R v Macdonald; R v Maitland (No 10 - verdict)

[2022] NSWSC 1765

Supreme Court

New South Wales

Medium Neutral Citation:

R v Macdonald; R v Maitland (No 10 – verdict) [2022] NSWSC 1765

Hearing dates:

7-9, 12, 14-15, 19-20, 21, 27-28 September 2022
1, 4-7, 10-13, 17, 20, 25 October 2022, 7 November 2022 and 9 November 2022

Date of orders:

20 December 2022

Decision date:

20 December 2022

Jurisdiction:

Common Law - Criminal

Before:

Dhanji J

Decision:

Ian Michael Macdonald is found guilty of counts 1 and 3 of wilful misconduct in public office. A conviction is to be entered accordingly.

John William Maitland is found not guilty of counts 2 and 4 of accessory before the fact to Mr Macdonald’s offences in counts 1 and 3 respectively. He is to be discharged on the indictment.

Catchwords:

CRIME – trial – judge alone – wilful misconduct in public office – reasons for verdict – re-trial – grant of consent to apply for exploration licence – grant of exploration licence – circumstantial case – Labor Party – impending retirement – Noble House meeting – successful pre-selection – issue of friendship – motivation – coal allocation guidelines – Prime Restaurant meeting – Strangers’ Dining Room meeting – Nippon Club meeting – signing at the Catalina Restaurant – failure to seek advice from relevant bodies – challenging financial environment – consciousness of guilt evidence – improper purpose – driving force – misconduct established – verdict of guilty 

CRIME – trial – judge alone – accessory before the fact to wilful misconduct in public office – mining industry – direct allocation of a commercially valuable resource sought – whether the accused intended the minister to misconduct himself in granting the exploration licence – issue of friendship – benefits of training mine – long standing commitment to health and safety – “too good to be honest” – knowledge of probity issues – strategy allegedly devised at Prime Restaurant – motives – accused’s state of mind – obligations as a director – lobbying – verdict of not guilty – acquittal

Legislation Cited:

Coal Industry Act 2001 (NSW)

Coal Mine Health and Safety Act 2002 (NSW)

Criminal Procedure Act 1986 (NSW), ss 132, 133

Evidence Act 1995 (NSW), s 69(2)

Independent Commission Against Corruption Act 1988 (NSW), s 87

Mining Act 1992 (NSW), s 13(4)

Protection of the Environment Operations Act1997 (NSW)

Cases Cited:

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32

Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44

R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281

R v Macdonald; R v Maitland(No 2) [2022] NSWSC 1208

R v Macdonald; R v Maitland (No 8) [2022] NSWSC 1421

Stephens v The Queen (2022) 96 ALJR 871; [2022] HCA 31

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Texts Cited:

New South Wales Government Gazette, No 101, 10 August 2005, at 4302.

New South Wales Government Gazette, No 182, 14 December 2007, at 9633

Category:

Principal judgment

Parties:

Rex (Crown)
Ian Michael Macdonald (Accused)
John William Maitland (Accused)

Representation:

Counsel:
P Hogan (Crown)
R Rajalingam (Macdonald)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Michael Bowe Solicitors (Macdonald)
J W Maitland (self-represented)
Ms M Cunneen SC and L Dive (amicus curiae on 4 October 2022) (Maitland)

File Number(s):

2015/59990; 2015/59940

Publication restriction:

Nil

contents

1.    The Charges - paragraph 1

2.    Some preliminary matters

2.1    The first trial - paragraph 4

2.2    Trial by judge alone - paragraph 6

2.3    Joint trial of multiple charges - paragraph 9

3.    The elements of the offences - paragraph 11

3.1    The elements – Mr Macdonald – the alleged principal offender - paragraph 12

3.2   The elements – Mr Maitland – an alleged accessory to Mr Macdonald - paragraph 13

3.3    The elements in dispute - paragraph 15

4.    The Crown case

4.1    A brief overview of the Crown case - paragraph 16

4.2    The evidence in the Crown case - paragraph 22

4.3   A brief summary of the evidence given by each witness - paragraph 30

Mr Luke Foley - paragraph 31

Mr George Campbell - paragraph 33

Mr Paul Bastian - paragraph 34

Ms Karen Smith - paragraph 35

Mr Morris Iemma - paragraph 36

Mr Michael Costa - paragraph 38

Mr Anthony Albanese - paragraph 40

Mr Douglas Cameron - paragraph 42

Mr Brad Mullard - paragraph 44

Mr Alan Coutts - paragraph 46

Dr Richard Sheldrake - paragraph 48

Ms Patricia Madden - paragraph 49

Ms Julie Moloney - paragraph 51

Mr Anthony Hewson - paragraph 53

Ms Sue-Ern Tan - paragraph 55

Mr Jamie Gibson - paragraph 56

Mr Brendan McPherson - paragraph 57

Mr Nathan Rees - paragraph 59

Mr Michael Buffier - paragraph 61

Mr Nicholas Papallo AO - paragraph 63

Mr Richard Jones - paragraph 65

Mr Paul Healey - paragraph 67

Mr Jason Bartlett - paragraph 69

Mr Archibald Tudehope - paragraph 71

Ms Lyndall Hilder - paragraph 73

Mr James Chisholm - paragraph 75

Mr Peter Coates - paragraph 77

Mr Anthony Maher - paragraph 79

Dr Nicole Williams - paragraph 81

Mr Lawrence Ireland - paragraph 83

Mr Robert Cameron - paragraph 86

Mr Ian Macdonald - paragraph 88

5.    The evidence called by Mr Macdonald - paragraph 93

5.1    Mr John Della Bosca - paragraph 95

5.2    Mr Maitland’s evidence and evidence called by him - paragraph 97

5.3    Some directions with respect to Mr Macdonald’s case - paragraph 98

6.    The evidence called by Mr John Maitland - paragraph 101

6.1    Mr Maitland’s evidence - paragraph 102

6.2    Mr Glen Lewis’ evidence - paragraph 105

6.3    Mr Andrew Poole’s evidence - paragraph 107

6.4    Some directions with respect to Mr Maitland’s case - paragraph 109

7.    The case in detail: Part 1 – The Crown’s alleged motive and the accused’s asserted motivations

7.1    The Crown’s alleged motive

7.1.1   The significance of motive - paragraph 113

7.1.2   Mr Macdonald’s political position – the Noble House meeting - paragraph 114

Mr Luke Foley - paragraph 117

Mr George Campbell - paragraph 126

Mr Paul Bastian - paragraph 128

Mr Anthony Albanese - paragraph 129

Mr Douglas Cameron - paragraph 132

Mr John Della Bosca - paragraph 135

Mr John Maitland - paragraph 137

The outcome of the Noble House meeting - paragraph 138

7.1.3    The political relationship between the accused - paragraph 139

7.1.4   A friendship between the accused? - paragraph 141

7.1.5   Conclusion as to motive - paragraph 151

7.2    The motivations of the accused - paragraph 156

7.2.1    Mr Maitland’s motivations - paragraph 157

7.2.2   Mr Macdonald’s motivations - paragraph 167

8.    The case in detail: Part 2 – Mr Macdonald - his role, responsibilities, and the allocation of coal - paragraph 174

8.1    Mr Macdonald, his position and ministerial responsibilities - paragraph 175

8.2    The decision to grant consent to apply

8.2.1   The decision - paragraph 179

8.2.2   The significance of a decision to grant consent to apply - paragraph 182

8.3    The coal allocation committee and the guidelines

8.3.1   An overview of the allocation of coal resources - paragraph 185

8.3.2   The guidelines - paragraph 194

8.3.3   Other areas allocated by direct allocation - paragraph 201

8.4    An overview of relevant administrative and advisory bodies - paragraph 209

9.   The case in detail: Part 3 – The context surrounding the grant of consent - paragraph 217

9.1    The State’s financial position - paragraph 218

9.2   Caroona and Watermark - paragraph 223

9.2.1   The significance of the Caroona and Watermark bids - paragraph 232

9.3    Interest in coal mining in the Jerrys Plains area - paragraph 246

9.3.1   Independent Coal Pty Ltd - paragraph 247

9.3.2   Excel/Peabody - paragraph 248

9.3.3   Simatar Resources Pty Ltd - paragraph 249

9.3.4   Bayswater Colliery - paragraph 250

9.3.5   Atlas Coal Enterprises Pty Ltd - paragraph 251

10. The case in detail: Part 4 – The process leading to the application for consent - paragraph 257

10.1    Mr Maitland’s appointment to the Coal Competence Board - paragraph 258

10.2   The meeting of 19 January 2007 - paragraph 259

10.3   Mr Maitland’s “briefing note” of 22 January and the ResCo application of 15 February 2007 [280] - paragraph 263

10.4   The Department’s briefing note of 22 February 2007 - paragraph 279

10.5   The meeting of 8 March 2007 - paragraph 290

10.6   Post-election and the Prime Restaurant meeting - paragraph 297

10.6   The Department’s briefing note of 14 August 2007 - paragraph 307

10.7   Letters of support in August and September 2007 - paragraph 313

11. The case in detail: Part 5 – DCM’s Submission of 18 March 2008 (the second application with more detail), the response to the submission and its approval

11.1   The submission - paragraph 335

11.2   The Department’s briefing note of 13 May 2008 - paragraph 346

11.3   Events following the briefing note - paragraph 347

11.4    The issues in the briefing note and Mr Macdonald’s response

11.4.1   Dot points 1, 6 and 9 – the size of the mine - paragraph 349

11.4.2   The size of the training component based on the number of trainees - paragraph 360

11.4.3   The other dot points - paragraph 366

11.4.3   Discussions with the Department following the briefing note - paragraph 372

11.4.4   Strangers’ Dining Room meeting with Mr Maitland and Mr Ransley on 17 June 2008 following the Department’s advice - paragraph 377

