R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) - [2021] NSWSC 858

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858
Hearing dates: 12 February – 6 April 2020; 31 August – 26 November 2020; 1 – 17 February 2021
Decision date: 19 July 2021
Jurisdiction: Common Law
Before: Fullerton J
Decision:
Verdict of guilty entered against each accused.

Catchwords:
CRIME — conspiracy to commit the common law offence of wilful misconduct in public office — elements of the offence — whether the indictment disclosed an offence known to law — joint trial of three co-accused —accused Macdonald former Minister for Mineral Resources in the Executive Government of the State of New South Wales — scope and content of duties and obligations of confidentiality and impartiality owed by a Minister in the Executive Government of the State of New South Wales — eight acts of wilful misconduct particularised as acts by accused Macdonald in furtherance of the conspiracy — overt acts of accused Edward Obeid and Moses Obeid as acts in furtherance of the conspiracy — circumstantial evidence case — Shepherd direction — consciousness of guilt lies — application of co-conspirators rule in s 87(1)(c) of the Evidence Act 1995 (NSW)

Legislation Cited:
Coal Mining Act 1973 (NSW)
Constitution Act 1902 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Freedom of Information Act 1989 (NSW) (repealed)
Freedom of Information Act 1982 (Cth)
Independent Commission Against Corruption Act 1988 (NSW)
Migration Act 1958 (Cth)
Mining Act 1973 (NSW)
Mining Act 1992 (NSW)

Cases Cited:
Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
Aston v R (1987) 26 A Crim R 128
Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109
Attorney-General (UK) v Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86
Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794
Banque Commerciale SA (EnLiqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Bennett v R (1998) 144 FLR 311
Blackstock v R [2013] NSWCCA 172
Browne v Dunn (1893) 6 R 67 (HL)
Coco v AN Clark (Engineers) Ltd [1969] RPC 41
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Elomar v R [2014] NSWCCA 303
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19
Faulkner v Upper Boddington Overseers (1857) 3 CB(NS) 412
Fennell v The Queen [2019] HCA 37
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Landini v State of NSW [2007] NSWSC 259
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32
Mulcahy v The Queen (1868) LR 3 HL 306
Nye v State of New South Wales (2002) 134 A Crim R 245; [2002] NSWSC 1268
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281; [2010] FCAFC 21
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
Pereira v DPP (1989) 82 ALR 217; [1988] HCA 57
Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7
Plus One International Pty Ltd v Ching (No 3) [2020] NSWSC 1598
Quaid v R (2011) 210 A Crim R 374; [2011] WASCA 141
R vAnderson [1986] AC 27
R v Barbouttis (1995) 37 NSWLR 256
R v Clout (1995) 41 NSWLR 312
R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
R v Dytham [1979] QB 722
R v Freeman (1985) 3 NSWLR 303
R v Ghosh [1982] EWCA Crim 2; [1982] QB 1053
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 1) [2019] NSWSC 322
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 2) [2019] NSWSC 775
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 3) [2019] NSWSC 898
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 5) [2019] NSWSC 1489
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 9) [2019] NSWSC 1785
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 12) [2020] NSWSC 1946
R v Macdonald; R v Edward Obeid: R v Moses Obeid (No 13) [2020] NSWSC 1947
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 14) [2020] NSWSC 1948
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 15) [2020] NSWSC 1949
R v Macraild (Court of Criminal Appeal (NSW), 18 December 1997, unrep)
R v McNamara (No 1) (1981) 56 CCC (2d) 193
R v Mills (1963) 47 Cr App R 49
R v Mok (1987) 27 A Crim R 438
R v O’Brien (1974) 59 Cr App R 222
R v Porter [1910] 1 KB 369
R v Quach (2010) 27 VR 310; [2010] VSCA 106
R v RK and LK (2008) 73 NSWLR 80; [2008] NSWCCA 338
R v Schipanski (1989) 17 NSWLR 618
R v Trudgeon (1988) 39 A Crim R 252
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Shum Kwok Sher v HKSAR [2002] 3 HKC 117; (2002) 5 HKCFAR 381
Standen v R (2015) 253 A Crim R 301; [2015] NSWCCA 211
The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39; [1980] HCA 44
The King v Boston (1923) 33 CLR 386; [1923] HCA 59
The Queen vApostilides (1984) 154 CLR 563; [1984] HCA 38
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v LK; The Queen v RK (2010) 241 CLR 177; [2010] HCA 17
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22
Trudgeon v R (1988) 39 A Crim R 252
Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317
Xu v Minister For Immigration and Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741

Category: Principal judgment
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)
A 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

table of contents

The law of conspiracy - paragraph 13
The conspiracy charged in this trial - paragraph 19
Controversies as to the elements of the conspiracy charged - paragraph 22
The submissions of the Crown - paragraph 30
The submissions of the accused - paragraph 44
The authorities - paragraph 47
Determination of the controversy as to the “final element” of the substantive offence of misconduct in public office in a conspiracy to commit that offence - paragraph 60
Is the conspiracy charged an offence known to the law? - paragraph 72
Is the failure to allege an “improper purpose” fatal to the indictment? - paragraph 75
Does the failure to specify acts of misconduct, or how they might be committed, render the indictment defective? - paragraph 87
Is the use of the conjunction “and/or” in the indictment fatal? - paragraph 112
Mr Neil’s additional challenges to the indictment: Does the Crown have to allege that Edward Obeid and Moses Obeid agreed to do anything to further the object of the agreement? - paragraph 120
Is the indictment defective because of the identity of the conspirators: the relevance of The King v Boston - paragraph 131
What is encompassed by the concept of acts (of misconduct) in connection with the granting of an EL at Mount Penny? - paragraph 139
The indictment is not defective: the elements of the offence charged as restated - paragraph 156
The timeframe of the conspiracy alleged - paragraph 160
The co-conspirators rule and the operation of s 87(1)(c) of the Evidence Act - paragraph 171
The Crown case as particularised - paragraph 175
The eight acts of misconduct, as particularised - paragraph 181
Proving the existence of the conspiracy by inference - paragraph 185
What is comprehended by Mr Macdonald’s duties of confidentiality and impartiality as Minister for Mineral Resources? - paragraph 188
How do the Ministerial duties of confidentiality and impartiality impact on proof of the Crown case? - paragraph 194
The Ministerial Code of Conduct - paragraph 211
The DPI Code of Conduct - paragraph 220
What is confidential information as a matter of fact and law? - paragraph 229
What constitutes the duty of confidentiality under the Ministerial Code of Conduct? - paragraph 233
The relevance, if any, of s 365 of the Mining Act - paragraph 247
The evidence of the DPI officers as to their understanding of their duty of confidentiality - paragraph 259
Mr Iemma and Mr Gibson’s evidence - paragraph 273
What will need to be proved to constitute a breach of Mr Macdonald’s duty of confidentiality? - paragraph 280
What constitutes the duty of impartiality under the Ministerial Code of Conduct? - paragraph 281
The Shepherd fact: Mr Macdonald’s knowledge of the Obeids’ ownership of Cherrydale Park - paragraph 292
The significance of the eight acts of misconduct to proof of the Crown case - paragraph 296
What does the Crown need to establish were Mr Macdonald’s acts of misconduct (as particularised) and to what standard of proof? - paragraph 305
The significance of the date by which the conspiracy was in existence - paragraph 311
Edward Obeid’s participation in the conspiracy (on the Crown case) - paragraph 335
Moses Obeid’s participation in the conspiracy (on the Crown case) - paragraph 338
The further directions by which I am bound in my deliberations to verdict - paragraph 339
The documentary evidence tendered in the trial, in summary - paragraph 360
Witnesses called in the Crown case - paragraph 371
Parliamentary witnesses - paragraph 372
Bylong properties witnesses - paragraph 375
DPI witnesses - paragraph 381
Ministerial staff - paragraph 384
Monaro Mining NL witnesses - paragraph 386
Officers of the Independent Commission Against Corruption (NSW) (ICAC) - paragraph 391
Expert witnesses - paragraph 395
Others - paragraph 397

