the Evidence Act for a non-hearsay purpose, namely to put into context what I am satisfied is an answer given by Edward Obeid which has the capacity to be an admission adverse to his interests in the outcome of the trial. Although it is critical that his answer that he does not “get involved in the business” of his sons is to be assessed for its capacity to be adverse in the relevant sense at the time that it was made (namely in May 2010), I am satisfied that the compendious question asked of him at that time is capable of being understood as directed to his knowledge of a state of affairs obtained during the currency of the conspiracy. It is in that sense that I am satisfied that his claim that he does not “get involved in the business” of his sons is capable of being understood as an implied recognition by him that Voope Pty Ltd was in fact utilised by “the boys” for “business purposes”, namely in connection with the exploitation of the potential for coal mining associated with rural holdings owned by the Obeid family or their associates.

**********

Endnotes

Decision last updated: 19 July 2021