R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 8)

[2019] NSWSC 1915

Supreme Court

New South Wales

Medium Neutral Citation:

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 8) [2019] NSWSC 1915

Hearing dates:

16 September 2019

Date of orders:

18 September 2019

Decision date:

23 September 2019

Jurisdiction:

Common Law

Before:

Fullerton J

Decision:

1. The notices of motion filed by Moses Obeid on 6 September 2019 and Edward Obeid on 10 September 2019 (and joined by Ian Macdonald on 16 September 2019) seeking a temporary stay of the pending joint trial are granted.

2. The trial date of 30 September 2019 is vacated.

3. The trial is relisted to commence on 3 February 2020.

Catchwords:

PRACTICE AND PROCEDURE – Application for temporary stay of proceedings

Legislation Cited:

Election Funding, Expenditure and Disclosures Act 1981 (NSW)

Cases Cited:

Dietrich v The Queen (1992) 177 CLR 293; [1992] HCA 57

Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20

Hughes v R [2015] NSWCCA 330

John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324

Maitland v R; Macdonald v R [2019] NSWCCA 32

R v Moses Obeid; R v Macdonald; R v Edward Obeid (No 7), 9 August 2019

R (Cth) v Elomar (No 12) [2009] NSWSC 448

R (Cth) v Petroulias (No 19) [2007] NSWSC 536

Re K [2002] NSWCCA 374

Category:

Procedural rulings

Parties:

The Crown
Ian Michael Macdonald (Accused)
Edward Moses Obeid (Accused)
Moses Edward Obeid (Accused)

Representation:

Counsel:
S Callan (Crown)
J Martin (Accused Macdonald)
M Smith (Accused Edward Obeid)
MJ Neil QC / M Kalyk (Accused Moses Obeid)

Solicitors:
Solicitor for Public Prosecutions (Crown)
In person (Accused Macdonald)
M Bowe (Accused Edward Obeid)
Murphy’s Lawyers Inc (Accused Moses Obeid)

File Number(s):

2015/212910; 2015/214251; 2015/212851

Judgment

1. HER HONOUR: By notices of motion filed on 6 September 2019 and 10 September 2019, respectively, each of Moses and Edward Obeid apply for a temporary stay of their trial, due to commence in this Court on 30 September 2019, until 3 February 2020.

2. At the hearing of the motion on 16 September 2019, Mr Macdonald joined in the application mounted by each of his co-accused.

3. The basis for each application is the alleged unacceptable risk that the accused’s right to a fair trial will be prejudiced because of intense pre-trial publicity (see Re K [2002] NSWCCA 374 at [9]-[10]). The grant of a temporary stay was opposed by the Crown.

The relevant legal principles

4. The principles to be applied in resolving whether or not a temporary stay should be granted on the basis of pre-trial publicity are well settled. They reflect the fundamental precept to our system of criminal justice that no one should be convicted of a criminal offence without a fair hearing according to law (Dietrich v The Queen (1992) 177 CLR 293; [1992] HCA 57). The same principles also reflect the now well established body of judicial opinion that when undertaking the role of a juror in a criminal trial, each member of the jury has the capacity, when giving consideration to the evidence adduced in the trial in proof of guilt, to eschew the potential prejudicial impact of “gossip, rumour, news and opinion”, whether about the accused or the subject matter of the trial (see John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at 366 as cited in R (Cth) v Elomar (No 12) [2009] NSWSC 448.

5. The law recognises however that where “the intensity, proximity and nature of the media coverage” of events in which the accused is named, referred to or implicated gives rise to an appreciable risk that an accused’s right to a fair trial is prejudiced, the occasion for the exercise of a discretion to grant a temporary stay is enlivened. It is then a question of fact as to whether, in the particular circumstances, a risk of that kind is established, and, if so, whether it is a risk that is not able to be adequately addressed by direction (see R (Cth) v Petroulias (No 19) [2007] NSWSC 536 at [40] per Johnson J).

The history of the events preceding the pending trial

6. The accused are to stand trial on an indictment in which they are jointly charged with a common law conspiracy which alleges that between 1 September 2007 and about 31 January 2009 they each agreed that Mr Macdonald would wilfully misconduct himself as a Minister of the Government of New South Wales in connection with the granting of a coal exploration licence at Mount Penny for the improper purpose of benefiting Edward Obeid and Moses Obeid and/or their family members or associates.