The primary issues in dispute arising from the evidence at trial - paragraph 401
The significance of the pre-existing relationships between the accused to proof of the Crown case - paragraph 407
Other relevant relationships involving Edward Obeid and Moses Obeid as members of a family: trusts, directorships, family companies and beneficial interests - paragraph 410
Obeid Corporation Pty Ltd - paragraph 417
Locaway P/L - paragraph 418
The relationship between Mr Macdonald and Edward Obeid as Parliamentary colleagues - paragraph 422
Mr Macdonald and Edward Obeid: Factional allies - paragraph 434
Budgetary challenges facing the Labor government in 2007-2008 - paragraph 448
Mr Macdonald and Edward Obeid: Electricity privatisation - paragraph 460
Mr Macdonald and Edward Obeid: Personal relationship - paragraph 471
Mr Macdonald’s use of the Obeids’ Jindabyne apartment - paragraph 475
Edward Obeid and Moses Obeid - paragraph 478
The relationship between Mr Macdonald and Moses Obeid - paragraph 481
Other relationships: Mr Macdonald, Mr Fang and Moses Obeid - paragraph 487
Occasions where the accused are in each other’s physical presence - paragraph 501
The Telephone Summary - paragraph 510
Submissions of the Crown - paragraph 518
Submissions of the accused - paragraph 523
Diary entries
Crown Case - paragraph 532
Edward Obeid and Mr Macdonald’s Parliamentary diaries - paragraph 533
Parliamentary sitting days - paragraph 535
The probative value of the Telephone Summary and Parliamentary diaries - paragraph 537
What were the circumstances in which Cherrydale Park was acquired by the Obeid family in September 2007, when did the family learn of the encroachment of Authorisation 247 held by Anglo American P/L on the property and what impact did that knowledge have on their plans for the use of Cherrydale Park as a rural holding?
The acquisition of Cherrydale Park - paragraph 539
The location of Mount Penny adjacent to Cherrydale Park - paragraph 545
Edward Obeid negotiates for the purchase of Cherrydale Park - paragraph 555
Cherrydale Park is settled - paragraph 563
The significance of Authorisations 287 and 342 - paragraph 571
What the accused knew of the likely coal reserves generally in the area around Mount Penny, and what impact did that have on the Obeid family’s plans for the use of Cherrydale Park as a rural holding and “rural retreat”? - paragraph 578
Mr Macdonald’s knowledge of the ownership of Cherrydale Park as a fact indispensable to proof of the guilt of each of the accused - paragraph 591
Sources of evidence relied upon by the Crown to prove Mr Macdonald’s knowledge beyond reasonable doubt - paragraph 597
The submissions of the accused directed to proof of the Shepherd fact and its relationship with the “but for” test - paragraph 607
The question when Mr Macdonald learnt of the Obeids’ purchase of Cherrydale Park (if he did) - paragraph 613
What does the water licences issue reveal about Mr Macdonald’s knowledge of the ownership of Cherrydale Park? - paragraph 616
Mr Badenoch’s evidence concerning the water licences - paragraph 622
I am satisfied Mr Badenoch made the water licences enquiry at Mr Macdonald’s request - paragraph 642
What weight attached to the first and second acts of misconduct in proof of the Shepherd fact? - paragraph 645
The staff structures within the Minister’s office and the DPI - paragraph 654
The role of the Coal and Petroleum Group within the Minerals Division of the Department of Primary Industries - paragraph 665
Communication between the DPI and the coal mining industry - paragraph 668
What is coal? - paragraph 674
Coal mining methods and coal seams - paragraph 678
Coal resources in New South Wales - paragraph 683
Coal exploration activities - paragraph 685
The granting of an EL under the Mining Act - paragraph 687
The statutory scheme in the Mining Act for the grant of an EL - paragraph 692
The designation of New South Wales as a Mineral Allocation Area for coal - paragraph 696
Recommendations by the DPI to the Minister about releasing particular coal resources to tender - paragraph 700
The Guidelines for Allocation of Future Coal Exploration Areas (Coal Allocation Guidelines) - paragraph 703
Identifying coal resources for direct allocation and competitive tender - paragraph 715
A limited form of expression of interest - paragraph 722
The Evaluation Committee’s selection of a preferred mining company - paragraph 725
The granting of consent by the Minister for the preferred company to apply for the EL pursuant to the regime in s 13(4) of the Mining Act - paragraph 727
Application by the recommended company for the EL under s 13 of the Mining Act - paragraph 729
The grant of the EL by the Minister - paragraph 730
The policy imperatives for the release of new small to medium coal release areas in the Western Coalfield in 2008 - paragraph 734
The significance of Additional Financial Contributions - paragraph 740
The DPI’s knowledge of coal in the Bylong Valley (in the area of Mount Penny) and the DPI’s holdings under EL 6676 - paragraph 744
Mr Macdonald’s enquiries of the DPI in 2008 about coal reserves in the Bylong Valley in the area of Mount Penny - paragraph 754
The enquiries made by Mr Gibson on behalf of Mr Macdonald on 9 May 2008 and 14 May 2008 - particularised by the Crown as the first and second acts of misconduct - paragraph 759
The evidence relied upon to prove the first act of misconduct - paragraph 760
The production of Wiles Map 1 and the Ministerial Briefing - paragraph 767
The evidence relied upon to prove the second act of misconduct - paragraph 780
Is the first act of misconduct and/or the second act of misconduct proved? - paragraph 797
The Shepherd fact is proved beyond reasonable doubt - paragraph 812
The first and second acts of misconduct are established - paragraph 816
The relevance of the evidence of Mr and Mrs Fitzhenry to proof of the Crown case - paragraph 821
Mr Fitzhenry’s evidence - paragraph 845
Mrs Fitzhenry’s evidence - paragraph 852
The weight to be afforded the evidence of Mrs Fitzhenry - paragraph 869
The weight to be afforded the evidence of Mr Fitzhenry - paragraph 870
The events after 14 May 2008 up to and including the meeting on 6 June 2008 - paragraph 873
The third act of misconduct is abandoned by the Crown - paragraph 877
The events leading up to the 4 June 2008 meeting - paragraph 884
The Watermark EL - paragraph 887
Further events preceding the 4 June 2008 meeting - paragraph 895
The Ministerial Briefing of 2 June 2008 which included Wiles Map 2 and Ms Moloney’s six small areas - paragraph 904
The preparation of Wiles Map 2 - paragraph 908
Wiles Map 2
Ms Moloney’s identification of the “Six Small Areas” - paragraph 914
The Ministerial Briefing of 3 June 2008 - paragraph 915
The 4 June 2008 meeting - paragraph 922
Some preliminary observations with regard to the fourth act of misconduct - paragraph 934
The significance of the fifth act of misconduct to proof of the existence of the conspiracy - paragraph 940
The fifth act of misconduct - paragraph 950
The 6 June 2008 meeting - paragraph 951
Mr Gibson’s evidence in summary - paragraph 956
Mr Mullard’s evidence in summary - paragraph 961
The Crown’s position on how the Court should resolve conflict in the evidence - paragraph 982
The position of the accused - paragraph 997
Is there common ground between the evidence of Mr Gibson and Mr Mullard as concerns the 6 June 2008 meeting? - paragraph 1015
Is the fifth act of misconduct proved? - paragraph 1041
Other factual findings arising from the 4 June 2008 and 6 June 2008 meetings - paragraph 1046
Despite the fifth act of misconduct not being proved, is the evidence otherwise capable of establishing proof of the existence of the conspiracy beyond reasonable doubt? - paragraph 1049
When was the “Mount Penny Coal Release Area” (encompassing Cherrydale Park, Coggan Creek and Donola) designated and when was it included as Mount Penny Coal Release Area in the closed EOI process for the grant of an EL? - paragraph 1062
The 17 June 2008 meeting - paragraph 1069
Mr Schiavo creates Diagram X encompassing Cherrydale Park, Donola and Coggan Creek - paragraph 1074
Diagram X
The sixth act of misconduct - paragraph 1093
The 16 June 2008 EOI Areas document - paragraph 1097
The 16 June 2008 meeting - paragraph 1103
The 16 June 2008 Credo Dinner - paragraph 1108
The 17 June 2008 meeting [1023] - paragraph 1112
Was there the “opportunity” for Mr Macdonald to provide the “timetable information” to Edward Obeid or Moses Obeid? - paragraph 1120
The relevance of the 23 July 2008 Rumore conference to proof of the sixth act of misconduct - paragraph 1124
The letters by Mr Grigor and Mr Irwin - paragraph 1131
Mr Grigor’s letters - paragraph 1132
Mr Irwin’s letter - paragraph 1136
The source of the information provided by Mr Brook - paragraph 1138
Is the sixth act of misconduct established? - paragraph 1147
The timing and significance of Mr Rumore being retained to act for the Obeid family on 23 June 2008 - paragraph 1156
“Tianda” and Mr Fang are introduced to Moses Obeid who then introduces them to Mr Rumore - paragraph 1164
The initiation of contact between Mr Fang and Moses Obeid - paragraph 1168
The submissions of the accused - paragraph 1172
Mr Fang’s further dealings in relation to the Mount Penny area - paragraph 1181
Did Mr Macdonald introduce Mr Fang and Moses Obeid? - paragraph 1186
The first Wentworth Hotel meeting between Mr Brook and Moses Obeid: 3 July 2008 - paragraph 1194
My ultimate rejection of the “exit strategy” as an innocent explanation - paragraph 1204
The significance of Moses Obeid’s representation concerning a landholders alliance in his contractual dealings - paragraph 1213
The acquisition of Donola and Coggan Creek and the question of the existence of a landholders alliance - paragraph 1218
The first Wentworth Hotel meeting concludes - paragraph 1240
The second Wentworth Hotel meeting - paragraph 1244
Paul Obeid provides a cardboard cylinder containing “maps” - paragraph 1247
The voir dire on the issue of the “maps” - paragraph 1253
The voir dire concludes - paragraph 1258
Mr Brook’s evidence about the “maps” - paragraph 1259
The significance of the “contiguous” or “adjacent” area to the question whether Wiles Map 2 was produced at the second Wentworth Hotel meeting - paragraph 1272
The relationship between the contiguous/adjacent zone and “Stage 2” of the project as advanced by Mr Brook in his dealings after 7 July 2008 - paragraph 1282

Is the fourth act of misconduct established? - paragraph 1301
Was Wiles Map 2 produced to Paul Obeid at the second Wentworth Hotel meeting? - paragraph 1315
The issue of Mr Brook’s credibility on the question whether Wiles Map 2 was produced at the second Wentworth Hotel meeting and more generally - paragraph 1318
Submissions of the Crown on the confidentiality of Wiles Map 1 - paragraph 1333
Submissions of the Crown on the confidentiality of Wiles Map 2 - paragraph 1342
Submissions of the accused as to whether Wiles Map 1 and/or Wiles Map 2 were confidential - paragraph 1343
Is the fourth act of misconduct established and, if so, was it committed in furtherance of the conspiracy? - paragraph 1347
The second Wentworth Hotel meeting concludes - paragraph 1359
Mr Brook’s actions after the second Wentworth Hotel meeting - paragraph 1362
The seventh alleged act of misconduct - paragraph 1364
The evidence relevant to the preparation of the 2 July 2008 list - paragraph 1370
The Coal Register as the primary source from which the list was compiled - paragraph 1373
Was the Coal Register confidential? - paragraph 1374
The earlier draft lists of companies created by the DPI - paragraph 1375
The 2 July 2008 list - paragraph 1379
The form in which the 2 July 2008 list was provided to the Minister - paragraph 1385
The 7 July 2008 meeting with the Minister - paragraph 1389
Opportunity for Mr Macdonald to provide the 2 July 2008 list or the information on it to the Obeids - paragraph 1391
The handwritten list - paragraph 1395
Was the handwritten list in Moses Obeid’s writing? - paragraph 1396
What is the significance, if any, of the variations between the 2 July list and the handwritten list as concerns the provenance of the handwritten list? - paragraph 1405
The form and content of the various lists of companies in evidence - paragraph 1410
The submissions of the accused - paragraph 1420
Did Mr Macdonald provide the 2 July 2008 list (or the information it contained) to Moses Obeid? - paragraph 1438
Was the provision of the 2 July 2008 list (or the information on it) in breach of Mr Macdonald’s duties of confidentiality and/or impartiality and, if so, was that act of misconduct committed in furtherance of the conspiracy? - paragraph 1444
Dealings between Mr Brook (including as on behalf of Lehman Brothers), the Obeid family, and Monaro Mining NL - paragraph 1453
Mr Brook undertakes “desktop due diligence” of the handwritten list of companies - paragraph 1458
Mr Brook approaches Monaro Mining NL - paragraph 1459
Monaro Mining NL’s dealings with the DPI in 2007 and 2008 - paragraph 1464
Mr Brook’s further dealings with Monaro Mining NL - paragraph 1472
The 18 July 2008 conference with Mr Rumore and the first mention of Mr Brook and Monaro Mining NL - paragraph 1478
The “false” paper trail is created - paragraph 1482
23 July 2008: The initial Brook-Rumore-Obeid meeting and Lehman Brothers’ rejection of Mr Brook’s proposal - paragraph 1498
The Brook-Wong teleconference on 23 July 2008 - paragraph 1510
The Share Option Deed between Voope P/L and Monaro Mining NL - paragraph 1519
The first draft of the Share Option Deed [1604] - paragraph 1520
The second draft of the Share Option Deed [1620] - paragraph 1528
The third draft of the Share Option Deed [1650] - paragraph 1542
The fourth draft of the Share Option Deed [1660] - paragraph 1548
The executed Share Option Deed [1666] - paragraph 1552
Meanwhile at the DPI: The production of the documents the subject of the eighth act of misconduct from late July 2008 - paragraph 1563
The eighth act of misconduct - paragraph 1567
The Coutts memorandum of 5 August 2008 - paragraph 1582
Is the eighth act of misconduct established and, if so, was it committed in furtherance of the conspiracy? - paragraph 1587
The impact of the fact the Coutts Memorandum was not signed by the Minister upon proof of the eighth act of misconduct - paragraph 1598
The public launch of the EOI process and Monaro Mining NL is invited - paragraph 1608
Dealings between Mr Brook, Monaro Mining NL and the Obeids following the collapse of Lehman Brothers - paragraph 1612
The reopening of the EOI process and the ninth act of misconduct - paragraph 1636
The extension of the EOI process - paragraph 1638
Is the ninth act of misconduct established? - paragraph 1662
Monaro Mining NL’s Additional Financial Contribution (AFC) - paragraph 1672
Cascade Coal P/L submits an application for Mount Penny in the reopened EOI process - paragraph 1689
Post-conspiracy period - paragraph 1694
Moses Obeid meets with representatives of Cascade Coal P/L - paragraph 1700
The Evaluation Committee identifies an ambiguity in Monaro Mining NL’s application - paragraph 1702
Monaro Mining NL abandons its application - paragraph 1720
The Swissôtel Meeting - paragraph 1723
Were there further meetings between Mr Brook and Mr Rampe? - paragraph 1728
The first Cascade Coal P/L meeting - paragraph 1730
The second Cascade Coal P/L meeting - paragraph 1734
The third Cascade Coal P/L meeting - paragraph 1738
The Evaluation Committee’s decision in respect of the Mount Penny Coal Release Area and the grant of the EL - paragraph 1754
Mr Brook’s credibility and reliability - paragraph 1767
Sale of the Joint Venture - paragraph 1781
The Rights Termination Agreement - paragraph 1797
The Deed of Charge - paragraph 1800
Payment of Tranche 1 - paragraph 1804
Tranche 2 - paragraph 1806
Is the existence of the conspiracy established beyond reasonable doubt? - paragraph 1822
Money and motivation - paragraph 1882
The financial motives the Crown attributes to Edward Obeid and Moses Obeid - paragraph 1883
The accused’s submissions concerning motive - paragraph 1889
The motives the Crown attributed to Mr Macdonald - paragraph 1893
Mr Martin’s submissions on the question of motive - paragraph 1894
Change of ownership of Cherrydale Park - paragraph 1899
The appointment of UPG P/L as the new trustee company for the Moona Plains Family Trust - paragraph 1905
The Tripartite Landowners Deed - paragraph 1924
The Profit Sharing Deed - paragraph 1929
Moses Obeid’s further role in distancing the Obeid family from ownership of Cherrydale Park - paragraph 1936
Is Moses Obeid’s participation in the conspiracy proved beyond reasonable doubt? - paragraph 1951
The lies Moses Obeid told to Ms Davies - paragraph 1970
The lies Moses Obeid told to Mr Shanahan and Ms Jiminez - paragraph 1972
The guilt of Mr Macdonald and Moses Obeid is established beyond reasonable doubt - paragraph 1979
Is Edward Obeid’s participation in the conspiracy proved beyond reasonable doubt? - paragraph 1981
The co-conspirators rule - paragraph 1998
The Jones v Dunkel direction sought by the accused - paragraph 2021
Ultimate findings - paragraph 2031
Am I satisfied of the seriousness of the offending and that it merits criminal punishment? - paragraph 2034
Verdicts - paragraph 2046