11.5    Gathering support

11.5.1   Events immediately following the Strangers’ Dining Room meeting - paragraph 380

11.5.2   The letters - paragraph 383

11.5.3   Seeking support of the NSW Minerals Council - paragraph 386

11.5.4   Conclusion with respect to the process of obtaining support - paragraph 395

11.6   Release of other areas - paragraph 397

11.7    A failure to refer to advisory organisations or Cabinet? - paragraph 406

11.7.1   Mine Safety Advisory Council - paragraph 407

11.7.2   Minerals Ministerial Advisory Council - paragraph 414

11.7.3   Coal Services - paragraph 419

11.7.4   Cabinet - paragraph 420

11.8    The grant of the consent

11.8.1   Mr Macdonald’s decision - paragraph 425

11.8.2   The meeting of 14 August and other events preceding the letter - paragraph 427

11.8.3   The terms of the letter - paragraph 440

11.8.4   Conclusions to be drawn from the drafting of the letter - paragraph 443

11.9   Events immediately following the grant of consent to apply on 21 August 2008 - paragraph 449

12.    The case in detail: Part 6 – The application for and granting of the exploration licence and the events following

12.1   The application - paragraph 452

12.2   Drafting conditions - paragraph 460

12.3   Nippon Club meeting on 25 November 2008 - paragraph 462

12.4   Catalina Restaurant: the signing of the exploration licence on 15 December 2008 - paragraph 467

12.5    The Doyles Creek media release - paragraph 479

12.6   Post allegation events

12.6.1   An alleged lie to Mr Rees - paragraph 486

12.6.2   Correspondence from the Department in relation to the decision - paragraph 496

12.6.3   Correspondence with Alan Jones - paragraph 497

13.    Determination in relation to Mr Macdonald with respect to Count 1

13.1   Element 3 – misconduct - paragraph 503

13.1.1   A training mine may have been a good idea - paragraph 505

13.1.2   The limitations on relying on letters of support - paragraph 508

13.1.3   The value of the resource and the relative size of the training mine - paragraph 511

13.1.4   Scrutiny of the proposal - paragraph 517

13.1.5   The financial climate - paragraph 524

13.1.6   A training mine and a tender process were not mutually exclusive - paragraph 527

13.1.7   Other factors - paragraph 538

13.1.8   Conclusion in relation to proof of misconduct by Mr Macdonald in granting DCM consent to apply for an exploration licence on or about 21 August 2008 - paragraph 539

13.2   Other elements

13.2.1   Elements 1-4 - paragraph 544

13.2.2   Element 5 – reasonable cause or justification - paragraph 546

13.2.3   Element 6 – the conduct was serious and merits criminal punishment - paragraph 550

13.3   Conclusion – Count 1 - paragraph 553

14.    Determination in relation to Mr Macdonald with respect to count 3

14.1   Misconduct with respect to Count 3 - paragraph 554

14.2   Other elements

14.2.1   Elements 1-4 - paragraph 562

14.2.2   Element 5 – reasonable cause or justification - paragraph 564

14.2.3   Element 6 – the conduct was serious and merits criminal punishment - paragraph 566

14.3   Conclusion – Count 3 - paragraph 567

15.    Determination in relation to Mr Maitland

15.1    Consideration of the case against Mr Maitland - paragraph 568

15.2    Count 2: Element 1 in the case against Mr Maitland – proof that Mr Macdonald committed the offence - paragraph 570

15.3   Count 2: Element 2, elements 3(b) and (c), elements 4(a), (b), (c), (e) and (f), and element 5 - paragraph 574

15.4    The real issue – Mr Maitland’s state of mind in relation to Mr Macdonald’s misconduct (element 3(a) and element 4(d)) - paragraph 580

15.5    The process leading up to the March 2008 submission from Mr Maitland’s perspective

15.5.1   The meeting of 15 January 2007 - paragraph 585

15.5.2   The meeting of 8 March 2007 between Mr Maitland, Mr Hewson and Ms Tan and the “potential probity issues” - paragraph 597

15.5.3   ResCo Board meeting on 3 April 2007 - paragraph 604

15.5.4   The CFMEU’s position - paragraph 608

15.5.5   Prime Restaurant meeting on 26 July 2007 , “the strategy” and the process leading to the submission made on 18 March 2008 - paragraph 609

15.5.6 The submission of 18 March 2008 - paragraph 628

15.6   Events following the lodging of the submission relevant only to Mr Maitland - paragraph 632

15.6.1   Letter to the Taiwan Power Corporation - paragraph 633

15.6.2   Media articles - paragraph 634

15.6.3 The Department’s Briefing Note of 13 May 2008 - paragraph 637

15.6.4   Seeking support and the approach to the NSW Minerals Council - paragraph 639

15.6.5 The grant of consent to apply - paragraph 645

15.7   Mr Maitland’s attempts to sell a share of DCM based on the exploration licence and the Crown case that he believed he had been “gifted” something of significant value

15.7.1   Mr Maitland’s emails placing a value on the exploration licence - paragraph 647

15.7.2    Mr Maitland’s answer to the valuation emails – business “teasers” and other things - paragraph 656

15.7.3 The value of Mr Maitland’s shareholdings in DCM and opportunities to obtain additional shares - paragraph 661

15.7.4    Mr Maitland’s knowledge of the Department’s recommendations and the potential AFC forgone - paragraph 670

15.7.5    Conclusion as to Mr Maitland’s belief he had been gifted something of value - paragraph 671

15.8   Obtaining evidence of support to fulfil the conditions on the grant of consent - paragraph 676

15.8.1 Obtaining community support - paragraph 677

15.8.2 Obtaining evidence of industry support - paragraph 681

15.8.3   Conclusion in relation to satisfaction of the conditions on the grant of consent - paragraph 682

15.9   The application for and granting of the exploration licence - paragraph 687

15.10    Conclusion in relation to count 2 against Mr Maitland - paragraph 690

15.11   Conclusion with respect to count 4 against Mr Maitland - paragraph 700

Orders - paragraph 704

JUDGMENT

1. The Charges

1. HIS HONOUR: Ian Michael Macdonald stands charged on an indictment with two counts of wilful misconduct in public office as follows:

“Count 1:

On or about 21 August 2008 in Sydney in the State of New South Wales, then holding public office as Minister for Mineral Resources did in the course of and connected to his public office wilfully misconduct himself by granting Doyles Creek Mining Pty Ltd consent to apply for an exploration licence under the Mining Act 1992, without reasonable cause or justification, 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.

Count 3:

On or about 15 December 2008 in Sydney in the State of New South Wales, then holding public office as Minister for Mineral Resources did in the course of and connected to his public office wilfully misconduct himself by granting to Doyles Creek Mining Pty Ltd Exploration Licence No. 7270 under the Mining Act 1992, without reasonable cause or justification, 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.”

2. John William Maitland stands charged on the same indictment with two counts of being an accessory before the fact to the two principal offences with which Mr Macdonald is charged, as follows:

“Count 2:

Whereas on or about 21 August 2008 in Sydney in the State of New South Wales Ian Michael Macdonald then holding public office as Minister for Mineral Resources did in the course of and connected to his public office wilfully misconduct himself by granting Doyles Creek Mining Pty Ltd consent to apply for an exploration licence under the Mining Act 1992, without reasonable cause or justification, 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.

AND THAT:

Between 17 January 2007 and 22 August 2008 in Sydney and elsewhere in the State of New South Wales did beforehand, aid, abet, counsel and procure the commission of the said offence.

Count 4:

Whereas on or about 15 December 2008 in Sydney in the State of New South Wales Ian Michael Macdonald then holding public office as Minister for Mineral Resources did in the course of and connected to his public office wilfully misconduct himself by granting to Doyles Creek Mining Pty Ltd Exploration Licence No. 7270 under the Mining Act 1992, without reasonable cause or justification, 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.

AND THAT

Between 21 August 2008 and 16 December 2008 in Sydney and elsewhere in the State of New South Wales did beforehand, aid, abet, counsel and procure the commission of the said offence.”

3. It is, accordingly, for the prosecution to prove counts 1 and 3 against the accused Mr Macdonald and counts 2 and 4 against the accused Mr Maitland. That onus remains on the Crown throughout. The accused are presumed to be innocent of each offence unless and until the Crown has proved his guilt of the particular offence beyond reasonable doubt. To prove the guilt of either of the accused with respect to either of the offences against him, the Crown must prove beyond reasonable doubt that he committed that offence.

1. Some preliminary matters

2.1    The first trial

4. The accused were the subject of an earlier trial, presided over by Adamson J with a jury, on the same indictment. There is no issue with the retrial before me taking place on that same indictment: see R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 per Howie J at [221]. A number of pre-trial orders were made, the jurisdiction of the Court having been established by the earlier arraignment of the accused on the indictment. While not strictly necessary for the purposes of jurisdiction, the accused were re-arraigned before me on 7 September 2022 to mark the formal start of the trial before me: see Stephens v The Queen (2022) 96 ALJR 871; [2022] HCA 31 per Steward J at [54]. At this trial, Mr Macdonald has been represented by Mr Rajalingam of counsel. Mr Maitland appeared for himself.

5. The above history of the proceedings is not relevant to my decision. My decision will be made only on the evidence led at the trial before me. Reference to the history is, however, unavoidable, having regard to the date of the indictment, the nature of the evidence led at this trial (which included significant quantities of transcript from the earlier trial), and the principles of law enunciated in the appeal proceedings in Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 which led to this retrial. I stress that that decision is not relevant other than to the extent that it decided principles of law (binding on me) to be applied in this case. I note that I have, in any event, had access only to the currently unrestricted form of that judgment.

2.2    Trial by judge alone

6. On 18 August 2022, I made an order pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), that the accused be tried by Judge alone: R v Macdonald; R v Maitland(No 2) [2022] NSWSC 1208. Section 133(1) provides that my verdict will have the same effect as a jury verdict and that I may make any finding that could be made by a jury. Section 133(2) mandates that I record the relevant principles of law and the findings of fact on which I rely. Section 133(3) provides that I must take into account any warning that would be given to a jury.

7. The overriding legal principle by which this judgment is guided is that the prosecution must prove the guilt of the accused and must do so beyond reasonable doubt. While it is not required to prove each disputed fact to that standard, it must prove the essential elements of any particular charge, beyond reasonable doubt, before a verdict of guilty can be returned in respect of that charge. If there is any reasonable doubt in relation to any element, I must find the particular accused to which it relates not guilty. The words “beyond reasonable doubt” are ordinary words and need no further elaboration. It is a very high standard of proof and is to be distinguished from suspicion, however grave, and proof on the balance of probabilities.

8. Where, as here, the prosecution relies on the drawing of inferences to establish an element, the Crown must prove that the conclusion required by the element is the only reasonable inference to be drawn. It follows that the Crown must exclude any alternative inference that is inconsistent with guilt. Where, in order to prove an element, the Crown relies on inferential reasoning to establish some intermediate fact, while that intermediate fact may not need to be proved beyond reasonable doubt, I remind myself of the care to be taken in the drawing of inferences to find any such fact.

2.3    Joint trial of multiple charges

9. Mr Macdonald and Mr Maitland are being tried together as a matter of convenience. I must, of course, give separate consideration to the case against each accused, and make my determination based only on the evidence admissible against that accused. Similarly, each charge against each accused must be separately considered having regard to the evidence relevant to that charge.

10. In this context, I note that each accused led evidence in his own case. While the trial of each accused remains separate in the sense referred to above, the evidence led by each accused is generally admissible with respect to both accused. That is, the evidence is admissible subject to any specific basis on which particular evidence, admissible in the case of one accused, is not admissible in the case of the other.