7. The Crown has furnished to each of the accused particulars of their overt acts alleged to be in furtherance of the conspiracy alleged. Insofar as concerns the particulars of the overt acts that relate to Mr Macdonald, the Crown identifies and particularises eight separate instances of his improper conduct between approximately 9 May 2008 and 13 January 2009, each of which is alleged to have been an act done in breach of his duty of impartiality and/or his duty of confidentiality under various iterations of the Ministerial Code of Conduct, and each of which the Crown alleges Mr Macdonald would not have engaged in “but for” the improper purpose of advancing the interests of Edward Obeid, Moses Obeid and their family members and/or associates (Maitland v R; Macdonald v R [2019] NSWCCA 32).

8. The accused were charged with the conspiracy, as particularised, by the issue of Court Attendance Notices in July 2015 following a referral from the Independent Commission Against Corruption (“ICAC”) to the Office of the Director of Public Prosecutions (NSW) consequent upon the publication in July 2013 of a Report by the Honourable David Ipp AO QC, Commissioner, entitled “Investigation into the Conduct of Ian Macdonald, Edward Obeid Senior, Moses Obeid and Others” (an investigation into what was described in the report as the “Operation Jasper segment”). The publication of the Report followed lengthy public hearings between 2011 and 2013.

9. Although not the subject of any evidence adduced on the stay applications, I am prepared to accept that there was intense media scrutiny of the events the subject of the ICAC public hearings in 2011 and 2013, and that both Edward Obeid and Mr Macdonald were the subject of adverse media attention at that time. Again for the purposes of this application, I also accept that there was intense media coverage of the trial of Edward Obeid which culminated in his conviction in 2015 on a charge of wilful misconduct in public office and at the time of the imposition of the sentence of imprisonment which he is currently serving in December 2016. I also accept that the trial of Mr Macdonald in 2017 which culminated in his conviction and sentence on a charge of wilful misconduct in public office was also the subject of intense media coverage. In February 2019, Mr Macdonald’s conviction and sentence were quashed by the Court of Criminal Appeal which was also the subject of some media attention. Importantly, while Mr Macdonald’s retrial is listed to be heard in this Court in April 2020, he is not currently convicted of any criminal offence.

10. In light of that history, on 8 August 2019, when I published judgment refusing an application for a temporary stay by Edward Obeid and Mr Macdonald on the grounds of ill health (R v Moses Obeid; R v Macdonald; R v Edward Obeid (No 7), 9 August 2019), it was the agreed position of all the parties that where the subject matter of the trial or the identity an accused has been the subject of pre-trial publicity, in accordance with the customary admonition from a trial judge, prospective jurors would need to be informed that if, because of any settled views or opinions about the accused or the subject matter of the trial (whether inspired by publicity or otherwise), they consider that they would be unable (or might be unable) to bring to their consideration of the evidence to be adduced at trial, the absolute impartiality required of them as jurors and “to deliver a verdict in accordance with the evidence” they would be excused from further participation in the empanelling process.

11. The extent to which it might be necessary to make any direct reference to the public hearings of ICAC between 2011 and 2013, or to the fact that either or both of Mr Macdonald and Edward Obeid had been the subject of criminal proceedings in 2016 and 2017 in the empanelling process and, if mention were to be made of those matters, the extent to which I would need to refer to that material in any detail, had not been settled at the time the notices of motion were filed. These matters were due to be discussed when the trial was called over on 20 September 2019.

The currency of proceedings before ICAC

12. In the interim, a public inquiry by ICAC into the conduct of various officials and senior members of the NSW Branch of the Australian Labor Party in 2015 has commenced. By email of 8 August 2019, the solicitors for Moses Obeid contacted ICAC indicating their understanding, from what were described as “media reports”, that public hearings into “allegations concerning political donations to the New South Wales branch of the Australian Labor Party by members of Chinese Friends of Labor and others” was due to commence on 26 August 2019. By return email the solicitors were informed that the scope and purpose of the investigation had been publicly announced, and that the media release could be accessed on the ICAC website.

13. On 26 August 2019, ICAC published on its website a written opening statement by Mr Robertson, Counsel Assisting the Commissioner, and a transcript of Counsel’s opening remarks on the commencement of the public inquiry before the Honourable Peter Hall QC, Chief Commissioner, on 26 August 2019.