JUDGMENT

HER HONOUR: The joint trial of the accused Mr Ian Macdonald, Mr Edward Obeid and Mr Moses Obeid was listed to commence before me on 10 February 2020 without a jury.^[1]
1. On 12 December 2019, I made an order pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) that the trial proceed in that way (see R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 9) [2019] NSWSC 1785).
During the course of pre-trial hearings on 3 - 9 April and 6 May - 6 June 2019, a draft indictment dated 8 April 2019 was served on the parties and furnished to the Court. It contained a minor amendment to the indictment dated 13 July 2017 upon which the accused were originally arraigned on 6 October 2017. The accused were not re-arraigned on the amended indictment.
The pre-trial hearings were conducted on the basis that the slightly reformulated charge in the indictment dated 13 July 2017 would be the offence the Crown intended to prosecute at trial and the charge upon which the accused would be re-arraigned at the commencement of the trial. That remained the position when the trial was listed for mention on 5 February 2020 to confirm the trial date. That indictment was in the following terms:

1. Between about 1 September 2007 and about 31 January 2009 at Sydney and elsewhere in the State of New South Wales (NSW), conspired together that Ian Michael Macdonald (Macdonald) in the course of or connected to his public office as Minister for Mineral Resources would wilfully misconduct himself, without reasonable cause or justification, by doing acts in connection with the granting of an exploration licence at Mount Penny NSW:
(a) without impartiality on the part of Macdonald; and/or
(b) in breach of Macdonald's duties of proper confidentiality; and
(c) concerning the interests of Edward Moses Obeid, Moses Edward Obeid, and/or their family members and/or associates, such misconduct being serious and meriting criminal punishment having regard to the responsibilities of the Office and the Officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.

On 9 February 2020, the Crown notified its intention to seek a grant of leave to amend the indictment dated 13 July 2017 and to have the accused re-arraigned on a reformulated charge of conspiracy to commit the common law offence of wilful misconduct in public office.^[2]
2. The conspiracy alleged is itself a common law offence.
The charge as reformulated was in the following terms:

Between about 1 September 2007 and about 31 January 2009 at Sydney and elsewhere in the State of New South Wales, each of the accused conspired together that Mr Macdonald would, in the course of or connected to his public office as Minister for Mineral Resources in the Executive Government of the State of New South Wales, wilfully misconduct himself, without reasonable cause or justification, by doing acts:
(a)   in connection with the granting of an exploration licence at Mount Penny in the State of New South Wales; and
(b)   concerning the interests of Edward Moses Obeid and/or Moses Edward Obeid and/or their family members and/or associates; and
(c)   knowingly or recklessly in breach of:
(i)   his duties and obligations of impartiality as a Minister in the Executive Government of the State of New South Wales; and/or
(ii)   his duties and obligations of confidentiality as a Minister in the Executive Government of the State of New South Wales,

such misconduct being serious and meriting criminal punishment having regard to the responsibilities of the Office Mr Macdonald occupied as Minister for Mineral Resources and his responsibilities as the holder of that Office, the importance of the public objects which the Office and Officeholder serve and the nature and extent of the departure from those objects.
(Emphasis added.)

On 10 February 2020, the first day of the trial, the Crown applied for leave under s 20 of the Criminal Procedure Act 1986 (NSW) to amend the indictment in those terms.
The application for leave to amend the indictment was opposed by each of the accused. Mr Martin, counsel for Mr Macdonald, submitted that the reformulated charge was defective for latent duplicity and/or a lack of particularity in the identification of what the Crown alleged to be the acts of wilful misconduct Mr Macdonald agreed with Edward Obeid and Moses Obeid he would commit in the Office he held as Minister for Mineral Resources.
Ms Francis, counsel for Edward Obeid, contended that the reformulated charge did not disclose an offence known to law and, that being the case, Edward Obeid intended to enter a demurrer to the indictment were leave granted to amend it.
Mr Neil QC, senior counsel for Moses Obeid, complained that for the Crown to allege that the accused agreed that Mr Macdonald would wilfully misconduct himself in public office, either by knowingly acting in breach of his Ministerial duties and obligations or because he was reckless as to whether that were so, was to render the charge defective as a matter of law. Mr Neil also raised the possibility that his client might demur to the indictment irrespective of whether the Crown’s application for leave to amend the indictment was granted.
On 10 February 2020, after I reserved my decision on the Crown’s application for leave to amend the indictment, the Crown notified its intention to have the accused arraigned on a further reformulated charge in the following terms, the words “or recklessly” having been deleted:

Between about 1 September 2007 and about 31 January 2009 at Sydney and elsewhere in the State of New South Wales, each of the accused conspired together that Mr Macdonald would, in the course of or connected to his public office as Minister for Mineral Resources in the Executive Government of the State of New South Wales, wilfully misconduct himself, without reasonable cause or justification, by doing acts:
(a)   in connection with the granting of an exploration licence at Mount Penny in the State of New South Wales;^[3] and
(b)   concerning the interests^[4] of Edward Moses Obeid, and/or Moses Edward Obeid and/or their family members^[5] and/or associates;^[6] and
(c)   knowingly in breach of:
(i)   his duties and obligations of impartiality as a Minister in the Executive Government of the State of New South Wales; and/or
(ii)   his duties and obligations of confidentiality as a Minister in the Executive Government of the State of New South Wales,

such misconduct being serious and meriting criminal punishment having regard to the responsibilities of the Office Mr Macdonald occupied as Minister for Mineral Resources and his responsibilities as the holder of that Office, the importance of the public objects which the Office and Officeholder serve and the nature and extent of the departure from those objects.
3. Pursuant to s 29(1) of the Mining Act 1992 (NSW), the holder of an exploration licence (EL) is entitled to prospect on specified land for a specified mineral or minerals. On 21 October 2009, EL 7406 for coal was granted over an area of 8,370 hectares in the Bylong Valley. That area included Mount Penny, a prominent topographical feature located adjacent to three properties owned either by the Obeid family (Cherrydale Park) or by associates of that family (Donola and Coggan Creek). The events leading to the grant of that EL, including Mr Macdonald’s role as the responsible Minister, are the subject of extensive analysis throughout the judgment.
4. The Crown case, as ultimately particularised, was that the meaning of the words “concerning the interests of” in the indictment “does not require particularisation beyond the ordinary meaning of the words”. It was the Crown case that Mr Macdonald agreed to misconduct himself with the improper purpose of advancing the interests (primarily financial) of Edward Obeid, Moses Obeid and/or their family members and/or associates. See MFI 134/1 p 9.
5. The Crown case, as ultimately particularised, was that the “family members” referred to in the indictment are Edward Obeid, his wife Judith Obeid and their descendants. See MFI 134/1 p 9.
6. The Crown case, as ultimately particularised, was that the “associates” referred to in the indictment included Justin Kennedy Lewis, Ross and Rocco Triulcio, Giovanni (John) Campo, Tina Chalabian, Sevag Chalabian, Sid Sassine and Andrew Kaidbay. See MFI 134/1 p 10.

On 11 February 2020, following correspondence from the Crown which attached the further amended indictment, the Court reconvened. The accused did not oppose leave being granted to file the further amended indictment.
On 12 February 2020, the Crown formally presented an indictment dated 11 February 2020 upon which the accused were re-arraigned. On their arraignment each of the accused entered a plea of not guilty.^[7]
7. T 1-2.

The law of conspiracy

The offence of misconduct in public office is a common law offence.^[8] A conspiracy to commit that offence is also a common law offence.^[9] At common law, a conspiracy is an agreement intentionally entered into between two or more people to do an unlawful act or to do a lawful act by unlawful means.^[10]
8. R v Quach (2010) 27 VR 310; [2010] VSCA 106 at [46]. The analysis of the elements of the offence of misconduct in public office in Quach is referred to, without criticism, in Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [133] and Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 at [67]-[84].
9. Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39.
10. In Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 at [51] McHugh J (Gummow J agreeing) expressed the view that although that is a definition that finds its source in Mulcahy v The Queen (1868) LR 3 HL 306 at 317, it was not clear what the second limb of the definition adds, given that both limbs require an agreement to do an unlawful act.
It is the fact of the agreement, or combination, to engage in a common enterprise of that kind which is the actus reus of the offence of conspiracy. However, in the absence of evidence of the words used or other conduct of the alleged conspirators at the time the agreement is forged, what is done in executing the agreement is commonly relied upon to prove both an anterior agreement to achieve the unlawful objective and the terms of that agreement, sometimes referred to as the scope of the agreement.
Proof of the scope of a conspiracy may also consist in evidence of the separate acts and declarations of the alleged co-conspirators which point to their common or shared objective. When considered in combination, those separate acts and declarations may justify the tribunal of fact finding that there must have been a conspiracy of the kind alleged.^[11]
11. Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 cited with approval in Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 at 93 and 100.
The mental element that renders a person liable as a conspirator is a shared intention with at least one other person that the unlawful act be committed. To express it another way, the agreement that is the essence of the offence of conspiracy consists in the manifestation of a common intention that an unlawful act occur. A mere expectation by one or more of the alleged conspirators that an unlawful act will occur will not be sufficient to make out the offence.^[12]
12. R v Trudgeon (1988) 39 A Crim R 252.
Accordingly, in this trial it is not enough for the Crown to prove that Edward Obeid and Moses Obeid had the hope or expectation, however fervently held, that Mr Macdonald would misconduct himself as the Minister for Mineral Resources in connection with the granting of an exploration licence (EL) at Mount Penny in a way that would be to their ultimate benefit; each of the accused must have agreed that he would act in that way.
In this trial, as in any trial where a conspiracy is alleged, a clear distinction must be made and maintained between the existence of the conspiracy that is alleged and the participation of each of the alleged conspirators in it. Proof of both facts, to the criminal standard, is essential to proof of guilt.