1. The elements of the offences

11. The elements of the offences are, in accordance with the Court of Criminal Appeal’s judgment in Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 and my reasons in R v Macdonald; R v Maitland (No 8) [2022] NSWSC 1421, as set out below.

3.1    The elements – Mr Macdonald – the alleged principal offender

12. The elements of the offences charged against Mr Macdonald are as follows (with matters particular to count 1 underlined and, to count 3, in square brackets): [1]

    1. MFI 15.

1. Mr Macdonald was a public official, that being the Minister for Mineral Resources.

2. In the course of, or in connection with, his public office he granted Doyles Creek Mining Pty Ltd (DCM) consent to apply for an exploration licence [Exploration Licence No. 7270] under the Mining Act 1992 (NSW).

3. In granting consent [Exploration Licence No. 7270], Mr Macdonald misconducted himself as the consent [exploration licence] was granted for the purpose of benefiting Mr Maitland and DCM in that this purpose was the driving force behind the decision such that the decision would not have been made but for this purpose.

4. Mr Macdonald’s misconduct was wilful in that he knew either that:

1. he was obliged not to use his position in that way; or

2. it was possible that he was obliged not to use his position in that way but chose to do so anyway.

5. Mr Macdonald granted such consent [Exploration Licence No. 7270] without reasonable cause or justification.

6. Mr Macdonald’s misconduct was serious and merits 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.

3.2   The elements – Mr Maitland – an alleged accessory to Mr Macdonald

13. The elements of the offences against Mr Maitland are as follows (with matters particular to count 2 underlined and, to count 4, in square brackets):

1. Mr Macdonald committed the principal offence charged in count 1 [count 3] (in that, on the evidence admissible against Mr Maitland, each element of count 1 [count 3] against Mr Macdonald is proved).

2. Between 17 January 2007 and 22 August 2008 [between 21 August 2008 and 16 December 2008], Mr Maitland intentionally assisted and encouraged Mr Macdonald to grant DCM consent to apply for an exploration licence [an exploration licence] under the Mining Act.

3. Mr Maitland intended that Mr Macdonald, in the course of or in connection with his public office, would grant DCM consent to apply for an exploration licence [an exploration licence] in circumstances where:

1. the consent [exploration licence] was granted for the purpose of benefiting Mr Maitland and DCM, where this purpose was the driving force behind the decision such that the decision would not have been made but for this purpose;

2. Mr Macdonald knew either that he was obliged not to use his position in that way; or that it was possible that he was obliged not to use his position in that way but chose to do so anyway; and

3. Mr Macdonald did not have reasonable cause or justification.

4. At the time Mr Maitland encouraged and assisted Mr Macdonald, he knew that:

1. Mr Macdonald was a public official;

2. Mr Macdonald had the power to grant DCM consent to apply for an exploration licence [an exploration licence] under the Mining Act and that there was a real prospect that he would grant such consent [exploration licence];

3. If Mr Macdonald granted DCM consent to apply for an exploration licence [an exploration licence] under the Mining Act he would be acting in the course of, or in connection with, his public office;

4. If Mr Macdonald granted DCM consent to apply for an exploration licence [an exploration licence] under the Mining Act, he would be misconducting himself because the consent [exploration licence] would be granted for the purpose of benefiting Mr Maitland and DCM and this purpose would be the driving force behind the decision such that the decision would not have been made but for this purpose;

5. If Mr Macdonald granted DCM consent to apply for an exploration licence [an exploration licence] under the Mining Act his misconduct would be wilful because Mr Macdonald knew either that:

1. he was obliged not to use his position in that way; or

2. it was possible that he was obliged not to use his position in that way but chose to do so anyway.

6. If Mr Macdonald granted such consent [licence] it would be without reasonable cause or justification.

5. The facts of which Mr Maitland was aware were sufficient to result in Mr Macdonald’s conduct 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.

14. With respect to element 1, above, it is unnecessary to repeat the elements as set out with respect to Mr Macdonald.

3.3    The elements in dispute

15. While it is necessary that I be satisfied of every element, there was no issue that Mr Macdonald granted DCM consent to apply for an exploration licence (count 1) and subsequently granted an exploration licence (count 3) and that he did so in the course of his public office. There is also no issue that Mr Macdonald knew he was obliged not to use his position to favour Mr Maitland, and thus, if he did so his conduct was wilful. While it was submitted that if Mr Macdonald misconducted himself he had reasonable cause or justification, and that further, any such misconduct was not sufficiently serious to be criminal, the central issue was whether Mr Macdonald engaged in misconduct. In relation to Mr Maitland, it was firstly in issue as to whether it was proved against him that Mr Macdonald engaged in misconduct. If so, it was in issue as to whether it was proved that he was aware of Mr Macdonald’s misconduct and intended that Mr Macdonald engage in misconduct.

1. The Crown case

4.1    A brief overview of the Crown case

16. It is convenient at this stage to provide an overview of the Crown case in very brief terms. As is apparent from the indictment, it is alleged that Mr Macdonald, on two occasions, misconducted himself in public office. That office was his position as the Minister for Mineral Resources in the State Labor government, a position he had held since 3 August 2005. In that position he was responsible for the State’s mineral resources, including coal. He was, additionally, a member of the Cabinet. The Department of Primary Industries (“the Department” or “the DPI”) was responsible for administering the sector in accordance with government policy, advising the Minister and implementing his decisions. A mining company seeking to establish a coal mine in a particular area would first need an exploration licence for that area. At the time, an application for an exploration licence could not be made unless the Minister had first granted consent to apply. Mr Macdonald, as the Minister, had the power to grant an applicant consent to apply for an exploration licence and the power to grant the exploration licence. In reality, the grant of consent to apply was the most significant step in establishing a coal mine. If granted, the expectation was that the exploration licence would be granted, and subsequent to that (assuming the exploration was successful), a mining lease. The grant of the mining lease fell within the responsibilities of the Department of Planning (and a different minister). Nonetheless, at least from the perspective of the Department, it was expected that there would be coordination within the bureaucracy such that a prospective miner would not undergo the process of obtaining an exploration licence and consequent exploration, only to be denied a mining lease.

17. Mr Maitland had been, for some years, a senior union official in the mining industry, ultimately resigning in 2006 as the National Secretary of the Construction, Forestry, Mining and Energy Union (the CFMEU). As a result of their respective positions the two accused were known to each other professionally, and on the Crown case, were friends. Subsequent to Mr Maitland’s retirement from the union, Mr Macdonald appointed him as chair of a body he had established called the Coal Competence Board, which was to report to Mr Macdonald as Minister. Mr Maitland also accepted a position as chair of a company, ResCo Services Pty Ltd (ResCo). ResCo’s primary activity at that point was as a labour hire company providing services to the mining industry. It also provided engineering services for mine development. [2] ResCo had aspirations to engage in mining and identified an area of land at Doyles Creek in Hunter Valley, nearby to a township called Jerrys Plains. A plan was arrived at to seek access to the area in order to establish a commercial mine together with a training mine. Mr Maitland had long had an interest in establishing an underground training mine based on a genuine belief such training would enhance safety in the industry. The training mine was also to be promoted on the basis that it would address a serious skills shortage in the industry.

    2. Exhibit A, pp 451-452; Tcpt, 10 October 2022, p 832 (Poole).

18. ResCo made application for consent to apply for an exploration licence for the area in February 2007 seeking what was described as a “direct allocation”. At the time the Department’s guidelines provided that the allocation of a “major stand-alone area”, such as that sought, would be allocated by some form of competitive process such as tender or expression of interest, possibly with an “open-ended financial contribution”. The tender processes in relation to applications for consent to apply in relation to some other coal resources had, around the relevant time, resulted in very substantial payments by mining companies. The benefit in the establishment of a training mine provided the basis on which it was sought to justify the allocation of the resource to ResCo. Mr Maitland’s appointment to ResCo acknowledged his access to the Minister (as a result of his position on the Coal Competence Board) and it was anticipated that he would use that access to promote ResCo’s application for consent to apply for an exploration licence for the area, and ultimately an exploration licence, largely based on the benefit to be obtained from a training mine.

19. The February 2007 ResCo proposal was relatively insubstantial and was not determined. In March 2007, following the State government election, the State Labor government was returned and Mr Macdonald retained his portfolio. Thereafter, the Crown alleges that Mr Maitland dealt with Mr Macdonald, through Mr Macdonald’s office, but including in meetings in person (with ministerial staff present), and formulated a “strategy” which would give substance to the application and allow Mr Macdonald to approve it other than on merit. A significantly more comprehensive application for consent to apply was made on 18 March 2008 by DCM, an entity established by ResCo for that purpose. Mr Macdonald granted the application by letter dated 21 August 2008 (count 1). That allowed DCM to apply for an exploration licence which they did, after completing various formal requirements and payment of fees, on 29 September 2008. Mr Macdonald granted Exploration Licence No. 7270 on 15 December 2008 (count 3).

20. The Crown alleges Mr Macdonald misconducted himself with respect to each of those grants. Its case is essentially circumstantial, relying on various matters including what it says was a friendship between the two men, Mr Macdonald’s impending retirement (and consequent motive to secure his future), that Mr Macdonald acted against his Department’s advice, the value of the resource, that Mr Macdonald failed to obtain independent advice with respect to the proposal and the relative insignificance of any training mine compared to the expected commercial production of the mine.

21. It is alleged that Mr Maitland was an accessory before the fact to each of count 1 and count 3 (counts 2 and 4). The case does not require proof of an agreement as would be required, for example, in relation to a conspiracy charge, or an allegation of a joint criminal enterprise. Rather, the Crown case against Mr Maitland is that, from all the circumstances known to him, the inference would be drawn, beyond reasonable doubt, that he knew Mr Macdonald was misconducting himself on each occasion, and he intended that he would do so.

4.2    The evidence in the Crown case

22. It is not practical in these reasons to refer to all the evidence given, and exhibits tendered by or on behalf of the Crown or the accused. I have considered all the evidence. My failure to refer to some part of the evidence should not be taken to mean I have not considered it.

23. The Crown case relied on the transcripts of the evidence given by the witnesses in the first trial. These transcripts were tendered by consent, though in some cases the witness was required for further cross-examination. No additional witnesses were called by the Crown at this trial. A reference to the “evidence” given by a witness in these reasons includes evidence given by the witness in the first trial as well as evidence given before me.

24. Mr Macdonald gave evidence in his own case at the first trial. The evidence of Mr Macdonald given at that trial was tendered by the Crown in this trial. [3] The Crown relied on various representations in the evidence as admissions and thus admissible against Mr Macdonald. Mr Macdonald did not resist this but requested that the Crown tender the entirety of Mr Macdonald’s evidence, which the Crown agreed to do, resulting in the entirety of the evidence being before me. In accordance with what I have said above, I will refer to the “evidence” of Mr Macdonald when referring to the transcript of his evidence in the first trial as tendered before me.