14. In his opening remarks, Commissioner Hall said:

The public inquiry which proceeds today and over the next few weeks is part of an investigation by the Commission into conduct under New South Wales electoral law, in particular under the Election Funding, Expenditure and Disclosure Act of 1981, following upon a referral to this Commission by the Electoral Commission. The public inquiry is being conducted for the purposes of an investigation on an allegation or complaint as to the following nature. Whether from January 2015 officials of the NSW Branch of the Australian Labor Party, members of Chinese Friends of Labor, political donors and others have entered into or carried out a scheme to circumvent prohibitions or requirements under part 6 of the Election Funding, Expenditure and Disclosure Act 1981 relating to political donations. The opening address of Counsel Assisting the Commission will provide further information concerning the matters under investigation.

The general scope and purpose of the public inquiry accordingly is to gather evidence relevant to the allegation being investigated for the purposes of an investigation under section 13A of the Independent Commission Against Corruption Act 1988.

15. There was no reference in the balance of either the Commissioner’s opening remarks, or in the expanded opening statement of Counsel Assisting where he referred to the scope and purpose of the inquiry, to any of the accused either directly, or by association or suggestion. Neither was there are any reference to the subject matter of the ICAC inquiry over which the Honourable David Ipp AO QC, Commissioner, presided between 2011 and 2013. That is hardly surprising given that the scope and purpose of the respective ICAC inquiries bear no relationship to each other. Neither do I understand there has been any reference, directly or indirectly, including by association or suggestion, to any of the accused in the evidence that has been adduced in the ICAC public hearings to date.

16. The fact that the current ICAC inquiry is focusing on the conduct of certain members and executive officials of the NSW Branch of the Australian Labor Party in 2015, and, in particular, whether they acted in compliance with the law insofar as it concerns political donations, and the fact that each of Edward Obeid and Mr Macdonald were members of the Labor Party when it is alleged that they conspired with each other and with Moses Obeid to have Mr Macdonald misconduct himself in public office (namely between 2007 and 2009), would not have laid a sufficient factual foundation for the bringing of an application for a temporary stay of their trial, even less for the granting of a stay. The accused do not contend otherwise.

17. Although, on behalf of Moses Obeid, Mr Neil QC submitted that the current ICAC inquiry contains “obvious connections” to the pending trial by reason, inter alia, that it was preceded by another highly public ICAC inquiry and because of the intention of the Crown to adduce evidence of the operation of political factions within NSW Labor in the joint trial, including a lunch meeting at a Chinese restaurant attended by factional leaders, neither that fact nor the coincidence in timing between the current and continuing ICAC inquiry before Commissioner Hall and the commencement of the accused’s trial, would warrant the granting of the temporary stay.

The pre-trial publicity

18. Mr Neil QC furnished detailed written submissions in support of the application for a temporary stay of the trial of Moses Obeid. Mr Smith of counsel, who appeared for Edward Obeid, also provided written submissions. Both counsel advanced oral submissions in support of their written submissions giving emphasis to the risk to a fair trial for their respective clients based upon the affidavits affirmed by Bryan Wrench, solicitor, on 6 and 13 September 2019 in support of the notice of motion filed by Moses Obeid on 6 September 2019, and the annexures to those affidavits.

19. Mr Martin of counsel, who appeared for Mr Macdonald, adopted the submissions of Mr Neil and Mr Smith without significant elaboration.

20. In summary, the primary submission of the accused is that the tenor, content and intensity of journalistic coverage and commentary on the current ICAC proceedings since 29 August 2019 in each of the daily and weekend newspapers (both in print version and online) and over successive weeks, and on radio and television broadcasts on 29 August 2019, gives rise to a real risk that the fair trial of the accused which is due to commence on 30 September 2019 will be gravely prejudiced. This is said to be the case because in almost every media report, the proceedings before ICAC are said to be evidence of systemic, entrenched and institutionalised corruption within the New South Wales branch of the Australian Labor Party and where, in different ways and with different emphasis, Edward Obeid and Mr Macdonald are identified as the exemplars of that systemic corruption.