The conspiracy charged in this trial

The offence upon which the accused were ultimately arraigned alleges that “[b]etween about 1 September 2007 and about 31 January 2009” they each “conspired together” (that is, they each intentionally entered into an agreement) that “in the course of or connected to his public office as Minister for Mineral Resources in the Executive Government of the State of New South Wales”, Mr Macdonald would “wilfully” (that is, knowingly)^[13] “misconduct himself” by acting in breach of his Ministerial duties and obligations of confidentiality and/or impartiality, “in connection with the granting of an exploration licence” at Mount Penny, and that he would do so for the improper purpose of benefiting Edward Obeid and/or Moses Obeid and/or members of their family and/or their associates.
13. MFI 181 p 8.
Put simply, it is the Crown case that each of the accused agreed that as Minister for Mineral Resources Mr Macdonald would commit the common law offence of misconduct in public office by doing “the acts” alleged in the indictment, namely (unspecified) acts in connection with the granting of an EL at Mount Penny concerning the financial interests of the accused and/or members of their family and/or their associates, for the improper purpose of benefitting some or all of those people, and that, by agreeing that Mr Macdonald would act in that way, each of the accused knew and intended that Mr Macdonald would wilfully breach his Ministerial duties and obligations of impartiality and/or confidentiality.

The indictment also alleges that the misconduct is:

… serious and meriting criminal punishment having regard to the responsibilities of the Office Mr Macdonald occupied as Minister for Mineral Resources and his responsibilities as the holder of that Office, the importance of the public objects which the Office and Officeholder serve and the nature and extent of the departure from those objects.

Controversies as to the elements of the conspiracy charged

Two related controversies as to the elements of the conspiracy charged were addressed by the parties in their closing submissions.
The first concerned whether it is an element of the substantive offence of misconduct in public office that the misconduct in question is so serious as to merit criminal punishment and, if it is, how that element is imported into a conspiracy to commit that offence.
A related controversy concerned whether the Crown is obliged to prove that at the time the conspiratorial agreement was reached, each of the accused knew or appreciated that the acts of misconduct it was agreed Mr Macdonald would commit in public office was so serious as to merit criminal punishment, where the Crown alleges an agreement at a high level of generality rather than an agreement which contemplated that Mr Macdonald would commit specified acts of misconduct in furtherance of achieving the object of the conspiracy, or whether I am required to make that assessment before verdicts of guilty could be returned against the accused.
The following analysis addresses and resolves those controversies.
The first question involves a consideration as to whether what has been identified in the case law as the final element of the substantive offence of misconduct in public office, obliging the tribunal of fact to be satisfied that the proven act(s) of misconduct are so serious as to merit punishment before a conviction can result,^[14] is imported as an element into a conspiracy to commit that offence. If it is, it follows that the Crown would be obliged to prove that those alleged to be party to an agreement that a public officer should wilfully misconduct themselves in public office must also know and intend that the misconduct comprehended by the agreement is so serious as to merit criminal punishment, and that they knew or appreciated that fact at the time they agreed to be party to the agreement.
14. R v Quach (2010) 27 VR 310; [2010] VSCA 106.
That is a question as to which there is no binding or persuasive authority.
Its resolution will also inform resolution of the wider challenge to the indictment mounted by each of the accused. In different ways and with different emphasis, counsel for the accused in their closing submissions argued that the indictment does not disclose an offence known to the law and that I should direct verdicts of not guilty for each of the accused.
These various challenges to the indictment need to be resolved before any consideration can be given to resolving the factual disputes that arise on the evidence, and whether the facts and circumstances that I am satisfied are established by the evidence are sufficient to prove the guilt of any of the accused of the conspiracy alleged beyond reasonable doubt.^[15]
15. Before turning to those questions, I note that the events the subject of the trial were the subject of various drafted and executed contractual agreements, minuted conferences, diarised meetings, Departmental documents and email correspondence. Those events also concerned and involved a range of individuals, many of whom gave evidence in the Crown case, and some of whom are referred to in the following analysis. The categories of the documentary evidence tendered by the Crown and the witnesses who gave evidence in its case are set out at par 360 and following below. I also note that a full dramatis personae is annexed to the judgment (Annexure 1).

The submissions of the Crown

In the Crown’s submission, the elements of the conspiracy offence charged are clearly identified in the way the indictment is framed.
Having regard to the elements of the substantive offence of misconduct in public office, the Crown accepted that in proving a conspiracy to commit that offence, it must prove that each of the accused knew or intended that Mr Macdonald would:

i. as a public official;
ii. in the course of, or connected to, his public office;
iii. commit misconduct by:
a. intentionally doing acts in connection with the granting of an exploration licence at Mount Penny NSW;
b. with the improper purpose of benefitting Edward and/or Moses Obeid and/or their family members and/or associates;

iv. commit the misconduct set out at (iii) above wilfully, that is knowing that he was acting in breach of:
a. his duties and obligations of impartiality as a Minister in the Executive Government of the State of New South Wales; and/or
b. his duties and obligations of confidentiality as a Minister in the Executive Government of the State of New South Wales;

v. without reasonable excuse or justification.

In relation to iii(b.) above, the Crown accepted that it was also obliged to prove that each of the conspirators appreciated that “but for” the improper purpose alleged, Mr Macdonald would not have agreed to act in connection with the granting of an EL at Mount Penny in wilful breach of his Ministerial duties and obligations. The improper purpose need not be the sole purpose for which Mr Macdonald agreed to misconduct himself in the way alleged, but it must be proved that he would not have acted in the way alleged were it not for that improper purpose.^[16]
16. Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 at [84].
The Crown submitted^[17] that were I satisfied that each of the elements in (i)-(v) above are proved beyond reasonable doubt, before I could convict any of the accused I must also be satisfied, beyond reasonable doubt, that the misconduct the subject of the agreement into which each of the accused intentionally entered was serious and meriting criminal punishment having regard to the responsibilities of the Office Mr Macdonald occupied as the Minister for Mineral Resources, his responsibilities as the holder of that Office, the importance of the public objects which the office and Officeholder serve and the nature and extent of the proven departure from those objects.
17. MFI 181 pars 11 and 726. See also Shum Kwok Sher v Hong Kong Special Administrative Region [2002] 3 HKC 117; (2002) 5 HKCFAR 381 at [86], referred to with approval in Blackstock v R [2013] NSWCCA 172 at [13]; Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [141]; R v Quach (2010) 27 VR 310; [2010] VSCA 106 at [42].
In the Crown’s submission, where a conspiracy to commit the substantive offence of misconduct in public office is charged, this final “element” does not require the Crown to prove that the alleged conspirators knew, intended or were aware that the commission of the particular acts of misconduct in public office contemplated by the agreement into which they intentionally entered were, or would be, so serious as to merit criminal punishment.
That is, for the purposes of this trial, the Crown submitted it was not obliged to prove that the accused agreed and intended that the acts of misconduct it was agreed Mr Macdonald would commit^[18] pursuant to the agreement into which they each intentionally entered, and in which they each agreed they would participate, was, or would be, so serious that it merited criminal punishment. In the Crown’s submission, that “aspect” of the conspiracy, as framed in the indictment, is a qualitative assessment to be undertaken by the tribunal of fact. It only arises if I am satisfied that the existence of the conspiracy is proved beyond reasonable doubt and that the participation of the accused whose guilt is under consideration is also proved beyond reasonable doubt.
18. Namely (unspecified) acts in connection with the granting of an EL at Mount Penny concerning the interests of the accused and other unnamed members of their family and associates.
In the Crown’s analysis, the final “element” of the substantive offence of misconduct in public office operates to confine its scope so as to distinguish it from other conduct of a public official, or of a person holding public office, which might attract public condemnation, including, for example, corrupt conduct under statute.^[19] The Crown submitted it is for that reason that the seriousness of the misconduct is assessed in the context of the responsibilities of the Office occupied by the public official and the public objects served by the Office and the Officeholder.
19. For example Independent Commission Against Corruption Act 1988 (NSW) Part 3; Crimes Act 1900 (NSW) Part 4A.
In the Crown’s submission, the significance of the qualitative assessment of the proven misconduct that must be undertaken by the tribunal of fact where a conspiracy to commit the common law offence is charged, also operates as a precondition to conviction and in the same way. That is, before a verdict of guilty could lawfully be returned against any of the accused in this trial, I must be satisfied that the scope or object of the misconduct which it was agreed Mr Macdonald would commit is so serious as to attract punishment as a crime. In that way, the conspiracy charged is distinguished from an agreement to commit another criminal offence that might also attract public opprobrium, including, for example, a conspiracy to defraud committed by executives of a public corporation.
The Crown submitted that, viewed in that way, and despite that qualitative assessment being described as an element of the substantive offence of misconduct in public office in the cases in this Court which have recently considered the constituent elements of that offence,^[20] that assessment is not an element of the substantive offence, at least not in the technical sense. Rather, it comprehends what the Crown described as “an act, fact or circumstance, or state of mind [of the accused] at the time of [the commission of] the offence which renders it criminal”.^[21]
20. Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32.
21. MFI 181 par 736.
The Crown submitted the correctness of that analysis follows, by analogy, from Peters v The Queen^[22] where the concept of dishonesty in a charge of conspiracy to defraud the Commonwealth was held not to be a separate element of that offence. For that reason, the subjective test of dishonesty formulated in the English cases, including R v Ghosh,^[23] which required a jury to be satisfied that an accused must realise that what they were doing was dishonest by the standards of ordinary and reasonable people, was regarded as superfluous in a conspiracy to defraud under the Crimes Act 1914 (Cth). As Toohey and Gaudron JJ observed at [9], dishonesty in the context of that offence is a characteristic of the means the conspirators agreed would be employed to affect the fraud and also descriptive of what is involved in fraud.
22. (1998) 192 CLR 493; [1998] HCA 7.
23. [1982] EWCA Crim 2; [1982] QB 1053 per McHugh at par 79.
At [15], a passage upon which the Crown placed particular reliance, their Honours said:

There is a degree of incongruity in the notion that dishonesty is to be determined by reference to the current standards of ordinary, honest persons and the requirement that it be determined by asking whether the act in question was dishonest by those standards and, if so, whether the accused must have known that that was so. That incongruity comes about because ordinary, honest persons determine whether a person's act is dishonest by reference to that person's knowledge or belief as to some fact relevant to the act in question or the intention with which the act was done. They do not ask whether he or she must be taken to have realised that the act was dishonest by the standards of ordinary, honest persons. Thus, for example, the ordinary person considers it dishonest to assert as true something that is known to be false. And the ordinary person does so simply because the person making the statement knows it to be false, not because he or she must be taken to have realised that it was dishonest by the current standards of ordinary, honest persons.