    3. Exhibit TAE.

25. As a result of Mr Macdonald giving evidence in the last trial, his evidence was evidence in the trial of both accused at that trial. In the present trial, Mr Maitland, while consenting to the tender of the transcripts of evidence of the various Crown witnesses, did not consent to the tender of Mr Macdonald’s evidence in the case against him. The result is that the evidence as against Mr Macdonald is hearsay and is not admissible against Mr Maitland. Further, I note, Mr Maitland expressly disavowed reliance on any parts of the evidence of Mr Macdonald. I will have no regard to the evidence of Mr Macdonald in the case against Mr Maitland.

26. The entirety of the exhibits from the first trial were also tendered at this trial. Some documentary material additional to that tendered in the first trial was also tendered before me. The principal Crown exhibit was Exhibit A, which was in the nature of a “tender bundle” with an index to all of the 2017 exhibits. Folder 1 and 2 of Exhibit A contains relevant documents in chronological order. Folder 3 of Exhibit A (Caroona and Watermark), contains documents specific to the Caroona and Watermark resource allocations. Additional to this material are Exhibits B to AF (the final two of which were additional to that tendered in the first trial). The accused at this trial adopted the same approach as had been adopted in the first trial – that is, no issue was taken as to the admissibility of the documents, or their provenance, as indicated in the index. [4] One qualification to this must be noted. The index listed, in a separate column, whether the tender was limited to only one of the accused (and where blank, the document was relied upon as admissible against both). There is no issue where the document is said to be only admissible against Mr Maitland. Those documents cannot be taken into account in the case of Mr Macdonald. The position in relation to documents marked as admissible against Mr Macdonald only was more nuanced. Because Mr Maitland’s alleged liability, in each of counts 2 and 4 charged against him, is as an accessory to alleged offences committed by Mr Macdonald, each of the counts against him require proof of the commission of the principal offence by Mr Macdonald. The position ultimately taken was that the reference to a document not being admissible against Mr Maitland should be taken to be not “directly” admissible against Mr Maitland. What was meant by that was that the document could be relied upon to prove, in the case against Mr Maitland, the commission by Mr Macdonald of the offence, but otherwise had no relevance to the other elements to be proved against Mr Maitland.

    4. MFI 1.

27. The position taken above is generally understandable. The exhibits consist almost, if not entirely, of business records and would generally be admissible (over objection) against each accused. There are potential exceptions, such as, for example, a document not relied on as containing representations made “by a person who had or might reasonably be supposed to have had personal knowledge of [an] asserted fact”, or “on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of [an] asserted fact”. [5] An example of this might be a letter written by Mr Macdonald which is alleged to be false or misleading. While no objection was specifically taken to such documents, having regard to the fact that Mr Maitland was not represented, I do not propose to rely on documents in this category in his case.

    5. Evidence Act 1995 (NSW), s 69(2).

22. Both accused tendered before me the exhibits tendered by them at the first trial. Those exhibits were added to by further exhibits that had not been tendered in the first trial. All of these exhibits were generally available in the case of each accused, although in the case of some exhibits tendered by Mr Maitland, Mr Macdonald indicated his specific reliance on the exhibit.

23. It is necessary to say something with respect to the fact that much of the evidence of witnesses, including, importantly, that of Mr Macdonald, was in the form of transcript. No submission was made as to how I should treat this evidence as compared to the evidence given before me in person. I am mindful of the “natural limitations” that exist when proceeding based on a transcript of evidence given on a previous occasion: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [40]; Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [91]-[93], [133]; Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 at [21], [41]. Those natural limitations often mean that a jury (or a judge in a judge alone trial) will have an advantage over an appellate court in determining the matter on the record. In such a case, speaking in a criminal law context, the natural limitations have the effect of restraining the appellate court in that any doubt experienced by an appellate court will only result in a finding that a verdict is unreasonable when a doubt cannot be explained by the advantage held by the jury at first instance: M v The Queen (1994) 181 CLR 487; [1994] HCA 63, and the many cases, both preceding, and following. That is a very different situation to that which pertains here. I am hearing the matter at first instance. The Crown must persuade me beyond reasonable doubt of the guilt of the accused with respect to the charges against them. In these circumstances, and having regard to the onus of proof, it is necessary that I take care not to accept a version challenged by the accused, or reject evidence relied on by the accused where the manner in which that evidence was given may have been decisive. That, of course, is not to say that I am not required to carefully assess the evidence based on its plausibility, both inherent and in the context of all the evidence before me. Ultimately, little of the evidence in the transcript relied on by the Crown is in issue (as opposed to the inferences to be drawn from that evidence). Mr Macdonald’s evidence, and its impact on the inferences to be drawn from the evidence relied on by the Crown is, of course, squarely in issue. I will deal with this issue in relation to Mr Macdonald’s evidence, as relevant, in due course.

4.3   A brief summary of the evidence given by each witness

30. The witnesses in the Crown case (including those who did not give evidence before me but whose evidence from the first trial was tendered) were as follows.

Mr Luke Foley

31. The transcript of the evidence of Mr Luke Foley of 7 February 2017 (from the first trial) and of 20 February 2020 (in proceedings that were not identified) was tendered. [6] Mr Foley was also called before me for further cross-examination. Mr Foley has been a member of the Australian Labor Party (ALP) since 1988 and became Assistant General Secretary of the party in about 2003. Assistant General Secretaries were “heavily involved” with managing the selection and endorsement of ALP candidates for Federal, State and Local government. [7] Mr Foley was a member of the Legislative Council from June 2010 until March 2015, when he became a member of the Legislative Assembly. He was the Leader of the Opposition when he gave evidence in February 2017. [8]

    6. Exhibit TA.

    7. Exhibit TA – Tcpt, 7 February 2017, pp 77-78 (Foley).

    8. Exhibit TA – Tcpt, 7 February 2017, p 77 (Foley)

32. Mr Foley gave evidence of the circumstances surrounding Mr Macdonald’s pre-selection for the Legislative Council, what was described as the Noble House meeting and the relationship between Mr Macdonald and Mr Maitland.

Mr George Campbell

33. The transcript of the evidence of Mr George Campbell of 7 February 2017 was tendered. [9] Mr Campbell joined the ALP in 1966 and was National Secretary of the Australian Manufacturing Workers’ Union (AMWU) from 1986 to 1996. From 1997 to 2008 he was a senator in the Federal Parliament. [10] He gave evidence of the circumstances surrounding Mr Macdonald’s pre-selection for the Legislative Council, the Noble House meeting and the relationship between Mr Macdonald and Mr Maitland.

Mr Paul Bastian

9. Exhibit TB.

10. Exhibit TB – Tcpt, 7 February 2017, p 105 (Campbell).

34. The transcript of the evidence of Mr Paul Bastian of 7 February 2017 was tendered. [11] Mr Bastian was Secretary of the NSW branch of the Metal Workers’ Union (now the AMWU) from 1997 to December 2009. He then became National President of the AMWU until August 2012, when he became the National Secretary of the AMWU, which he remained when he gave his evidence in February 2017. [12] He gave evidence on the circumstances surrounding Mr Macdonald’s pre-selection for the Legislative Council, the Noble House meeting and the relationship between Mr Macdonald and Mr Maitland.

Ms Karen Smith

11. Exhibit TC.

12. Exhibit TC – Tcpt, 7 February 2017, p 113 (Bastian).

35. The transcript of the evidence of Ms Karen Smith of 7 and 8 February 2017 was tendered. [13] Ms Smith had worked as a lawyer in the Department of Premier and Cabinet since December 2010. As Deputy Secretary and General Counsel, she was responsible for the Cabinet and Legal branches of that Department, prepared commissions for Ministers and Executive Councils, and gave legal and procedural advice on Government matters, including the Ministerial Code of Conduct. [14] She gave evidence on the processes for Ministerial swearing in and the receiving of commissions, the briefing of new Ministers on Cabinet practices and procedures, the Ministerial Handbook and Code of Conduct, and other Cabinet documents and conventions.

Mr Morris Iemma

13. Exhibit TD.

14. Exhibit TD – Tcpt, 7 February 2017, p 118 (Smith).

36. The transcript of the evidence given by Mr Morris Iemma on 8 February 2017 was tendered. [15] He was also called in this trial. Mr Iemma was the Premier of New South Wales between August 2005 and September 2008, during which time Mr Macdonald was the Minister for Mineral Resources. He had been a member of the Legislative Assembly since 1991, as a member of the ALP. Prior to being the Premier, he had also been the Minister for Public Works and Services, Minister for Sport and Recreation, Minister for Health, Minister for Citizenship, Minister for Arts, Minister for State Development and the Treasurer for varying periods. [16]

    15. Exhibit TH.

    16. Tcpt, 12 September 2022, p 144 (Iemma).

37. Mr Iemma adopted the evidence given in the first trial and was then further cross-examined by the accused. He gave extensive evidence on Cabinet workings, including the induction of Ministers, Cabinet processes and operations, the responsibilities of different Cabinet committees, the types of matters that are brought to Cabinet, the relationship between a Minister and the Department and his understanding of briefing notes. He also gave evidence about the relationship between Mr Macdonald and Mr Maitland and the financial environment in New South Wales during his premiership. At this trial, he provided further evidence about the attributes of Mr Macdonald and his concerns about mine safety, and matters related to the underground training mine proposal.

Mr Michael Costa

38. The transcript of the evidence of Mr Michael Costa of 8 February 2017 was tendered. [17] He had previously been the Secretary of the Labor Council of NSW, the NSW branch of the Australian Council of Trade Unions (ACTU) and the peak council of trade unions in New South Wales. In 2001, Mr Costa was elected as an ALP member of the NSW Legislative Council. He was part of the Right faction of the ALP. Mr Macdonald, who was a member of the Left faction, was also a member of the Legislative Council during the same period. [18] Mr Costa was the NSW Treasurer in 2006, a position he retained until 5 September 2008. [19]

    17. Exhibit TE.

    18. Exhibit TE – Tcpt, 8 February 2017, pp 170-171 (Costa).

    19. Exhibit TE – Tcpt, 8 February 2017, p 171 (Costa).

39. Mr Costa gave evidence on the induction of Ministers, Cabinet processes and operations including that of the Budget Committee and Expenditure Review Committee, the types of matters that are brought to Cabinet, Coal Allocation Guidelines, and the allocation of the Caroona exploration licence. He also gave evidence on the relationship between Mr Macdonald and Mr Maitland.