21. Mr Neil referred to what he described as a gathering volume and intensity of media coverage alleging the persistence of corrupt conduct within NSW Labor, extending back in time and including, in that connection, reference to Mr Edward Obeid and Mr Macdonald as corrupt figures within that culture. Mr Neil submitted that the sustained commentary and reportage commencing on 27 August 2019 and continuing up to and including the date of the hearing of the motions for the temporary stay are productive of a risk of undermining the accused’s right to a fair trial where corrupt conduct is the subject of the conspiracy that is charged.

22. It is necessary to set out in some detail the evidence to which Mr Neil referred in support of that submission. It is the same body of evidence upon which counsel for Edward Obeid and Mr Macdonald also relied.

23. The first publication in time appears to be a radio broadcast on 2SM on 27 August 2019 (the day after the public hearings commenced). Despite Counsel Assisting making no reference in his opening remarks to Edward Obeid or Mr Macdonald being tried and convicted of offences relating to their proven and alleged corrupt conduct as members of NSW Labor when in government, or to either of them in connection with the current ICAC hearing or to any previous ICAC inquiry, whether in the context of ICAC hearing evidence of $100,000 in cash being delivered to Labor Party’s Head Office in Sussex Street in an ALDI plastic bag or otherwise, Mr John Laws offered the following comment:

[The] NSW Labor Party faces more damaging corruption claims, in a clear sign that they’ve apparently learnt nothing from the old days of Eddie Obeid and his group of fixers …

24. Later in the same morning broadcast, Mr Laws said:

It’s taken one day of evidence at the latest hearings by the NSW corruptions [sic] watch dog to show that the state Labor party has learned absolutely bugger all from the bad old days of Eddie Obeid and Joe Tripodi …

25. The following day, on the same morning program on 2SM, Mr Laws said:

The first days of the ICAC hearing have been utterly devastating for NSW Labor and think about the timing of it all, this was playing out in the early part of 2015, Labor was still trying to shake off its links to Eddie Obeid and Joe Tripodi and Tony Kelly and Ian Macdonald and yet here we are with their Chinese Friends of Labor allegedly having a plastic ALDI shopping bag delivered to their head office containing $100,000 in cash … these people obviously learnt absolutely nothing, when anyone within the Labor movement is questioned about the Bad Old Days, the Bad Old Obeid days, they try to dismiss it as being in the past but it appears to be very much about the present doesn’t it? It’s in their DNA.

26. On the following day, 29 August 2019, The Daily Telegraph, in a two-page article on pages 5-6 headlined “From Darling to Disgrace” (referencing the dismissal of Ms Murnain as the General Secretary of NSW Labor, following her evidence before ICAC where she described taking receipt of $100,000 cash in an ALDI bag), includes what appears to be an editorial column in which the following is included:

Premier Gladys Berejiklian also weighed in yesterday and slammed Labor over the alleged corruption.

27. Ms Berejiklian is then quoted in the article as saying:

[It’s the] same old Labor ... The Labor Party, what’s been revealed in the last few days is simply shocking. Regrettably, after the Obeid/Macdonald years, we were told that the Labor Party had changed, clearly they haven’t.

28. In what appears to be a later edition of The Daily Telegraph on the same day, the Premier’s quoted remarks in the same editorial column have been edited only to include only the following:

[It’s the] same old Labor …

29. Although there was no evidence adduced from the editorial staff of The Daily Telegraph (or, for that matter, from any other media outlet or commentator on social media), it is reasonable to infer that because media interests were well aware of the pending joint trial of Edward Obeid and Mr Macdonald given the currency of non-publication orders made by me on 16 July 2019 in the context of the pre-trial hearings that extended through to 8 August 2019, including the refusal of an earlier application by Edward Obeid and Mr Macdonald for a temporary stay on health grounds (R v Moses Obeid; R v Macdonald; R v Edward Obeid (No 7), 9 August 2019), the Editor of The Daily Telegraph thought better of quoting the Premier’s remarks in full. I note, in that regard, that up until the latest public furore engulfing NSW Labor in the ICAC public hearings, there had been no breach of those orders by any news outlet and, to my understanding, no commentary at all of the pending trial of Edward Obeid and Mr Macdonald on any social media platform.

30. The context in which the quoted remarks are attributed to the Premier is not revealed in the article in The Daily Telegraph. It does appear, however, that they were re-published in the afternoon broadcast of 9 News on 29 August 2019, albeit in a truncated form, where the Premier was reported to have said:

Regrettably after the Obeid, Macdonald years we were told the Labor Party had changed but clearly they haven’t.