At [28]-[29], and then later at [33]-[34], their Honours explained how the issue of dishonesty arises in the context of a conspiracy to defraud and how that issue should be dealt with in a jury trial:

[28] As in other contexts, the question whether the agreed means are dishonest is, at least in the first instance, a question of knowledge, belief or intent and, clearly, that is a question of fact for the jury. On the other hand, the question whether, given some particular knowledge, belief or intent, those means are dishonest is simply a question of characterisation. And as in other contexts, the question whether an act done with some particular knowledge, belief or intent is properly characterised as dishonest is usually not in issue. Thus, putting to one side the exceptional case where it is in issue, it is sufficient for a trial judge simply to instruct the jury that they must be satisfied beyond reasonable doubt as to the knowledge, belief or intent alleged by the prosecution before they can convict. Alternatively, the trial judge may instruct the jury that, if satisfied as to the knowledge, belief or intent alleged, the means in question are properly characterised as dishonest and they should so find.
[29] Because of the view expressed by McHugh J and Gummow J in this case, we should indicate that we incline to the view that should an issue arise whether the agreed means are properly characterised as dishonest, that issue should be left to the jury. At least, that is so if the means are capable of being so characterised. And the jury should be instructed that the question whether they are to be characterised as dishonest is to be determined by application of the standards of ordinary, decent people. However, these issues need not be pursued in this case.
…
[33] As already explained, "dishonesty" does not appear in the statute establishing the offence of conspiracy to defraud the Commonwealth. But when properly analysed, the offence of conspiracy to defraud involves dishonesty at two levels. First, it involves an agreement to use dishonest means. Ordinarily, the means will be dishonest if they assert as true something which is false and which is known to be false or not believed to be true or if they are means which the conspirators know they have no right to use or do not believe that they have any right to use the means in question. And quite apart from the use of dishonest means, the offence involves an agreement to bring about a situation prejudicing or imperilling existing legal rights or interests of others. That, too, is dishonest by ordinary standards. If those matters are properly explained to a jury, further direction that the accused must have acted dishonestly is superfluous. Conversely, if those matters are not properly explained, a direction that the jury must be satisfied that the conspirators were dishonest is unlikely to cure the defect.
[34] It need hardly be said again that a statute establishing an offence may use the term "dishonestly" in its ordinary meaning or use it in a special sense. In either case it will ordinarily be necessary for the trial judge to explain precisely what the legislation requires. In the case of conspiracy to defraud, it will ordinarily be sufficient to instruct the jury as to the facts they must find if the agreed means are to be characterised as dishonest. Alternatively, it will be sufficient to instruct them that, if satisfied as to those facts, they will be satisfied that the agreed means were dishonest. Only in the borderline case will it be necessary for the question whether the means are to be so characterised to be left to the jury. In this area, but only in this area, we differ from the approach taken by McHugh J and Gummow J.

The approach taken by McHugh J (with whom Gummow J agreed) was not entirely coincident with the approach taken by Toohey and Gaudron JJ. It was, however, otherwise concordant with the proposition that proof of a deliberate design on the part of conspirators charged with conspiracy to defraud by using dishonest means to achieve their object, whilst essential to proving the offence, does not equate with an obligation on the part of the Crown to prove that the conspirators must know they were acting dishonestly, whether that is judged by their own subjective standards or their knowledge of the standards of ordinary people.^[24]
24. Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 at [79].
Consistent with the analysis at [15] in the joint judgment of Toohey and Gaudron JJ in Peters v The Queen, the Crown submitted that it would be incongruous to impose upon the Crown in this trial the obligation of proving that the accused were aware that the contemplated acts of misconduct were, or would be, assessed by a tribunal assessing their guilt as being so serious as to merit criminal punishment.

The submissions of the accused

The accused submitted that the Crown has fatally misconceived the case it seeks to prosecute by failing to allege in the indictment that the conspirators agreed and intended that Mr Macdonald would misconduct himself in such a way that would be sufficiently serious to merit criminal punishment. They submitted it is a fundamental misconception of the case brought against them that the Crown does not undertake the obligation of proving that they were each aware of, or knew that, the contemplated misconduct would be of that scope or character.
The accused submitted that it is not to the point that what they described as the final element of the substantive offence of misconduct in public office does not have a mental element, in the sense that the jury (or a judge in a judge-alone trial) does not enquire whether a person charged with that offence knew or believed or was reckless as to whether the act of misconduct committed by them was so serious as to warrant criminal punishment. The accused submitted that it remains a fundamental and uncontroversial feature of a conspiracy to commit a common law offence, that an accused know and intend each of the facts that make the act or acts unlawful, since it is that state of mind which is the source of the moral culpability comprehended by the crime of conspiracy.^[25]
25. See the analysis of Spigelman CJ in R v RK and LK (2008) 73 NSWLR 80; [2008] NSWCCA 338 at [55], confirmed as an accurate statement of the law by the High Court in The Queen v LK; The Queen v RK (2010) 241 CLR 177; [2010] HCA 17 at [114] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The accused submitted that this Court, and appellate courts in other jurisdictions, have consistently described the requirement that proven misconduct is serious and meriting criminal punishment as an element of the substantive offence of misconduct in public office, and that the Crown has cited no authority for what Mr Neil described in his submissions as the Crown’s “novel contention”^[26] that the seriousness of the misconduct is not an element of the substantive offence “in the technical sense”.^[27] Mr Neil observed that that contention was advanced by the Crown for the sole purpose of supporting the correctness of its analysis that the seriousness of the misconduct it was agreed that Mr Macdonald would commit is not a feature or factor which makes the agreement unlawful, but rather that it “sits outside” the agreement that is the subject of the conspiracy charged.
26. MFI 192 par 42.
27. MFI 181 par 727.

The authorities

An authoritative analysis of the elements of the substantive offence of misconduct in public office commences with R v Quach,^[28] a decision of the Victorian Court of Appeal in 2010. After considering the analysis by Sir Anthony Mason NJP in a decision of the Hong Kong Court of Final Appeal,^[29] Redlich JA (Ashley JA and Hansen AJA concurring) identified what his Honour described as the elements of the substantive offence of misconduct in public office in the following way:

(1) a public official;
(2) in the course of or connected to his public office;
(3) wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;
(4) without reasonable excuse or justification; and
(5) where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.
28. R v Quach (2010) 27 VR 310; [2010] VSCA 106 at [46] and following.
29. Shum Kwok Sher v HKSAR [2002] 3 HKC 117; (2002) 5 HKCFAR 381 at [79] and following.

Importantly, in identifying what Redlich JA described as the final element, his Honour rejected the analysis of Lord Widgery CJ in R v Dytham^[30] proposed by the appellant, to the effect that the element of culpability in the commission of the offence must be of such a degree that the impugned misconduct was “calculated” to injure the public interest so as to call for condemnation and punishment for that reason, and it is that feature of the so-called “element of culpability” which should impose upon the prosecution the obligation of proving that the accused’s conduct was so calculated.
30. [1979] QB 722 at 727-728.
In rejecting that analysis, Redlich JA shared the views expressed by Mason NJP in Shum Kwok Sher v HKSAR at [76] that the remarks of Lord Widgery CJ upon which reliance was placed, when read in context, concerned a concept of culpability, not in the sense of incorporating it into the mental element of the offence, but as embracing two different considerations: first, the absence of reasonable excuse or justification for the misconduct; and, second, that the conduct complained of must not simply amount to corrupt conduct or dishonest conduct, but must be of a sufficiently serious nature to warrant criminal punishment.^[31]
31. In Shum Kwok Sher v HKSAR [2002] 3 HKC 117; (2002) 5 HKCFAR 381 Mason NJP at [83] addressed the mental element required to constitute commission of the offence of misconduct in public office as a wilful or intentional act of misconduct accompanied by an improper motive, whether that be dishonest, corrupt or malicious.
At [86], Mason NJP went on to describe the second concept of culpability as a “qualification” attaching to the elements of the offence which he had identified at [84] as:

(a) A public official;
(b) who in the course of or in relation to his public office;
(c) wilfully and intentionally;
(d) culpably misconducts himself.

At [86]-[87], that qualification was further described:

The second qualification which I attach to the elements of the offence stated in the previous paragraph is that the misconduct complained of must be serious misconduct. Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.
Although this qualification is not made in the earlier cases, it underlies the concluding observations of Lord Widgery CJ in R v Dytham. The qualification is consistent with the concept of abuse of office and it is appropriate that the offence should be so qualified in the light of the creation of a range of disciplinary offences that now apply in the case of public sector employees. The qualification is not to be taken as a dividing line between the offence of misconduct in public office and disciplinary offences. There is no doubt a borderland in which the common law offence and disciplinary offences overlap.

In Obeid v R (2015),^[32] having expressly adopted the elements of the offence identified in Quach (which it was noted followed a review of the Australian, Canadian, English and Hong Kong decisions), the Court made the following remarks about the so-called fifth or final element of the substantive offence of misconduct in public office:

Turning to Mr Obeid’s third submission, what delineates this offence is not the presence or absence of connection between the conduct and the office, but rather the qualitative assessment required by the fifth element, which reflects what has been said in R v Dytham [1979] 1 QB 722 at 727-728, Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63 at 78-79, by Mason NPJ in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at 409-410 and by the Court of Appeal in Attorney General’s Reference (No 3 of 2003) at [56]. These authorities were considered in R v Quach at [42]-[45]. Far from leaving the boundaries of the offence “entirely at large”, it is a necessary condition that the misconduct has the requisite serious quality, meriting criminal punishment, in light of the nature and importance of the office and the public objects served. It is this requirement, ultimately, which confines the scope of the offence. In an appeal in which many points were taken, there was no objection taken to the fact that the qualitative assessment required by the fifth element rendered the offence uncertain.
32. 91 NSWLR 226; [2015] NSWCCA 309.