Mr Anthony Albanese

40. The transcript of the evidence of the current Prime Minister, Mr Anthony Albanese of 17 February 2017 and, in different proceedings on 20 February 2020, was tendered. [20] Mr Albanese joined the ALP in 1979 and has held various senior roles in the party. From 1989 to 1995 he was Assistant General Secretary of the NSW ALP. His functions in that role were two-fold. He was second in charge of the NSW ALP and Deputy Campaign Director for State and Federal elections, with responsibilities in relation to printing, “how to vote” information, some publications, international and interstate votes and election contests. He was also informal coordinator of the Left faction of the ALP (a role which falls to the Assistant Secretary while the General Secretary coordinates the majority Right faction). [21] Mr Albanese’s role involved the pre-selection of candidates for elections, which involved giving support to Left candidates in lower house seats, dealing with credentialing issues and eligibility processes, and smoothing the process for Left candidates towards Senate, Upper House and other positions. ^[22] Mr Albanese was aligned with the Hard Left faction of the ALP, which was also known as the Metal Workers’ Group and the Union’s Group. ^[23] In March 1996, Mr Albanese became the Federal Member for Grayndler and held this position at the time of giving evidence. [24]

    20. Exhibit TF.

    21. Exhibit TF – Tcpt, 17 February 2017, p 733 (Albanese).

    22. Exhibit TF – Tcpt, 17 February 2017, p 734 (Albanese).

    23. Exhibit TF – Tcpt, 17 February 2017, p 734 (Albanese).

    24. Exhibit TF – Tcpt, 17 February 2017, p 733 (Albanese).

41. Mr Albanese gave evidence on the circumstances surrounding Mr Macdonald’s pre-selection for the Legislative Council, the Noble House meeting and Mr Maitland’s involvement in ALP factional politics. [25]

Mr Douglas Cameron

25. Exhibit TF – Tcpt, 17 February 2017, p 739 (Albanese).

42. The transcript of the evidence of Mr Douglas Cameron of 20 February 2017 was tendered. [26] Mr Cameron held various positions in the AMWU before becoming National Secretary (the Chief Executive Officer) of the AMWU in 1997. In June 2008 Mr Cameron became a senator of the Federal Parliament, which he remained at the time of giving his evidence in February 2017. [27]

    26. Exhibit TG.

    27. Exhibit TG – Tcpt, 20 February 2017, pp 817-818 (Cameron).

43. Mr Cameron gave evidence about the AMWU, concerns about safety in the coal mining and underground mining industry, the relationship between Mr Macdonald and Mr Maitland, the circumstances surrounding Mr Macdonald’s pre-selection for the Legislative Council and the Noble House meeting.

Mr Brad Mullard

44. The transcript of the evidence of Mr Brad Mullard of 8, 9, 10, 13 and 14 February 2017 was tendered. [28] He was also called in this trial. In or before 2008, Mr Mullard was the Director of Coal and Petroleum Development within the Mineral Resources section of the DPI. He reported directly to Mr Coutts. After Mr Coutts left the Department around November 2008, Mr Mullard acted in Mr Coutts’ position and later was appointed to the role of Deputy Director of Mineral Resources. He left the Department in about September 2014. [29] Mr Mullard was a member of a number of boards, including the Coal Compensation Board and the chair of the Coal Allocation Committee. [30] He was involved with the Coal Allocation Committee from around 2007, but took over the chairperson position when Mr Coutts left in November 2008. [31]

    28. Exhibit TI.

    29. Exhibit TI – Tcpt, 8 February 2017, pp 184-185 (Mullard).

    30. Exhibit TI – Tcpt, 8 February 2017, p 185 (Mullard).

    31. Exhibit TI – Tcpt, 8 February 2017, p 185 (Mullard).

45. Mr Mullard adopted the evidence given in the first trial and was then further cross-examined by the accused. He gave evidence about government mining policies, the coal allocation process including the role of the Department’s Coal Allocation Committee and the Coal Allocation Guidelines, the nature of an exploration licence and consent to apply for an exploration licence. His evidence included the payment of an additional financial contribution (AFC) in some cases. He also gave extensive evidence about the application and grant of the Doyles Creek exploration licence, including the factors that he perceived as increasing the attractiveness of the resource, previous expressions of interest in the resource, the DPI briefing notes, his conversation with Mr Macdonald about the proposal, his understanding of the “major policy difficulties” and “potential probity issues” referred to in the DPI briefing note, industry support, the estimated size and nature of the resource, the deviation from the usual process for issuing letters of consent, and about events following the grant of the exploration licence. Additionally, he gave some evidence on the industry’s concern about mine safety and the need for training. At this trial, he provided further comment on the briefing notes, the possible delays involved in a competitive allocation process, the Department’s focus on improving the health and safety of the mining workforce, the potential merits of the training mine proposal and the industry’s concerns about union involvement.

Mr Alan Coutts

46. The transcript of the evidence of Mr Alan Coutts of 14 and 15 February 2017 was tendered. [32] He was also called in this trial. Mr Coutts worked for 11 years in Mineral Resources, first as Director-General of Minister Resources, then as Deputy Director-General when the Department merged with the DPI in 2004. [33] Mr Coutts left the Department in November 2008. [34] He had regular discussions with staff at the Minister’s Office, principally the minerals policy adviser (who around 2006 was Ms Sue-Ern Tan, and subsequently Mr Jamie Gibson). [35]

    32. Exhibit TJ.

    33. Exhibit TJ – Tcpt, 14 February 2017, p 501 (Coutts).

    34. Exhibit TJ – Tcpt, 14 February 2017, pp 502-503 (Coutts).

    35. Exhibit TJ – Tcpt, 14 February 2017, pp 503-504 (Coutts).

47. Mr Coutts adopted the evidence given in the first trial and was then further cross-examined by the accused. He gave evidence of the relationship between Mr Macdonald and Mr Maitland, the coal allocation process, the competitive allocations of the Caroona and Watermark exploration licences, the Department’s budgetary concerns, considerations relating to the Jerrys Plains resource, past instances of direct allocations, and the application and grant of the Doyles Creek exploration licence, including his and the DPI’s views on the proposal, the Minister’s views on the proposal, industry support for training mines, his understanding of the briefing notes and the usual process for issuing letters of consent. He also gave evidence on the differences of opinion as to the seriousness of the skills shortage within the industry and the benefits of simulation training as opposed to real experience in an underground mine. In this trial, he provided further evidence about the Department’s views on DCM’s application, the concerns expressed in the briefing notes, the strong focus on health and safety in the mining sector, following the Gretley disaster and the inquiry by Dr James Macken AM and his views on the relevance of the probity issues after the March 2008 training mine facility submission was received.

Dr Richard Sheldrake

48. The transcript of the evidence of Dr Richard Sheldrake of 15 February 2017 was tendered. [36] Dr Sheldrake was the Director-General of the DPI from January 2008 to September 2013. He gave evidence of the 11 areas released for expressions of interest in 2008, the conditions of the exploration licence provided to DCM, the DPI Briefing dated 12 December 2008 recommending the grant of the exploration licence and the events following the grant of the exploration licence to DCM.

Ms Patricia Madden

36. Exhibit TK.

49. The transcript of the evidence of Ms Patricia Madden of 16 February 2017 was tendered. [37] She was also called in this trial. Ms Madden commenced employment with the DPI in May 2005 as a Ministerial Coordinator in the Titles Branch. From May 2006 to August 2012, she was a Manager of Operations within the Mineral Resources Development Branch and worked as essentially a Staff Officer to Mr Brad Mullard, managing the office, his correspondences, briefs and meetings. [38] She would also draft briefing notes, the content of which Mr Mullard had the final say. Ms Madden worked directly outside Mr Mullard’s office at Maitland. [39]

    37. Exhibit TL.

    38. Exhibit TL – Tcpt, 16 February 2017, p 644 (Madden).

    39. Exhibit TL – Tcpt, 16 February 2017, p 645 (Madden).

50. Ms Madden adopted her evidence given in the first trial and was then further cross-examined by the accused. She gave evidence on the Department’s coal exploration program, the draft briefing note of 9 February 2007 and briefing note of 22 February 2007, past Cabinet minutes and submissions that she was involved in, the 11 areas to be released for expressions of interest, a conversation with Mr Craig Munnings of Mr Macdonald’s office sometime after the briefing note dated 13 May 2008 about the Minister’s power to grant an exploration licence, and the deviation from the usual process for issuing letters of consent. In this trial, Ms Madden provided further evidence about the concerns in the briefing note of 13 May 2008 and her basis for raising probity issues.

Ms Julie Moloney

51. The transcript of the evidence of Ms Julie Moloney of 16 February 2017 was tendered. [40] She was also called in this trial. She worked as a geologist in the DPI until 2004, when she became the senior project officer and then the principal advisor in the industry coordination team for Mineral Resources. The industry coordination team provided briefings to the Minister’s office, drafted Ministerial responses, undertook flagship publications the DPI produced for Mineral Resources, and coordinated Mineral Resources’ responses to the Department of Planning for planning purposes. She later worked in the Titles Services team granting mining titles within the State. She was also the secretary of the Coal Allocation Committee and a member of the Expression of Interest Evaluation Panel for the 11 areas that were competitively released. She maintained the register of interests in coal allocations spreadsheet.

    40. Exhibit TM.

52. Ms Moloney adopted the evidence given in the first trial and was then further cross-examined by the accused. She gave evidence about the government mining policy, past instances of direct allocation, the 11 areas that were released for expressions of interest and the process of allocation via expressions of interest. In this trial, she gave further evidence about the Proposed NSW Coal Allocations document, [41] the process of evaluating different training mine proposals in a competitive process, her experience of engaging with proponents regarding their proposals or expressions of interest and the amount of drilling conducted in the Watermark and Caroona areas as compared to the Doyles Creek area.

Mr Anthony Hewson

41. Exhibit IM-13.

53. The transcript of the evidence of Mr Anthony Hewson of 16 and 17 February 2017 was tendered. [42] Mr Hewson worked as Mr Macdonald’s Chief of Staff from about 2004 until April 2007. His job as Chief of Staff in the Ministerial Office involved running the office, the budget and allocating work. [43] About April 2007, Mr Hewson left his position as Chief of Staff and went to work for BHP Billiton as Government Relations Director. [44]

    42. Exhibit TN.

    43. Exhibit TN – Tcpt, 16 February 2017, p 706 (Hewson).

    44. Exhibit TN – Tcpt, 17 February 2017, p 746 (Hewson).

53. Mr Hewson gave evidence about the relationship between Mr Macdonald and Mr Maitland, Mr Macdonald’s relationship with stakeholders generally, the meeting between Mr Macdonald and Mr Maitland on 19 January 2017 when the training mine idea was discussed for the first time, the application and grant of the Doyles Creek exploration licence, including the briefing notes, correspondence within the Minister’s office and with other stakeholders about the proposal, the meeting with Mr Maitland and Ms Tan on 8 March 2007 and Mr Macdonald’s attitude towards the options up until the time he left his role as Chief of Staff.