31. On 30 August 2019, in an article published online by the Australian Financial Review, National Affairs Correspondent, Angus Grigg, also in the context of his summary of the circumstances in April 2014 in which the $100,000 cash donation was made, the revelations Ms Murnain made when examined by Counsel Assisting about receipt of that donation, including remembering “stepping back and realising what this meant”, Mr Grigg commented that, in his view, “this” meant that:

Labor was in breach of NSW donation laws, and if the scandal became public it would be difficult for the party to argue it had turned the page on the days of Eddie Obeid and Ian Macdonald, both former ministers who had been jailed for corruption.

32. In a twitter feed on that same day in which a number of contributors posted commentary on ICAC, Kate McClymont, journalist, tweeted in characters above a photo of Edward Obeid:

A timely reminder of bags of cash…Dirty deals done cheap.

33. Ms McClymont included in that tweet a link to a previous article she wrote for The Sydney Morning Herald dated 6 July 2013 (again where Mr Edward Obeid is photographed). The article included the following:

The picture for Labor for the six months since November last year has been anything but pretty. The Independent Commission Against Corruption was a daily horror for Labor, with allegations that Obeid secured a $60 million windfall for his family from a government coal contract presided over by resource minister Ian Macdonald.

34. The article continues with various adverse references to Mr Edward Obeid “controlling who would be premier” and his diary entries “reflect[ing] an astonishing parade of politicians, developers, departmental chiefs, union bosses, business figures and colourful Sydney characters who were shown into the inner sanctum of room 1122”. Ms McClymont also quoted evidence given by Frank Sartor to the ICAC inquiry to the effect that Mr Obeid had offered a sweetener of $1,000,000 to be deposited into his superannuation account to persuade him to run for NSW Parliament. Ms McClymont concluded the article with the following remark:

While Obeid has been dispatched to the political wilderness and expelled from the party, the architect of the era of skulduggery is still influential.

35. In setting out a chronology of media reports of the current ICAC hearing, I interpolate to note that on 14 September 2019, in The Good Weekend (an insert to the Saturday edition of The Sydney Morning Herald) an edited extract from Ms McClymont’s recently published book entitled “Dead Man Walking” was published (the “dead man” is a reference to Michael McGurk who was murdered by Ron Medich - his former business partner - by a contract shooting on 3 September 2009). In the extract from the book, Ms McClymont speaks of a meeting with Mr McGurk who had claimed to have in his possession a tape recording of “bribing [allegedly by Mr Medich] politicians, government officials and councillors to smooth the way for developments”. She said that Mr McGurk:

Promised that when the time was right, he would provide us with a copy of the recording … In the meantime, he gave us a list of names of business and political figures and suspect deals that were worth looking at. I jotted down notes. He specified several NSW Labor politicans and one federal politican. Among the state Labor politicians he mentioned was Eddie Obeid. (Several years later, Obeid was declared corrupt and, at the time of writing, the former Labor powerbroker is in prison for misconduct in public office.)

36. That The Sydney Morning Herald would publish that extract from Ms McClymont’s book with a criminal trial in which Edward Obeid is charged with a conspiracy that Mr Macdonald should misconduct himself in public office due to commence, and where it must have been known that Edward Obeid would be appearing at his trial from custody, is, at the very least, grossly irresponsible.

37. In the Saturday edition of The Daily Telegraph, dated 31 August 2019, in a two-page article on pages 4-5 headlined “You’ve got it all Wong”, the former NSW Labor leader Mr Luke Foley and the former Federal Labor Party leader Mr Bill Shorten were pictured at a roundtable at a fundraising dinner in 2015 where seats at the head table were reportedly secured for $100,000. Of the other four people at the table, two were identified by the journalist by name: Ernest Wong, an Upper House Labor Member of Parliament, and Huang Xiangmo, identified as a “billionaire property developer who was exiled from Australia by ASIO after it raised concerns about his close links to Communist China”. The reporter went on to say, “ICAC has heard that an ALDI bag with $100,000 was left at Labor HQ after Huang visited”.