That passage was then quoted with approval by Bathurst CJ in Obeid v R (2017)^[33] at [221].^[34]
33. (2017) 96 NSWLR 155; [2017] NSWCCA 221.
34. The other members of the Court agreed: see [291] (Leeming JA); [336] (RA Hulme J); [470] (Hamill J); [474] (N Adams J).
In that appeal, one of the grounds advanced by the appellant concerned the so-called fifth or final element of the common law offence of misconduct in public office, the contention being that the trial judge had wrongly directed the jury in respect of the need for the jury to be satisfied of the seriousness of the misconduct before returning a verdict of guilty.
The written direction given to the jury by the trial judge mirrored the articulation of the final element of the offence of misconduct in public office identified in Quach. In elaborating upon his written directions, the trial judge’s oral directions to the jury included the following:

… The misconduct must be worthy of condemnation and punishment. The misconduct must be so serious that it amounts to an abuse of the public's trust in the office holder. It can be distinguished from less serious forms of misconduct by a public officer, specifically in the case of a Member of the Legislative Council [MLC], it can be distinguished from other misconduct for which civil proceedings might be brought if say the State has suffered some loss from this conduct or say an MLC has profited from his actions.
The misconduct that constitutes this offence can also be distinguished from misconduct from which the appropriate sanction might only be censure by Members of Parliament or only by the exercise of a judgment by the electorate at the next election. As I said the threshold is a high one. It requires an objective assessment by you that the conduct is worthy of condemnation of [[sic]] criminal punishment.
As the written directions indicate to address this element you must have regard to the responsibilities of the office and office holder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.
…
In relation to the public objects which the office of MLC serves you recall I outlined the place that MLCs occupy in the structure of government in this State. Members of the Legislative Council and the Legislative Assembly are an essential part of the structure of democratic Government. The necessity for them to act in the manner I have stated is self-evidently required to promote that form of government. Serious departures from that duty can undermine the public's confidence that Members of Parliament are representing their interests and those of the electorate and in turn they can undermine the integrity of parliamentary democracy.

On appeal, the appellant submitted the direction to the jury was wrong in law because it omitted two essential elements: (i) that the misconduct must be so far below acceptable standards as to amount to an abuse of the public’s trust in the officeholder; and (ii) that it must have the effect of harming the public interest.^[35]
35. Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [201] and following.
Neither of those submissions found favour with the Court.^[36]
36. Bathurst CJ rejected this ground of appeal at [235], with others members of the Court agreeing. See Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474] (N Adams J).
What is important for present purposes is not only the detailed analysis of authorities in other jurisdictions which informed the Court’s rejection of this ground of appeal, but the fact that, although at [222] Bathurst CJ implicitly emphasised that the seriousness of the misconduct and an assessment as to whether or not it merited criminal punishment operated as a limiting feature of the offence, at [223]-[234] his Honour consistently referred to the correct or appropriate formulation of a direction to the jury concerning the seriousness of the misconduct as comprising an element of the offence.
In adopting that nomenclature, it is clear that his Honour followed the decision of this Court in Obeid v R (2015),^[37] and the decisions in other jurisdictions which both preceded and followed that decision where the formulation of the final element as a constituent component of the offence has been considered.

Determination of the controversy as to the “final element” of the substantive offence of misconduct in public office in a conspiracy to commit that offence

37. (2015) 91 NSWLR 226; [2015] NSWCCA 309.

Unsurprisingly, in the course of identifying what needs to be proved beyond reasonable doubt for the substantive offence of misconduct in public office to be made out, this Court, as with courts in other common law jurisdictions, has applied the conventional legal analysis of identifying the constituent elements of the offence. In the absence of any binding or persuasive authority, I do not treat those same constituent elements or preconditions to proof of the substantive offence of misconduct in public office as determinative of what a party to a conspiracy that a public official commit misconduct in public office needs to know or intend in order that a conviction for a conspiracy to commit that offence is legally available.
I have come to that conclusion, not by reference to the what the Crown submitted was the analysis in Peters as to how the issue of dishonesty is to be treated where a conspiracy to defraud is alleged, as to which I am satisfied no useful parallels can be drawn, but instead by an analysis of what I am satisfied are facts each of the accused had to know in order to make the agreement to commit an unlawful act into which they are each alleged to have intentionally entered.
R v Freeman^[38] (a case to which Mr Neil referred in his submissions in the course of challenging the indictment) is instructive.
38. (1985) 3 NSWLR 303.
Freeman was concerned with a charge of conspiracy to pervert the course of justice where, as Street CJ observed, the conspiracy was not constituted by an agreement to commit an unlawful act, but an agreement to achieve a result by unlawful means, namely the corruption of the bail process by an agreement that an accused would use his own money as security for release to bail. The significance of Freeman, for present purposes, is as an additional source of authority for the proposition that a person’s criminal liability for conspiracy is not one of absolute or strict liability.^[39] The Crown must also prove that those who are participants in the conspiracy intend that the legal elements which comprise the conduct contemplated by the agreement will be agreed to in the knowledge that it is those facts which render that conduct illegal.
39. This was the position taken by the trial judge in R v Freeman following R v Porter [1910] 1 KB 369. That position was held by the Court of Criminal Appeal in Freeman to be erroneous at 310.
Freeman is also authority for another proposition which reflects an uncontroversial statement of the law that the common law offence of conspiracy is complete upon the making of an agreement. The additional proposition is that in proving the relevant intention which constitutes the mens rea of the offence of conspiracy (in this trial the intentional participation by each of the accused in an unlawful agreement that Mr Macdonald would commit misconduct in public office) the focus must be on the state of mind of the accused at the time the agreement was forged. As Street CJ said at 309, albeit in the context of a conspiracy to pervert the course of justice (the offence charged against Ms Freeman), it is “not relevant to look ahead and contemplate that unlawfulness or irregularity may have become apparent when one or more of the parties to the agreement was or were actually confronted with the bail documents or when their true purport was explained by the bail justice”. Similarly in this case, the Crown must prove that the parties to the conspiracy intended that the unlawful conduct the subject of their agreement would be committed by one of them, namely by Mr Macdonald as the only conspirator who had the capacity to commit that offence, but that all parties to the agreement (including Mr Macdonald) agreed that he should carry out their common design by doing things with the shared knowledge or belief that what they agreed that he should do would constitute a criminal offence.
The question, as I see it, is what did each of the accused need to know (or appreciate or understand) in order that what they agreed that Mr Macdonald would do in connection with the granting of an EL at Mount Penny concerning Edward Obeid and/or Moses Obeid’s interests and/or those of their family and/or associates would, in fact, constitute misconduct in the public office Mr Macdonald occupied as Minister for Mineral Resources in order to render them liable to conviction for the conspiracy charged?
I am satisfied, and direct myself accordingly, that the accused needed to know and intend that Mr Macdonald would:

as a public official;

in the course of, or connected to, his public office;

commit misconduct by:

(a) intentionally doing acts in connection with the granting of an EL at Mount Penny in New South Wales;
(b) with the improper purpose of benefitting Edward Obeid and/or Moses Obeid and/or their family members and/or associates;
and that he would

commit the misconduct set out at (iii) above wilfully, that is knowing that he was acting in breach of:

(a) his duties and obligations of impartiality as a Minister in the Executive Government of the State of New South Wales; and/or
(b) his duties and obligations of confidentiality as a Minister in the Executive Government of the State of New South Wales;

without reasonable excuse or justification.

In relation to elements (i) and (ii), there was no issue between the parties that, at all times relevant to the events comprehended by the conspiracy, in the Office Mr Macdonald held as a Minister in the Executive Government of the State of New South Wales, he was a public official.^[40]
40. The King v Boston (1923) 33 CLR 386; [1923] HCA 59; noting that the majority of the High Court held that the functions and duties of a Member of Parliament meant he or she was a public office holder. The essence of the majority decision was that, quoting Williams J in Faulkner v Upper Boddington Overseers (1857) 3 CB(NS) 412 at 420, a Member of Parliament has “duties to perform which would constitute in law an office” and that such duties were those “appertaining to the position he fills, a position of no transient or temporary existence, a position forming a recognised place in the constitutional machinery of government” (at 402).
It is also essential for the Crown to establish as a fact that the Ministerial duties and obligations of impartiality and confidentiality it was agreed that Mr Macdonald would breach would be breached in the course of or in relation to the public office he held as the Minister for Mineral Resources. That is, the Crown must establish that what each of the accused agreed that Mr Macdonald would do by agreeing he would wilfully misconduct himself by breaching his duties of impartiality and/or confidentiality, in connection with the granting of an EL at Mount Penny for the improper purpose alleged, would be causally linked to the office he held as Minister for Mineral Resources. Although each of the accused contended that the Crown had failed to prove any relevant breach of those duties, in the event that a wilful breach of either or both Mr Macdonald’s duties of confidentiality or impartiality was established, it was accepted the necessary causal link was proved.
As to elements (iii), (iv) and (v), the Crown is obliged to prove (and I direct myself accordingly) that each of the accused knew and intended that Mr Macdonald would wilfully (that is, knowingly and deliberately) misconduct himself in the Office he held as Minister for Mineral Resources in connection with the granting of an EL at Mount Penny, and for the improper purpose alleged, because they each knew that by Mr Macdonald agreeing to act in that way he agreed he would breach his obligations and duties as a Minister without reasonable excuse or justification.
The Crown’s obligation to prove elements (iii), (iv) and (v) beyond reasonable doubt is fundamental to proving the guilt of each of the accused. Unsurprisingly, proof of those elements was the focus in the way the trial was conducted and the focus of closing arguments.
The Crown is not obliged, however, to prove that the accused knew or intended that the acts of wilful misconduct it was agreed Mr Macdonald would commit were of such seriousness that criminal punishment was warranted. That is a question that arises only if I am persuaded the Crown has established (i)-(v) above.

Is the conspiracy charged an offence known to the law?

Reasonably anticipating a challenge from each of the accused that the conspiracy charged on the indictment is not an offence known to law, the Crown submitted that a common law conspiracy to commit the common law offence of misconduct in public office is an offence known to law. The Crown also submitted that the indictment upon which the accused were arraigned does not otherwise suffer from any legal deficiency such as might attract directed verdicts of not guilty.
In their closing submissions, each of the accused submitted that the indictment is defective in failing to disclose an offence known to law and that verdicts of not guilty should be returned for that reason.^[41]
41. MFI 190 par 7; MFI 191 pp 1-6; MFI 192 p 17 and following.
Were I persuaded that the indictment fails to disclose an offence known to law, it follows that there will be no need to deal with a question raised by me during the course of closing arguments as to whether verdicts of guilty might be returned were I to conclude that a conspiracy of the same scope and object as that alleged in the indictment is established by the evidence, and that the other elements essential to proof of the conspiracy charged are proved beyond reasonable doubt, but that the underlying agreement was forged or came into existence later than 9 May 2008, the date on which, on the Crown case, the first act of misconduct was committed and the date by which, again on the Crown case, the agreement must have been in existence. In the event that I decline to direct verdicts of not guilty, it will be necessary to return to consider that question.

Is the failure to allege an “improper purpose” fatal to the indictment?

Ms Francis commenced her closing submissions by emphasising the statement of principle in the decision of Bathurst CJ in Maitland v R; Macdonald v R,^[42] to the effect that where the offence of misconduct in public office is alleged, the line that distinguishes administrative fault from criminal liability must be clearly drawn. Ms Francis submitted that, as a consequence of the way the Crown has conducted its case in this trial, that line has not and cannot be drawn.
42. (2019) 99 NSWLR 376; [2019] NSWCCA 32 at [88].