Ms Sue-Ern Tan

55. The transcript of the evidence of Ms Sue-Ern Tan of 17 February 2017 was tendered. [45] Ms Tan worked as a Department Liaison Officer in Mr Macdonald’s office from May 2006 to early 2008, with her particular focus being the Department of Mineral Resources. Mr Jamie Gibson was her successor in the role. She gave evidence about the relationship between Mr Macdonald and Mr Maitland, the meeting between Mr Macdonald and Mr Maitland on 19 January 2017 and the application and grant of the Doyles Creek exploration licence, including correspondence within the Minister’s office and with other stakeholders about the proposal, the meeting with Mr Maitland and Mr Hewson on 8 March 2007, the Prime Restaurant meeting on 26 July 2007 with Mr Maitland, Mr Macdonald and Mr Ransley, the request to the DPI for a briefing on the skills shortage in the mining industry following this meeting, the following up on the letters of support, and the meeting with the University of Newcastle on 5 November 2007 in the Minister’s office.

Mr Jamie Gibson

45. Exhibit TO.

56. The transcript of the evidence of Mr Jamie Gibson of 20 February 2017 was tendered. [46] Mr Gibson worked as Mr Macdonald’s Deputy Chief of Staff and policy adviser for mining in 2007 and became Chief of Staff in 2008. He gave evidence about the relationship between Mr Macdonald and Mr Maitland, Mr Macdonald’s interest in the safety of miners, the process after a proponent receives consent by the Minister to apply for an exploration licence, the proposal to release 11 small areas for expressions of interest, the March 2008 training mine facility submission and his anticipation that it was forthcoming, discussions between Mr Macdonald and Mr Coutts at meetings about the proposal and their disagreement, the Department’s briefing note of 13 May 2008, the meeting at the Strangers’ Dining Room on 17 June 2008 with Mr Maitland, Mr Macdonald, Mr Ransley and Mr Munnings, the custom of Mr Macdonald to discuss Ministerial business over meals, the meeting on 14 August 2008 with Mr Maitland and Mr Munnings about soliciting support from the Minerals Council of Australia (MCA) and the NSW Minerals Council, drafting of the invitation letter by Mr Macdonald and himself in August 2008, preparation of the special conditions, the meeting at the Nippon Club on 25 November 2008 between Mr Macdonald, Mr Maitland, Mr Ransley and himself, the signing of the exploration licence at Catalina Restaurant on 15 December 2008 which he attended, the preparation of the media release and various correspondences following the grant of the exploration licence.

Mr Brendan McPherson

46. Exhibit TP.

57. The transcript of the evidence of Mr Brendan McPherson of 21 February 2017 was tendered. [47] He was also called in this trial. Mr McPherson was the CEO of Donaldson Coal Pty Ltd from 2000 to 2010.

    47. Exhibit TG.

58. Mr McPherson adopted his evidence given in the first trial and was then further cross-examined by the accused. He gave evidence about Mr Maitland seeking a letter of support from Donaldson Coal for a training mine in mid-2008, the in-house training program at Donaldson Coal and Mr Maitland’s interest in training mines. In this trial, he provided his views on the efficacy of different types of training, the cost of operating a training mine, his support for training his own workforce and the reputation of various organisations from which letters of support were received.

Mr Nathan Rees

59. The transcript of the evidence of Mr Nathan Rees of 22 February 2017 was tendered. [48] He was also called in this trial. Mr Rees had been a member of the ALP for a number of years, and was, at times, part of the Left faction of the ALP. He was a member of the NSW Cabinet from March 2007 and was the Premier, unaligned to any faction, after Mr Iemma’s resignation as Premier from 5 September 2008 to 4 December 2009.

    48. Exhibit TR.

60. Mr Rees adopted the evidence given in the first trial and was then further cross-examined by the accused. He gave evidence on political fundraising, the induction of Ministers, briefing on Cabinet conventions, the types of matters to be brought to the Cabinet, the role of the Budget Committee, the Cabinet’s consideration of the proposed decision to grant an exploration licence in respect of an area called Cobbora, and the financial environment in NSW during his premiership. He also gave evidence of a conversation between himself and Mr Macdonald prior to 25 December 2008 where Mr Macdonald apparently indicated there was negligible commercial value in the mine. In this trial, he gave further evidence about his recollection of the conversation between himself and Mr Macdonald.

Mr Michael Buffier

61. The transcript of the evidence of Mr Michael Buffier of 27 February 2017 was tendered. [49] He was also called in this trial. Mr Buffier was the Chief Operating Officer of Xstrata Coal (now known as Glencore) in New South Wales between 2002 and February 2009. In early 2009, he became the Group Executive to Sustainable Development and Industrial Relations within Xstrata Coal. He was also a member of the Executive Committee of the NSW Minerals Council during 2008, involved in the World Coal Association from around 2009 until the end of 2021 and at the time of giving evidence at this trial was the Deputy Chair of the Coal Industry Advisory Board to the International Energy Agency in Paris.

    49. Exhibit TS.

62. Mr Buffier adopted the evidence given in the first trial and was then further cross-examined by the accused. He gave evidence about DCM’s invitation to Xstrata to be a potential joint venture partner in the DCM proposal, the letter of support Xstrata provided for the training mine idea and the skills shortage in the mining industry between 2007 and 2008. At this trial, he commented on the Training Mine Pre-Feasibility Study by Mr Rob Gibbons (the Gibbons report) [50] and provided further evidence about actual underground training mines and their advantages, the NSW Minerals Council’s views on training mines, the invitation by DCM for the joint venture involving the Doyles Creek area, and whether Xstrata may have considered bidding for the Doyles Creek area if it was conditional upon the establishment and maintenance of a training mine.

Mr Nicholas Papallo AO

50. Exhibit IM-5. I note that in evidence the author was referred to as Bob Gibbons, I presume on the basis of the witnesses’ familiarity with Mr Gibbons.

63. The transcript of the evidence of Mr Nicholas Papallo AO of 20 February 2017 was tendered. [51] Mr Papallo had been a solicitor for 51 years at the time of giving evidence. He was the principal of the firm NJ Papallo Lawyers until he passed the practice over to his son. He was appointed as chair by Mr Macdonald to the Minerals Ministerial Advisory Council (MMAC) in 2005 and remained in that role until 2011. [52]

    51. Exhibit TT.

    52. Exhibit TT – Tcpt, 20 February 2017, pp 902-903 (Papallo).

64. Mr Papallo gave evidence about the functions and key priority issues of the MMAC and various meetings held by the MMAC between November 2005 and August 2007.

Mr Richard Jones

65. The transcript of the evidence of Mr Richard Jones of 21 February 2017 was tendered. [53] Mr Jones was the Chief Executive Officer of the Westpac Rescue Helicopter Service (WRHS), also known as the Hunter Region SLSA Helicopter Rescue Service Ltd. He had been employed as the General Manager of WRHS since 1995. [54] WRHS was a not-for-profit organisation that received donations from public and private sponsors, including payroll deductions from coal mine employees facilitated through the CFMEU. [55] From time to time, the WRHS was used for mine rescues when there was an accident. Mr Jones knew Mr Maitland through the CFMEU and his visitations to the WRHS facilities in Broadmeadow.

    53. Exhibit TU.

    54. Exhibit TU – Tcpt, 21 February 2017, p 922 (Jones).

    55. Exhibit TU – Tcpt, 21 February 2017, pp 922-923 (Jones).

66. Mr Jones gave evidence about the letter of support provided by the WRHS to DCM, discussions about executing a memorandum of understanding, meetings between Mr Maitland and the not-for-profit organisations including WRHS in 2007, the WRHS General Manager’s Report dated 20 September 2007 which referred to the “strategy” in relation to the letters of support and the Community Partnership Agreement which was eventually executed between the WRHS and DCM.

Mr Paul Healey

67. The transcript of the evidence of Mr Paul Healey of 21 February 2017 was tendered. [56] Mr Healey was employed by Coal Services Pty Ltd (Coal Services). Coal Services was formed in 2001 under the Coal Industry Act2001 (NSW) as an amalgamation of the Joint Coal Board, Coal Mines Insurance and Mines Rescue. Coal Services was jointly owned by the NSW Minerals Council and the CFMEU with two directors from each organisation and two independent directors. [57] Mr Healey was the General Manager of the Mines Rescue division of Coal Services in 2008 which provided nationally accredited training programs including underground simulation and virtual reality training. [58] At the time of giving evidence he was the Manager of the Order 42 division of Coal Services which reviewed, audited and approved mine training plans. [59]

    56. Exhibit TV.

    57. Exhibit TV – Tcpt, 21 February 2017, p 968 (Healey).

    58. Exhibit TV – Tcpt, 21 February 2017, p 969 (Healey).

    59. Exhibit TV – Tcpt, 21 February 2017, p 967 (Healey).

68. Mr Healey provided evidence about the Mines Rescue training programs, a meeting in July 2008 where Mr Maitland discussed the possibility of Coal Services supplying services to DCM’s proposed training mine, his views on the DCM proposal at the time and the demand for training services within the industry in around 2007 and 2008.

Mr Jason Bartlett

69. The transcript of the evidence of Mr Jason Bartlett of 21 February 2017 was tendered. [60] Mr Bartlett was the senior media advisor to Mr Macdonald as the Minister for Primary Industries from late 2006 and was responsible for overall media communications in the Minister’s office. He worked closely with the junior media advisor, Lyndall Hilder (who was Lyndall Derrig at the time).

    60. Exhibit TW.

70. He provided evidence about the dinner at Catalina Restaurant on 15 December 2008 where the exploration licence was signed, the circumstances surrounding the preparation of the media release announcing the grant of the exploration licence and Government Gazettes about the grant.

Mr Archibald Tudehope

71. The transcript of the evidence of Mr Archibald Tudehope of 22 February 2017 was tendered. [61] Mr Tudehope started working as a miner from the 1970s in Mount Isa and was in the Australian Workers’ Union. When he moved to Collinsville, Queensland, in 1980, he became involved in the Queensland Collieries Union, now part of the CFMEU, Mining & Energy Division. Within that union, he held positions as Treasurer and President of the Lodge and later was on the Board of Management of the State division of the Union. He had also served on the Central Council, which he described as the Federal legislative body of that Union. [62] Mr Tudehope first met Mr Maitland in Collinsville when they were both involved in the Union in the 1970s. He maintained a friendship with Mr Maitland and assisted with his election to various roles in the Mining Division in Queensland. [63] Between 2007 and 2011, Mr Tudehope lived in China working as the director of a company that developed mine safety standards.