38. The article reports at length the cross-examination of Mr Ernest Wong by Counsel Assisting the Commission concerning the fundraising dinner and the circumstances in which payment was or might have been made to secure a seat at the head table. In a column on the same pages, under a heading “Labor: a big party needing a Big House”, Tim Blair identified each of five New South Wales correctional centres as being a suitable location to move “the ALP [from its] Sussex St headquarters”. Of the Long Bay Correctional Complex, Mr Blair said:

[it is] rich in Labor tradition following extended occupancies by various senior ALP and union identities, Long Bay is already as familiar to many Labor identities as Sussex St itself.

39. In the SaturdayXtra insert to the same edition of The Daily Telegraph, above an editorial written by Sharri Markson about alleged links between NSW Labor and Chinese Friends of Labor (referring again to the fundraising dinner the subject of the earlier two-page spread), is a cartoon by Warren Brown which depicts a man walking into a decaying stone building which is simultaneously described as “NSW Labor HQ” and “The Obeid Building”. It is unclear whether this is intended to depict “Sussex Street” or a prison; either way, the import is unmistakable.

40. In The Inquirer insert in The Weekend Australian of 31 August 2019, both Brad Norrington (the Associate Editor) and Troy Bramston (a senior writer), in two separate articles headed “Labor’s bags of woe” and “ALP Right condemns itself to a seedy demise” respectively, comment as follows:

After quoting Jodi McKay, NSW Labor Opposition Leader, who queried how NSW Labor apparently kept being caught up in corruption scandal of one kind or another, Mr Norrington commented:

As well she might. It appears the NSW Labor organisation learnt nothing and refused to change its ways after a 2014 ICAC investigation that uncovered thousands of illegal donations to the NSW Liberal Party … If that spectacle was not warning enough for NSW Labor … then there are the conspiracy charges against Eddie Obeid.

Mr Bramston commented:

NSW Labor and the dominant NSW Labor Right faction are in crisis. The state party and the faction have become a byword for immorality and corruption … In recent years, two state party leaders left after being marred in controversy, two party secretaries were booted out because of scandals [and] several State MPs have been found to be corrupt and jailed …

41. Unlike Mr Norrington (who must be taken to be making a direct reference to Edward Obeid’s pending trial since he has not been otherwise charged with or convicted of a “conspiracy”), Mr Bramston does not name Edward Obeid or Mr Macdonald as amongst the “several State MPs [that] have been found to be corrupt and jailed”.

42. On Saturday 31 August 2019, journalists Michael McGowan and Christopher Knaus in an online article in The Guardian headed “Red hot angry: the fallout from yet another NSW Labor scandal at Icac [sic]”, after quoting Jodi McKay’s description of NSW Labor as in a “terrible state”, ask rhetorically, “But how do you fix a branch with which sleaze and scandal is basically synonymous?”. They go on to say:

Former leader Luke Foley resigned in 2018 over allegations he inappropriately touched a female reporter at a boozy Christmas function. Murnain’s predecessor as NSW Labor general secretary Jamie Clements, quit in 2016 after facing mounting pressure over harassment allegations. There’s been Eddie Obeid, Ian MacDonald [sic] and Joe Tripodi

43. Peta Credlin, in an online publication of The Daily Telegraph also dated 31 August 2019, under the banner heading “Labor’s rot goes to the party’s core” commented:

It’s all very well for the current NSW Labor leader Jodi McKay to tut-tut about what’s happened, along with the party’s former leader, “I’m not Eddie Obeid’s girl”, Senator Kristina Keneally, who said on Friday that the answer is just to move Labor’s headquarters out of Sussex Street to fix the rot.

44. In the week commencing Monday 2 September 2019, the commentary on the perceived current fate of NSW Labor continued in the print media, however by this time in the context of a wider commentary on the need for a Federal ICAC with investigative powers following the announcement by Federal Labor leader Anthony Albanese that a comprehensive review of the NSW branch of the Labor Party will be undertaken at the conclusion of the current ICAC inquiry.

45. In an article in The Daily Telegraph on 6 September 2019 entitled “Following the Money: Revelations in ICAC about NSW Labor come as no surprise when you consider the culture of a party that has still not dealt with its tainted donations from Ron Medich”, Anna Caldwell referred to the former State Labor Party leader Mr Foley’s undertaking in April 2018 to return tainted donations from Mr Medich on his conviction for Mr McGurk’s murder and said that:

Foley was smart enough to realise Labor was trying to shake off the ghosts of Eddie Obeid and Ian Macdonald and every misstep on trust would matter.