Finally, Ms Francis submitted that even were I satisfied that the inclusionary rule in s 87(1)(c) is available as a matter of law, none of the previous representations by either or both of Moses Obeid or Mr Macdonald in furtherance of the conspiracy alleged (that is, what are understood under the common law rule as the acts or declarations by a conspirator committed in furtherance of the conspiracy) can elevate the independent evidence of Edward Obeid’s participation to proof of that fact beyond reasonable doubt where the conduct of both Moses Obeid and Mr Macdonald postdates any conduct of Edward Obeid which might constitute independent evidence of his participation.
Ms Francis developed that submission by advancing the argument that since there is no evidence that Edward Obeid knew that Mr Macdonald was providing the information the subject of the fourth, seventh and eighth acts of misconduct,^[2161] or any evidence that he knew that Moses Obeid received that information, even if those acts are properly described as acts in furtherance of the conspiracy and admissible against each of Moses Obeid and Mr Macdonald as evidence of the existence of the conspiracy and their participation in it, those same acts cannot provide any evidence of Edward Obeid’s complicity when those specific acts were beyond the contemplation of all of the parties at the time the agreement was forged.
2161. Ms Francis also referred to the confidential information the subject of the sixth and ninth acts of misconduct which I ignore since I am not satisfied those acts of misconduct are made out on the evidence.
I did not regard that analysis as a precondition to the admission of the “representations” made by each of Moses Obeid and Mr Macdonald (a concept, as Simpson AJA identified it, of the broadest application under the Evidence Act) as capable of constituting an admission against Edward Obeid. What is important, however, is that I am satisfied that those representations were made in furtherance of advancing or achieving the object of the conspiracy (the common purpose) so as to attract the operation of s 87(1)(c) in this case.
Again as noted by Simpson AJA in R v Dolding,^[2162] the concept of what might constitute acts or statements made in furtherance of the common purpose in s 87(1)(c) is informed by the operation of the co-conspirators rule stated distinctly in Ahern v The Queen,^[2163] at 94-95, as:

…when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: … thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in the partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime” (internal citation omitted).
2162. [2018] NSWCCA 127.
2163. (1988) 165 CLR 87; [1988] HCA 39.

In Landini v State of NSW^[2164] (also referred to by Simpson AJA in Dolding) Hall J noted the fourth precondition to the operation of s 87(1)(c) as follows:

(d) The phrase ‘in furtherance of’ carries with it the ordinary English Dictionary meaning encapsulated in the word ‘furtherance’, namely, the fact of being helped forwards; the action of helping forwards; advancement, aid, assistance … in the context of s 87(1)(c), it denotes an act done to advance, aid or help a common purpose whether that purpose is a lawful or not.
2164. [2007] NSWSC 259.

In the result, I am satisfied, and direct myself accordingly, that there is reasonable evidence that Edward Obeid (and Mr Macdonald and Moses Obeid) were parties to the conspiracy alleged (that is, put simply, an agreement that Mr Macdonald would commit wilful acts of misconduct in connection with the granting of an EL at Mount Penny for the improper purposes alleged) and that there is also reasonable evidence that each of Moses Obeid and Mr Macdonald made “representations” in furtherance of achieving that common objective.
The “representations” made by Mr Macdonald in furtherance of achieving the object of the conspiracy include the following:

His conduct in committing the first, second, fourth, seventh, and eighth acts of misconduct.

His conduct in communicating to either or both of Edward Obeid and Moses Obeid, on or after 6 June 2008, that a new coal release area in the area of Mount Penny was likely to be designated by the DPI and then, no later than 17 June 2008, communicating to either or both of them that the Mount Penny Coal Release Area had in fact been designated by the DPI.

His introduction of Mr Fang to Moses Obeid in order that they might discuss the prospect of a mining project.

The “representations” made by Moses Obeid in furtherance of achieving the object of the conspiracy include:

Moses Obeid’s use of the information in the form of Wiles Map 2, the subject of the fourth act of misconduct, to seek to attract Lehman Brothers as an investor or broker in a mining deal.

Moses Obeid’s receipt of the information comprising the seventh and eighth acts of misconduct from Mr Macdonald and his furnishing of that information to Mr Brook in his dealings with Monaro Mining NL.

Steps taken by Moses Obeid to secure ownership or control of Donola and Coggan Creek.

In ultimately reasoning to the conclusion that Edward Obeid’s participation in the conspiracy is proved beyond reasonable doubt (both on the basis of the evidence I have reviewed in proof of that fact and upon application of the co-conspirators rule in s 87(1)(c) of the Evidence Act), I am unable to countenance as a reasonable or rational possibility that the conspiracy would have been forged between Moses Obeid and Mr Macdonald, and progressively executed by each of them from May 2008 through to and including January 2009, so as to strategically position the Obeid family to seek to exploit the monetary value of the coal underlying Cherrydale Park and to the detriment of its appointment as a fine piece of agricultural land purchased at considerable expense by the family as a rural retreat, without Edward Obeid’s intentional participation with them in an agreement of the scope and object alleged.
I also accept the Crown’s submission that it is implausible that Mr Macdonald would make what I was satisfied was a “strong suggestion” that the DPI designate a new coal release area in the precise location where he knew that Edward Obeid, a friend and Parliamentary colleague, had recently acquired a significant rural property, without Edward Obeid’s knowledge and express approval, and without a preparedness on Edward Obeid’s part to sacrifice the beauty and amenity of the property in pursuit of the profit on its sale to a mining company.
I am also unable to countenance as a reasonable or rational possibility that the mining deal, so vigorously pursued by Moses Obeid from July 2008 (enabled by Mr Macdonald’s provision of confidential information on multiple occasions at that time), would have occurred at the pace at which it did, at the presumed expense that it entailed and with the potential commercial outcome of those arrangements that were settled, first between Voope P/L and Monaro Mining NL within the currency of the conspiracy, and then between Buffalo Resources P/L and Cascade Coal P/L after the conspiracy had been executed, without Edward Obeid being kept informed as to the progress of those arrangements as they were unfolding or, I am also prepared to infer, without with his active input and express sanction.

The Jones v Dunkel direction sought by the accused

Mr Martin sought a Jones v Dunkel^[2165] direction in relation to Mr Munnings.^[2166] Mr Neil also sought that direction.^[2167] The same direction was sought by Mr Neil in relation to:
2165. (1959) 101 CLR 298; [1959] HCA 8.
2166. T 3802.
2167. MFI 192 p 93.

Paul Obeid and Gerard Obeid, Moses Obeid’s brothers who attended various conferences with Mr Rumore.

Mr Selby, who introduced Mr Brook and Moses Obeid at the first Wentworth Hotel meeting on 3 July 2008.

Mr Fang, the Chairman of the Tianda Group and an associate of Mr Macdonald who attended a conference with Mr Rumore and Moses Obeid.

Mr Hewson, a consultant for Tianda Resources P/L who was previously Mr Macdonald’s Chief of Staff.

Witnesses who were speaking to Mr Brook in July 2008, including BBY and Tasmania Mines.

Witnesses from any of the other companies invited to express interest in the eleven coal release areas, including the “Jain Group” and “Breaksphere”.

Any of the potential investors who Mr Brook spoke to prior to September 2008.

Hemantha de Silva, Steven Dunn and Brian Gardoll, who were involved in answering enquiries about the water licences at Cherrydale Park.

Selina Rainger, Mr Macdonald’s personal assistant.

Patricia Madden, Kevin Ruming and other DPI witnesses.

Annmarie Robinson, the ICAC investigator who shared a storage locker with Ms Stockley.

Mr Lewis, the purchaser of Coggan Creek.

Ross and Rocco Triulcio, the purchasers of Donola.

Mr Kaidbay, an associate of Moses Obeid.

Mr Sassine, a chartered accountant who acted from time to time for members of the Obeid family.

Mr Poole, John and James McGuigan, Travers Duncan and other individuals associated with Cascade Coal P/L.

Unspecified individuals associated with the White Group.^[2168]
2168. MFI 192 pp 92-96.

Earlier in my deliberations to verdict, I indicated that I would deal with the direction sought by the accused in respect of those individuals when considering whether the Crown has proved its case. That approach is in accordance with Mahmood v Western Australia.^[2169]
2169. (2008) 232 CLR 397; [2008] HCA 1.
Mr Neil submitted that the Crown’s failure to call “numerous significant and important witnesses” whose evidence would have covered a “range of important topics” leaves critical gaps in the Crown case to the effect that there must be a reasonable doubt as to the guilt of the accused.^[2170]
2170. MFI 192 p 92; Mahmood v Western Australia (2008) 232 CLR 397 at [27].
In respect of those witnesses the Crown classified as “close associates” of an accused person, Mr Neil submitted that it was insufficient that the Crown merely suspected that those witnesses may be unreliable for that reason; there must be “identifiable circumstances which clearly establish” unreliability.^[2171]
2171. The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38 at 576.
Mr Neil advanced the further submission that the Crown’s reliance on s 18 of the Evidence Act in not calling either of Gerard Obeid or Paul Obeid was “misguided”, particularly in the case against Moses Obeid.
The Crown submitted that the Court would not regard it as appropriate to give a Jones v Dunkel direction because the Crown’s failure to call those witnesses does not give rise to a reasonable doubt about the guilt of the accused. In respect of those witnesses it identified as “close associates” of the Obeids, the Crown submitted that the nature of their involvement in relevant events would render their evidence unreliable. The Crown also submitted that the Cascade Coal P/L witnesses were, from their perspective, involved in “a series of legitimate arm’s length commercial transactions” and, for that reason, “their understanding and involvement is not material to determination of the offence charged”.^[2172]
2172. MFI 181 p 23.
The Crown also submitted that, in any case, the appropriate direction would be that the Court, sitting as the tribunal of fact, would not speculate as to why the witnesses had not been called, or what their evidence might have been, and to decide the case on the evidence before the Court.
I decline to make a direction either in the terms accepted by the Crown or as a Jones v Dunkel direction.
As noted by the Crown in closing submissions, Mahmood sets out the test for whether a Jones v Dunkel direction is appropriate in a criminal trial:

[W]here a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused.^[2173]
2173. Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27].

Having already found the existence of the conspiracy and the participation in it of each of the accused proved beyond reasonable doubt and having regard to all of the evidence which was probative of those facts, it is clear beyond question, to my mind, that none of the witnesses in respect of whom a Jones v Dunkel direction was sought could have given evidence which was capable of raising a reasonable doubt about the guilt of the accused.

Ultimate findings

For the avoidance of doubt, I am satisfied the Crown has proved beyond reasonable doubt that each of the accused intentionally entered in an agreement with Mr Macdonald that:

in the public office he occupied as Minister for Mineral Resources in the Executive Government of the State of New South Wales; and

in the course of or connected with that public office;

he would misconduct himself by doing acts in connection with the granting of an EL at Mount Penny for the improper purpose of benefiting Edward Obeid and/or Moses Obeid and/or members of their family and/or their associates; and, further, that

each of the accused knew and intended that by Mr Macdonald agreeing to act in that way, he would be acting wilfully, that is that he would act knowing that he was breaching the duties and obligations of impartiality and confidentiality by which he was bound as a Minister in the Executive Government of the State of New South Wales; and

that he would act in that way without reasonable excuse or justification.

I am also satisfied the Crown has proved beyond reasonable doubt that at the time the conspiracy was forged each of the accused knew that Mr Macdonald was subject to a duty of confidentiality and a duty of impartiality in the discharge of the public office he held as the Minister for Mineral Resources, and that they each knew that what he agreed that he would do in that public office would constitute a breach of either or both of those duties and obligations.
I turn now to consider whether I am also satisfied that the seriousness of that offending merits criminal punishment, as to which it is necessary for me to make an affirmative finding before a guilty verdict could be entered against each accused.