    61. Exhibit TX.

    62. Exhibit TX – Tcpt, 22 February 2017, p 1016 (Tudehope).

    63. Exhibit TX – Tcpt, 22 February 2017, p 1030 (Tudehope).

72. He gave evidence about discussions he had with Mr Maitland about the training mine proposal where he sought potential investors, the assistance he provided to Mr Macdonald’s daughter when she went to China, the relationship between Mr Macdonald and Mr Maitland and Mr Maitland’s commitment to improving mine safety.

Ms Lyndall Hilder

73. The transcript of the evidence of Ms Lyndall Hilder (formerly Ms Lyndall Derrig) of 22 February 2017 was tendered. [64] She was a media advisor for the Department of Planning in early 2007. Between 20 June 2007 and August 2009, she was a media advisor to Mr Macdonald as the Minister for Primary Industries.

    64. Exhibit TY.

74. Ms Hilder provided evidence of media inquiries about DCM in September 2008 and the circumstances surrounding the preparation of the media release announcing the grant of the exploration licence.

Mr James Chisholm

75. The transcript of the evidence of Mr James Chisholm of 23 February 2017 was tendered. [65] Mr Chisholm was a director of Fertoz, Atrum Coal and Ebony Energy. In 2007, he had a shareholding in ResCo and acquired businesses for ResCo.

    65. Exhibit TZ.

76. Mr Chisholm provided evidence about the discussions at a meeting at Rathmines on 15 January 2007 where a geologist, Dr Palese, identified the Doyles Creek area as being prospective for coal.

Mr Peter Coates

77. The transcript of the evidence of Mr Peter Coates of 27 February 2017 was tendered. [66] Mr Coates had been a mining engineer in the mining industry for approximately 50 years. He was the CEO of Xstrata Coal until December 2007 and the non-executive chair of Xstrata Coal from January 2008 to July 2009. [67] Around late 2005, Mr Macdonald asked Mr Coates to be a member of the MMAC. In 2006, Mr Coates became the chair of the MCA.

    66. Exhibit TAA.

    67. Exhibit TAA – Tcpt, 27 February 2017, p 1137 (Coates).

78. Mr Coates provided evidence on the role of the MMAC and the MCA, meetings of the MMAC, his views as at February 2006 on the existence of a skills shortage in Australia and interactions with Mr Maitland regarding the possibility of Xstrata Coal’s involvement in the DCM proposal.

Mr Anthony Maher

79. The transcript of the evidence of Mr Anthony Maher (also known as Tony Maher) of 21 February 2017 was tendered. [68] He took over the position of General President in the Mining and Energy Division of the CFMEU in August 1998 after Mr Maitland became Chair. Mr Maher had known Mr Maitland since the late 1980s and had dealt with Mr Macdonald on occasions when he was the Minister for Mineral Resources.

    68. Exhibit TAC.

80. Mr Maher provided evidence about the relationship between Mr Macdonald and Mr Maitland, discussions with Mr Maitland about the training mine proposal and the provision of a letter of support, and the CFMEU Mining and Energy Division Executive’s position on the training mine.

Dr Nicole Williams

81. The transcript of the evidence of Dr Nicole Williams of 27 February 2017 was tendered. [69] Dr Williams was relevantly the CEO of the NSW Minerals Council from July 2004 to November 2011. At the time of giving evidence, Dr Williams was also the CEO of the Plastics and Chemical Industries Association and General Manager of Marketing and Business Development and Procurement for Coal Procure Pty Ltd. She also held three non-executive directorships and was an Ambassador for the Australian Indigenous Education Foundation. Prior to that, she had worked for Esso Australia in industrial relations, the World Coal Institute in London as Director of Public Affairs, Shell in respect of coal trading, and Shell International Gas as Development Manager for Sub-Saharan Africa. She was also an accredited energy expert with the United Nations Economic Commission for Europe and has served on a number of national and international advisory boards for government, industry and science.

    69. Exhibit TAD.

82. She gave evidence about her past interactions with Mr Macdonald and Mr Maitland, the perspectives of directors and shareholders of a commercial mining company, the coal allocation process, the role and activities of the NSW Minerals Council, Coal Services, her understanding of the Doyles Creek training mine proposal, Mr Maitland and Mr Macdonald’s attempts to seek her support for the proposal as CEO of the NSW Minerals Council, the NSW Minerals Council Executive Committee meeting on 11 September 2008 to discuss the proposal and the skills shortage and concern for mine safety in the mining industry.

Mr Lawrence Ireland

83. The statement of Mr Lawrence Ireland dated 25 February 2015 [70] and the transcript of evidence given by Mr Ireland on 9 October 2017 [71] were tendered. (That evidence was not from the first trial against Mr Macdonald and Mr Maitland, but was given in other, unspecified, proceedings. Nor was the statement in evidence in the first trial.) Mr Ireland had spent 43 years working as a miner, including as a mine manager in several mines such as Baal Bone Colliery and the Teralba Colliery. He had also worked as an operations manager for Xstrata Coal in the 2000s and left at the end of 2007. He joined ResCo in late 2007 and assisted with putting together the March 2008 Doyles Creek application. [72] After working on the DCM project, he became General Manager of ResCo Underground Services and then re-joined Xstrata in March 2010. [73]

    70. Exhibit AE.

    71. Exhibit TAF.

    72. Exhibit TAF – Tcpt, 9 October 2017, p 735 (Ireland).

    73. Exhibit AE, p 13.

84. In his statement, he gave his estimation of the reserves in the Doyles Creek area and the bases for his calculations, his understanding of how the training facility and panels would operate, the circumstances of his joining ResCo, various meetings he attended in 2007 and 2008 about the project and his role in assisting in the identification and purchase of suitable land for the project, and his investment in DCM.

85. In 2017, he expanded further on the circumstances of his joining ResCo, his understanding of the nature of the Doyles Creek resource and the proposed training panels, and his contributions to the Doyles Creek application.

Mr Robert Cameron

86. The statement of Mr Robert Cameron dated 28 August 2012 was tendered. [74] Mr Robert Cameron was the non-executive chair of Centennial Coal Company Limited at the time of giving the statements. In 2008, he a member of the NSW Minerals Council Executive Committee, having previously been the Chair.

    74. Exhibit AF.

87. Mr Robert Cameron gave evidence about being approached by Mr Maitland to write a letter of support on behalf of Centennial Coal Company Limited in mid-2008, his views on establishing a mining school at the University of Newcastle, his views on the general training mine concept, the viability of the Doyles Creek proposal, his knowledge of other training mines and facilities and the skill shortage in the mining sector in 2008.

Mr Ian Macdonald

88. As noted above, Mr Macdonald’s evidence, given at the first trial, was tendered in the Crown case. [75]

    75. Exhibit TAE.

89. Mr Macdonald gave evidence on his various roles in Parliament, his understanding of ministerial duties, cabinet processes and the financial environment at the time, his relationship with Mr Maitland (including the assistance that Mr Maitland provided to his daughter), the circumstances surrounding his pre-selection for the Legislative Council and the Noble House meeting, his views on the pros and cons of DCM’s training mine proposal, the skills shortage in the mining sector in NSW and his request to the Department to look for other areas to release for competitive expressions of interest.

90. He was taken through the exhibits and gave evidence on the events leading up to, and the circumstances surrounding, the grant of the consent to apply for the exploration licence and the grant of the exploration licence to DCM. The key events included the meeting with Mr Maitland in January 2007 where the training mine was raised for the first time, the meeting with Mr Maitland and Mr Ransley at the Prime Restaurant in July 2007 and the alleged strategy in relation to the letters of support, his discussions with the University of Newcastle about establishing a Chair of Geoscience, the meeting with Dr Williams allegedly seeking support from the NSW Minerals Council, the meeting at the Nippon Club in November 2008, the signing of the exploration licence at Catalina Restaurant in December 2008, and events following the grant, such as the circumstances surrounding the media release, his conversation with Mr Rees where he allegedly said there was “negligible commercial value” in the mine and the representations he made about the grant in his letter to Alan Jones dated 3 February 2009.

671. Having regard to the above, it is difficult to determine the weight to be given on the emails. It is difficult, then, to come to any precise view of what Mr Maitland regarded the consent to apply to be worth. It is likely that he himself had no clear idea. Perhaps the most significant evidence is Mr Maitland’s decision not to acquire further shares when he had the opportunity around the time of the grant of consent to apply. Had it been expected that another company would have jumped at the opportunity to obtain the consent, and paid handsomely for it, it would have been, in theory (that is, subject to scrutiny it would have attracted), open to DCM to obtain the consent and then sell the company for the value of the consent, or later, the exploration licence. Even if immediate sale was not practicable, had this been the expectation it is likely that Mr Maitland would have found a way to take up the shares. I am, in the result, of the view that while Mr Maitland certainly believed the direct allocation was a benefit to DCM and to himself, I cannot ascribe to it a value based on his knowledge of bids for other resources such as Watermark, his “teaser” emails, or the price later obtained for a portion of his shares. Ultimately, I am unable to achieve any clarity beyond this.

15.8   Obtaining evidence of support to fulfil the conditions on the grant of consent

676. While the conduct of Mr Maitland relied upon in relation to count 2 was complete by 21 August 2008, it is convenient to consider the events based on evidence as admitted against and relevant to Mr Maitland following the grant of consent, before returning to consider whether count 2 has been proved. With respect to events following the grant of consent, it will be recalled that the grant was conditional on obtaining evidence of community and industry support.

15.8.1 Obtaining community support

677. On 26 August 2008, Mr Maitland attended a meeting, together with Mr Ransley, Mr Poole, representatives from WRHS, HVTC and members of the Jerrys Plains community. A representative of the University of Newcastle was to have been in attendance but was absent due to illness. Minutes of the meeting were tendered, [773] which Mr Maitland accepted as accurate. [774] Mr Maitland advised the meeting that Mr Macdonald had given DCM consent to apply for an exploration licence. He indicated his hope that this would be advertised over the next three to four weeks, and that there were 28 days for objections. He told the meeting that if DCM did not take on the area “someone else will, now that the area has been identified as bearing coal”. (Nothing new had, in fact, happened in this regard.) The minutes indicate that Mr Ransley said he felt that the Minister was supportive of DCM’s proposal. He indicated that DCM was willing to accept conditions assisting the community as part of the agreement with the government and that the “whole process is based on community support and approval leading to a binding agreement”. Mr Poole told the meeting there needed to be a commitment to the entire process and that the “mine has to be commercial”. He said a member of the community could be on the Board. Mr Alcock of WRHS and Mr Morris of the HVTC spoke about the benefits to their organisations.