46. In The Saturday Paper of 7 September 2019, Mike Seccombe, in writing an opinion piece about the various efforts by state agencies to deal with political corruption over decades, was critical of the failure on the part of the Federal Government to initiate legislation to provide for a Federal Integrity Commission, and critical of the model currently under consideration by the Government which the Shadow Attorney-General, Mr Dreyfus, was quoted as describing as “the integrity commission you design when you don’t want an integrity commission”. Mr Seccombe, referencing Mr Dreyfus’ views, said as follows:

Nor, as Dreyfus points out, would ICAC have, had it been working under the Porter model, investigated the activities of the corrupt former NSW Labor powerbroker Eddie Obeid, for that began with an anonymous public tipoff.

47. The following day, 8 September 2019, on page 5 of The Sunday Telegraph, the Prime Minister, Mr Morrison, in referring to the $100,000 cash in the ALDI bag, is reported as describing NSW Labor as “rotting from the centre”.

48. On 11 September 2019, in an article at page 6 of The Australian headed “Taylor corruption claims backfire on Labor”, Richard Ferguson reported on an exchange in the House of Representatives in question time after the opposition tried to move a motion calling on the Prime Minister to “sack” Energy Minister Mr Taylor over alleged conflicts of interest as follows:

Mr Morrison shut down the move with his post-election parliamentary majority and used the opportunity to skewer Labor over corruption allegations its NSW branch has faced at the Independent Commission Against Corruption.

The Prime Minister linked the unfolding scandal back to the Opposition Leader, a former NSW Labor assistant secretary. “The Liberal Party and the National Party will not be lectured by someone who used to work in the NSW branch of the Labor Party.” he said. He had a desk in the office, Mr Speaker, in the Sussex Street headquarters of a party that stinks with corruption, where they get money in plastic bags and count it out on the table.

“With the number of Labor Party members from the NSW division who used to serve in Senator Kristina Kenneally’s former (NSW) government in jail [sic], you could establish a branch in Silverwater prison of the Labor Party”.

49. Mr Ferguson went on to explain:

Senator Kenneally – now federal Labor’s home affairs spokeswoman – was NSW premier and leader of the NSW Labor Party when the now-jailed ALP factional warlord Eddie Obeid was at the height of his powers.

50. On a different note, but no less significant given the pending trial, as recently as 20 September 2019, in an article written by Matthew Benns and Campbell Gellie in The Daily Telegraph, the NSW Planning Minister Rob Stokes is quoted as saying (in the context of an article on coal mining approvals by the Independent Planning Commission):

Political interference in mining applications landed former Labor ministers in jail [sic], so we will not interfere in what is rightly now an independent process.

Resolution

51. I am satisfied that in light of the multiple and repeated references to Edward Obeid and Mr Macdonald (by name) as “jailed former ministers” (as to which by way of example see above at [35]) and, by necessary inference, their identification as the “corrupt former members of the Labor party who have been jailed” (as to which by way of example see above at [50]), together with a range of other prejudicial epithets in the context of the criminal proceedings in which both Edward Obeid and Mr Macdonald have been charged and are due to be tried (including a direct reference by Ms McClymont to Edward Obeid as the “architect of [Labor Party] skulduggery” - see above at [34]), a proper basis has been made out to defer the trial of the accused until February 2020. I am satisfied that a temporary stay of five months will create a sufficient measure of distance from the currency and intensity of the media attention on the current ICAC public hearings, as it will from the determination of the media to create a link between the alleged corrupt conduct of persons involved in those proceedings and Edward Obeid and Mr Macdonald, and Moses Obeid by association.

52. The accused place particular reliance upon the articles extracted at [27] and [48]-[49] above where senior members of the Executive of both the New South Wales and the Federal governments (in each case Ms Berejiklian, the Premier of New South Wales and Mr Morrison, the Prime Minister of Australia) are said, in remarks attributed to them, to have drawn an alliance between the question whether there was in January 2015 a scheme by members of the NSW Labor Party Executive to circumvent prohibitions or requirements under Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) relating to political donations - the focus of the current and continuing inquiry by ICAC - and the criminal conduct for which Edward Obeid is currently serving a sentence of imprisonment and the allegations of criminal conduct the subject of Mr Macdonald’s trial in 2017.