Am I satisfied of the seriousness of the offending and that it merits criminal punishment?

The Crown submitted that I would be satisfied beyond reasonable doubt that the misconduct each of the accused intended that Mr Macdonald would commit pursuant to the agreement into which they each intentionally entered has the requisite quality of seriousness having regard to the responsibilities of the Office of Minister for Mineral Resources Mr Macdonald occupied throughout the conspiracy period, his responsibilities as the holder of that Office and the importance of the public objects which that Office and its Officeholder served, including the nature and extent of the departure from those objects, such as to merit criminal punishment.^[2174]
2174. MFI 181 par 740.
In its written submissions the Crown developed that submission referable to the following factors:

a. the gravity of the breach of the duties of impartiality and confidentiality which are intrinsic to appropriate Ministerial conduct constituted a most significant departure from the public objects which the Office and the Officeholder serve;
b. the misconduct was planned and the execution of the conspiracy was protracted involving multiple acts of misconduct;
c. the Minister’s responsibility to act in the best interests of the people of NSW was completely abrograted;
d. the value of the commercial advantage that the misconduct conveyed was significant ($60 million, plus the sale of Cherrydale Park, Donola and Coggan Creek at a significant profit - albeit incompletely realised); and
e. the effect is to undermine the importance of the public objects of Ministerial Office and to bring the Office into disrepute.^[2175]
2175. MFI 181 pp 167-168.

I regard that submission, in part at least, as an overstatement of what is available to me to inform the qualitative assessment which it is for me to undertake at this stage of my deliberations to verdict, where I am satisfied the conspiracy is proved beyond reasonable doubt and where I am satisfied, also beyond reasonable doubt, that each of the accused intentionally participated in that conspiracy.
In one part of its closing submissions the Crown appeared to accept that, having regard to the framing of the indictment, the quantitative assessment of the seriousness of the misconduct is to be undertaken referable to the misconduct which was the subject of the agreement, namely that Mr Macdonald would wilfully misconduct himself without reasonable cause or justification in breach of his Ministerial duties and obligations in connection with the granting of an EL at Mount Penny and concerning the interests of his co-conspirators and/or members of their family and/or their associates. By that submission, I take the Crown to submit that the assessment of seriousness must be made referable to acts of misconduct which were necessarily described in the indictment at a high level of generality because, while the object of the agreement was clear and unambiguous, the particular ways Mr Macdonald would misconduct himself in executing the agreement could not be presaged by the accused at the time the agreement was reached.
However, in relying on the fact that the execution of the conspiracy was protracted and involved multiple acts of misconduct (in (b) above); and in focusing on the very significant, albeit incompletely realised, value of the commercial advantage that the misconduct generated in (d) above; is to focus, in my view impermissibly, on the manner in which the conspiracy was executed and not on the scope or object of the conspiracy at the time the agreement was forged and the seriousness of the acts of misconduct which it was agreed would be committed by Mr Macdonald as Minister for Mineral Resources in wilful breach of his Ministerial obligations and duties.
Although, for the purposes of concluding my deliberations to verdict and making the requisite assessment of the seriousness of what was comprehended by the conspiracy, I do not propose to focus upon the multiple ways in which Mr Macdonald executed the agreement, that does not diminish, in any way, the gravity of the agreement which had as its object that Mr Macdonald would misconduct himself as the Minister for Mineral Resources in connection with the granting of an EL at Mount Penny for the improper purpose of advancing, promoting or securing the private interests of his co-conspirators or those associated with them. In fact, on one view, the open-ended nature of that agreement and the breadth of its scope, which I interpret as allowing for Mr Macdonald to do what he could when the opportunity presented itself as Minister for Mineral Resources in connection with the granting of an EL over land he knew was owned or controlled by his co-conspirators or those associated with them, makes what he and Edward Obeid and Moses Obeid agreed to do serious in the extreme.

As I have set out at some length in the course of my deliberations to verdict, as the Minister for Mineral Resources Mr Macdonald had significant powers under the Mining Act, the exercise of which were necessarily subject to the implied obligation that they are exercised for legitimate purposes in the public interest. As Minister for Mineral Resources he also exercised supervisory control over the DPI from whose officers and executives he took advice and to whom he gave directions in their management of coal resources in New South Wales.
It follows, without the need for further elaboration, that the scope and object of the agreement comprehended by the conspiracy constituted a gross departure from Mr Macdonald’s responsibilities as the Minister for Mineral Resources. Those responsibilities included ensuring that the exploitation of coal resources in New South Wales did not advantage one stakeholder over other potential stakeholders and that the processes designed to ensure that objective were at all times transparent and the highest standards of probity strictly adhered to.
By agreeing to act in wilful breach of his Ministerial duties and obligations in connection with granting of an EL at Mount Penny for the improper purpose of conferring an advantage on a cohort of private people, including the co-conspirators themselves, self-evidently denigrates the public objects which the Office of the Minister for Mineral Resources is designed to serve and the objects which Mr Macdonald was obliged to serve in the public interest.
It is fundamental to our system of government that Ministers who occupy office as Members of the Executive Government are entrusted with powers, duties and responsibilities exclusively for the public benefit. That is not simply an arcane feature of the Westminster system as we have inherited it. The people of New South Wales are entitled to expect that, in the Office of a Minister in the Executive Government of New South Wales, consistent with the oath or affirmation that their elected representatives take when admitted to that Office, that he or she will act as a Minister of the Crown at all times conscientiously and honestly in the public interest. The very solemnity of that promise recognises that the exercise of Ministerial powers, duties and responsibilities in the public interest will be rendered nugatory if a Minister is motivated by personal interests or, as is the case here, where Mr Macdonald, in his capacity as Minister for Mineral Resources, agreed with another member of Parliament and a member of that person’s family that he would deliberately breach his duties and obligations to advantage, favour or promote their personal financial interests.
Counsel for the accused advanced no submissions to how the requisite assessment of seriousness might be made or whether the seriousness of the misconduct which I might find they each intended that Mr Macdonald commit merited criminal punishment.
In all the circumstances, and in concluding my deliberations to verdict, I am satisfied beyond reasonable doubt that the misconduct each of the accused intended that Mr Macdonald would commit pursuant to the agreement into which they each intentionally entered as framed in the indictment, has the requisite quality of seriousness such as to merit criminal punishment for each of them.

Verdicts

On the charge of conspiracy to commit misconduct in public office upon which each of the accused was arraigned on 12 February 2020, I find each of the accused guilty.
I direct that a conviction against each of them be entered.

**********

Annexure 1 - Dramatis Personae (502812, pdf)

Annexure 1 - Dramatis Personae (6110892, rtf)

Endnotes

ventures” Exhibit AV(2) p 15.11 of 40.

Decision last updated: 19 July 2021

Medium Neutral Citation:	R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858
Hearing dates:	12 February – 6 April 2020; 31 August – 26 November 2020; 1 – 17 February 2021
Decision date:	19 July 2021
Jurisdiction:	Common Law
Before:	Fullerton J
Decision:	Verdict of guilty entered against each accused.
Catchwords:	CRIME — conspiracy to commit the common law offence of wilful misconduct in public office — elements of the offence — whether the indictment disclosed an offence known to law — joint trial of three co-accused —accused Macdonald former Minister for Mineral Resources in the Executive Government of the State of New South Wales — scope and content of duties and obligations of confidentiality and impartiality owed by a Minister in the Executive Government of the State of New South Wales — eight acts of wilful misconduct particularised as acts by accused Macdonald in furtherance of the conspiracy — overt acts of accused Edward Obeid and Moses Obeid as acts in furtherance of the conspiracy — circumstantial evidence case — Shepherd direction — consciousness of guilt lies — application of co-conspirators rule in s 87(1)(c) of the Evidence Act 1995 (NSW)
Legislation Cited:	Coal Mining Act 1973 (NSW) Constitution Act 1902 (NSW) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Evidence (Audio and Audio Visual Links) Act 1998 (NSW) Freedom of Information Act 1989 (NSW) (repealed) Freedom of Information Act 1982 (Cth) Independent Commission Against Corruption Act 1988 (NSW) Migration Act 1958 (Cth) Mining Act 1973 (NSW) Mining Act 1992 (NSW)
Cases Cited:	Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 Aston v R (1987) 26 A Crim R 128 Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 Attorney-General (UK) v Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86 Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794 Banque Commerciale SA (EnLiqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 Bennett v R (1998) 144 FLR 311 Blackstock v R [2013] NSWCCA 172 Browne v Dunn (1893) 6 R 67 (HL) Coco v AN Clark (Engineers) Ltd [1969] RPC 41 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Elomar v R [2014] NSWCCA 303 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19 Faulkner v Upper Boddington Overseers (1857) 3 CB(NS) 412 Fennell v The Queen [2019] HCA 37 Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Landini v State of NSW [2007] NSWSC 259 Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 Mulcahy v The Queen (1868) LR 3 HL 306 Nye v State of New South Wales (2002) 134 A Crim R 245; [2002] NSWSC 1268 Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281; [2010] FCAFC 21 Peacock v The King (1911) 13 CLR 619; [1911] HCA 66 Pereira v DPP (1989) 82 ALR 217; [1988] HCA 57 Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 Plus One International Pty Ltd v Ching (No 3) [2020] NSWSC 1598 Quaid v R (2011) 210 A Crim R 374; [2011] WASCA 141 R vAnderson [1986] AC 27 R v Barbouttis (1995) 37 NSWLR 256 R v Clout (1995) 41 NSWLR 312 R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 R v Dytham [1979] QB 722 R v Freeman (1985) 3 NSWLR 303 R v Ghosh [1982] EWCA Crim 2; [1982] QB 1053 R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 1) [2019] NSWSC 322 R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 2) [2019] NSWSC 775 R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 3) [2019] NSWSC 898 R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286 R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 5) [2019] NSWSC 1489 R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 9) [2019] NSWSC 1785 R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 12) [2020] NSWSC 1946 R v Macdonald; R v Edward Obeid: R v Moses Obeid (No 13) [2020] NSWSC 1947 R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 14) [2020] NSWSC 1948 R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 15) [2020] NSWSC 1949 R v Macraild (Court of Criminal Appeal (NSW), 18 December 1997, unrep) R v McNamara (No 1) (1981) 56 CCC (2d) 193 R v Mills (1963) 47 Cr App R 49 R v Mok (1987) 27 A Crim R 438 R v O’Brien (1974) 59 Cr App R 222 R v Porter [1910] 1 KB 369 R v Quach (2010) 27 VR 310; [2010] VSCA 106 R v RK and LK (2008) 73 NSWLR 80; [2008] NSWCCA 338 R v Schipanski (1989) 17 NSWLR 618 R v Trudgeon (1988) 39 A Crim R 252 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Shum Kwok Sher v HKSAR [2002] 3 HKC 117; (2002) 5 HKCFAR 381 Standen v R (2015) 253 A Crim R 301; [2015] NSWCCA 211 The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39; [1980] HCA 44 The King v Boston (1923) 33 CLR 386; [1923] HCA 59 The Queen vApostilides (1984) 154 CLR 563; [1984] HCA 38 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v LK; The Queen v RK (2010) 241 CLR 177; [2010] HCA 17 Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 Trudgeon v R (1988) 39 A Crim R 252 Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 Xu v Minister For Immigration and Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741
Category:	Principal judgment
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) A 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