53. While I accept neither Ms Berejiklian nor Mr Morrison make any direct reference to the pending criminal trial of Edward Obeid and Mr Macdonald, the risk that a jury will be influenced by their views is palpable. In my view, it is a risk against which it would be extremely difficult to formulate an appropriate admonition to the jury panel without running the risk of drawing attention to those remarks and their authorship.

54. In reaching that conclusion, I am minded of what was discussed in Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 (cited in Hughes v R [2015] NSWCCA 330) where, at [26] the following was noted:

… the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza:

"Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof."

55. Neither the Premier of NSW nor the Prime Minister of Australia is properly to be regarded as simply a politician whose views might not be deferred to. To the contrary, their views might be thought to carry weight even if expressed in the context of party political rhetoric.

56. The context of the remarks attributed to Ms Berejiklian in the article and televised news report of 29 August 2019 is unclear and unattributed. In contrast, the Prime Minister’s remarks 13 days later set out above were reported by The Australian, and identified by the journalist who wrote the article, as having been made by the Prime Minister in question time in the House of Representatives.

57. Were I persuaded (and I am not) that the Prime Minister of Australia or the Premier of New South Wales made the remarks attributed to them aware that the criminal trial of Edward Obeid and Mr Macdonald was pending on a charge that alleged an agreement between them that Mr Macdonald would wilfully misconduct himself in public office with the intention of benefiting of Edward Obeid and his family (including in that connection his son Moses Obeid), that conduct would be, at the very least, reprehensible given the obvious potential of those remarks to undermine the right of the accused to a fair trial according to law.

58. The fact remains, however regrettable it is, that the remarks of both the Premier and the Prime Minister were published within a few weeks of the trial of the accused, and that they are in the public domain. In circumstances where the media have shown themselves to be unrelenting in their apparent determination to forge a link between the evidence that has been adduced in current ICAC public hearings and a wide ranging allegation to the effect that NSW Labor is and has long been corrupt, by directly referencing the proven and alleged criminal conduct of Messrs Edward Obeid and Ian Macdonald, there is, in my view, a very real risk that members of the jury panel will retain a memory of those allegations when they are assembled for the purposes of empanelment on 30 September 2019, a memory which it is reasonable to assume will inevitably fade with the passing of time.

59. I accept that where there are cases where a criminal trial of accused of some notoriety is pending (a status which I would fairly attribute to Edward Obeid and, to a lesser extent, Mr Macdonald), some publicity of that fact might be expected (although rarely from members of the Executive) which is able to be satisfactorily managed by the trial judge without the risk of undermining the fundamental right of the accused to a fair trial. However, in the context of the journalistic frenzy that has accompanied the coverage of the recent ICAC inquiry, where almost every senior political reporter has taken the opportunity to make a reference to Edward Obeid and/or Mr Macdonald as “corrupt” or “disgraced” or “jailed” former members the Labor Party branch, and as recently as 14 September 2019 where excerpts of Ms McClymont’s book were published by The Sydney Morning Herald with emphasis given to the fact that Edward Obeid is currently in prison for corruption, in the proper exercise of discretion I am of the considered view that I could not do otherwise than to grant a temporary stay of the trial in which Edward Obeid is jointly charged with his son and Mr Macdonald. I do so despite the inevitable disruption to the administration of criminal justice in this State and the cost to the State and the community that is entailed in that decision.

55. I note that it is the Commissioner’s expectation that the public phase of the inquiry will conclude by 4 October 2019, after which submissions will be received in camera. I am informed by the Crown that the Commissioner anticipates that he will publish his report “in the new year”. While I am not able to anticipate whether there will be further publicity and/or commentary of the content of that report upon its publication, or any reforging by the press of any links to the accused, I will entertain an application for orders that might operate to protect the future integrity of the trial process.

Orders

61. The Court orders:

1. The notices of motion filed by Moses Obeid on 6 September 2019 and Edward Obeid on 10 September 2019 (and joined by Ian Macdonald on 16 September 2019) seeking a temporary stay of the pending joint trial are granted.

2. The trial date of 30 September 2019 is vacated.

3. The trial is relisted to commence on 3 February 2020.

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Decision last updated: 04 February 2021