     773. Exhibit A, p 622B.

     774. Tcpt, 6 October 2022, p 660 (Maitland).

678. On 23 September 2008, Mr Maitland emailed Mr Combet with a “Fact Sheet” on the project together with a draft letter addressed to Mr Macdonald, supporting the proposal, which he asked Mr Combet to consider. [775] Mr Combet was the Federal member for Charlton, and as I understand it, represented a community at least in the general vicinity of the proposed mine. The Fact Sheet indicated that DCM was seeking an exploration licence, that they were in “advanced discussions” with a number of community partners in relation to the establishment and operation of a training facility, to be separate from the commercial mine. It referred to the University of Newcastle, HVTC and the WRHS as community partners, and further indicated that it was proposed that “a portion of the profits from the mine will be distributed to the Jerrys Plains and wider community via a trust”. [776]

     775. Exhibit A, p 627.

     776. Exhibit A, p 628.

679. On the same day, 23 September, Mr Maitland emailed Vicki and Paul Nichols, the latter of whom was the president of the Jerrys Plains Mine Watch Committee with a draft of a letter addressed to Mr Macdonald indicating that the Committee had agreed to negotiate a memorandum of understanding with DCM based on which the community would be in a “position to support the establishment of the Training Facility and Mine at suitable venues in our area”. [777] Mr Nichols subsequently amended this draft to read that the committee would, when the agreement was finalised, be “in a position to consider our support for the establishment of the Training Facility and Mine at suitable venues in our area” (emphasis added), [778] before sending it directly to Mr Macdonald’s office on 7 October.

     777. Exhibit A, p 631.

     778. Exhibit A, pp 693-694.

680. There is no doubt that at the community meeting, Mr Maitland, Mr Ransley and Mr Poole were endeavouring to make their proposal attractive to the community. Mr Maitland appeared honest in his evidence that the community generally “were very welcoming” in the sense of being hospitable, but quite suspicious about any industry project that was going to be near their village”. [779] I would not conclude that Mr Maitland and his fellow directors were not genuine in their attempt to engage the community at this meeting, although the position put to the meeting appears to have somewhat misrepresented matters. Similarly, with respect to the attempt to obtain written agreement with the community committee and with respect to the letter from Mr Combet (and the obtaining of letters from various other persons included in the application). With respect to Mr Combet’s letter, it might be noted that the draft was amended to make clear that the training facility would be of value “in the event that” the mine was approved. It appears Mr Combet was careful not to suggest that the mine should be approved for the purpose of establishing a training facility.

15.8.2 Obtaining evidence of industry support

779. Tcpt, 6 October 2022, p 660 (Maitland).

681. In an attempt to satisfy the condition to demonstrate broader industry support, the application included letters, which have been discussed in the context of Mr Macdonald.

15.8.3   Conclusion in relation to satisfaction of the conditions on the grant of consent

682. The Crown submitted that the letters were deficient in addressing the requirement in the letter of consent to provide indication of industry and wider community support for DCM’s proposal, and that Mr Maitland must have therefore known that the requirement for such indication was not genuine.

683. Mr Combet’s care in editing the draft to clarify he was not supporting the establishment of the mine, but rather, the value of training in the event that it was established, highlights the shortcoming of letters from other participants as previously discussed. That is, that no one would deny the provision of training facilities was a good thing, particularly if there was perceived to be a skills shortage.

684. While Mr Combet, Mr Hickey and Mr Coombs represented their electorates, arguably the most significant representative body with respect to the local community was the Jerrys Plains Community Mine Watch Committee. (Without intending any disrespect, I note here that it is difficult to see that any real weight could be given to letters such as those from the solicitors acting for DCM.) As noted above, Mr Nichols, as President, provided a letter that fell well short of unqualified support. While there is no evidence Mr Maitland received Mr Nichols’ very guarded letter, even if he had not, it must have been apparent to him that DCM had not received the support he had sought.

685. With respect to industry, Mr Maitland accepted there were more than a dozen individual coal producers in the Hunter Valley and elsewhere in New South Wales. [780] Further, while the application included letters from Xstrata, Donaldson Coal, Felix Resources, United Collieries and Hydromining, these had all been provided prior to the granting of consent and did not demonstrate any support additional to that demonstrated in the original application (despite Mr Maitland’s evidence to the contrary). [781]

     780. Tcpt, 7 October 2022, p 685 (Maitland).

     781. See Tcpt, 7 October 2022, p 685 (Maitland).

686. I would accept that Mr Maitland, through his engagement in community consultation, appeared to be taking the condition on the grant of consent to apply, to demonstrate community support for the proposal, seriously. I would also accept Mr Maitland’s evidence that, although they engaged in significant debates in the beginning, the outcome may have been that if there was to be a mining operation, the community preferred DCM. [782] But that is not the same thing as support for the proposal as the Jerrys Plains Mine Watch Committee’s response demonstrates. Subject to the representativeness of that committee (which did not necessarily support the mine), the process was inadequate as a means of obtaining an objective understanding of community and industry support. That the process was not rigorous does not necessarily mean that Mr Maitland was aware that Mr Macdonald was engaging in misconduct and intended that he do so. It is a matter that may, and perhaps should have, caused Mr Maitland to be suspicious. It is certainly a process that can be questioned in hindsight. While less convincing, it is also consistent with Mr Maitland believing that Mr Macdonald had a genuine belief as to the benefits of a training mine and required very little more to justify his decision. This matter falls to be considered with the other evidence.

     782. Tcpt, 7 October 2022, p 683 (Maitland).

15.9   The application for and granting of the exploration licence

687. The next major event in the chronology was the lodging of the application for the exploration licence on 29 September 2008. This has been discussed above. As there noted, the application was accompanied by the various letters of support “as requested by the Minister”.

688. The events which followed, up to and including, the grant of the exploration licence have largely been dealt with above in relation to Mr Macdonald. One part of the evidence particular to Mr Maitland, is an email from Mr Maitland to Mr Ransley on 11 December 2008 in relation to a letter from the Department addressed to Mr Lewis, apparently handed to Mr Poole the previous day. [783] The letter indicated that the Department had registered the application, and advised that notice of the application must be advertised, and included details with respect to the requirements. The letter indicated that “no exploration licence will be granted until satisfactory copies of advertisements are lodged with the Department”. Mr Ransley emailed Mr Maitland, Mr Barnes, Mr Poole and copied Mr Lewis, advising that Mr Lewis was handling the issue and would not be contacting the Department “until after the deed is signed on Monday [15 December] as it may cause a commotion in the DPI ranks re timing”. [784] The email then raised issues with respect to the payment for the security deposit. Mr Maitland responded, “I agree the least we do until we sign up the better”. [785] The general tenor of the emails confirms Mr Maitland’s understanding, and that of Mr Ransley, that the Department was not supportive of their proposal. In fact, he acknowledged in his evidence that he was aware that the DPI was always opposed to a direct allocation to DCM, including at this stage. [786] It is not, however, clear as to what the issue was with timing specifically, particularly given relevant documentation was being prepared by the Department. It may have been a reference to the exploration licence being granted prior to the lodging of copies of advertisements but this is not explicit. Ultimately, it is not clear from Mr Maitland’s response that he had read the detail of the Department’s letter (including the advertising requirement) as opposed to simply agreeing with the general strategy of leaving well enough alone. The response does, however, at least sustain the inference that Mr Maitland had a clear appreciation that Mr Macdonald’s actions in supporting the proposal were at odds, and had remained at odds, with the view of the Department.

     783. Exhibit A, p 798.

     784. Exhibit A, p 802A.

     785. Exhibit A, p 802A.

     786. Tcpt, 7 October 2022, p 691 (Maitland).

689. There is little further evidence of direct relevance to Mr Maitland. An email from Mr Maitland to Mr Lewis, copying Mr Ransley, Mr Poole and Mr Barnes on 12 August 2009 demonstrates that work had been put in to establish the Doyles Creek Trust, and to that end there had been monthly meetings with the University of Newcastle, HVTC and the WRHS. [787] The email stresses the need to finalise the establishment of the trust in the light of political murmurings with the potential for this to cause Mr Macdonald to be replaced as Minister. Mr Maitland states that it would be “best for us if [Mr] Macdonald remained the Minister” given his support for the project and that “a new Minister may want to review all parts of the [project] especially those that have received media coverage of late”. It is clear that Mr Maitland believed that a review may have negative results. This, however, is not altogether surprising given his awareness that the proposal had consistently been opposed by the Department, and the grant of the exploration licence had, by this time, attracted negative publicity. The evidence is consistent with earlier evidence but does not, in any material way, add to it.

15.10    Conclusion in relation to count 2 against Mr Maitland

787. Exhibit A, p 866I.

690. There is no doubt that Mr Maitland was instrumental in encouraging Mr Macdonald to grant the consent to apply. He did not dispute this, and indeed stressed, that his obligations, as a director, required him to act in the best interests of the corporation, which, in this instance, required him to pursue the application. Further, as noted above, Mr Maitland did accept that the other directors of ResCo saw him as someone who could influence decisions such as those required of Mr Macdonald. Indeed, it is no surprise that Mr Maitland was, in fact, trying to influence Mr Macdonald. The following questions and answers are of interest: [788]

     788. Tcpt, 5 October 2022, p 567 (Maitland).

“Q.    That was how you represented yourself to ResCo, wasn't it, that you were someone who could influence politics?

A.    I think they thought that. That was one of the reasons they approached me. And, you know, my record shows that both sides of politics had invited me to be - to participate in processes which may very well help. …

Q.    You had a capacity to influence politics?

A.    Well, I would hope so.

Q.    And that's what you were doing in this instance. You were influencing the minister in the exercise of his discretion?

A.    Well.

Q.    Seeking to do that?

A.    Well, the submission is seeking to influence the minister. I mean, that's what the submission is about. We are trying to - we are trying to get a direct allocation. We can't get a direct allocation if we can't influence the minister. I mean, that's the logic.”

691. Trite as the above evidence is, it highlights an issue at the core of the case against Mr Maitland. It was entirely open to him, and indeed expected of him, to do everything lawfully within his power to seek to influence Mr Macdonald to make a decision favourable to himself and DCM. The qualification, “lawfully within his power”, of course means that he could not seek to influence Mr Macdonald through a bribe, or by conspiring with him or otherwise engaging in some form of pre-concert with him. Here, the Crown alleged a form of agreement (without expressly describing it as such) based on the “strategy” derived at the Prime Restaurant. I have, above, analysed the evidence in this regard and am unable to find a strategy of the nature alleged by the Crown was formed between the accused at or around the time of the Prime Restaurant lunch. This is not fatal to the Crown case, but it does bring its proof into focus.

692. There is no issue that Mr Maitland actively encouraged Mr Macdonald to grant the consent and the exploration licence. What must be proved by the Crown is that Mr Maitland, in doing so, knew that Mr Macdonald was engaging in misconduct and intended that he do so. This, then, begs the question, at what point in the process of lawful persuasion does the inference arise that Mr Maitland must have been aware that any approval granted by Mr Macdonald in response to the proposal must have been driven by a motivation to favour Mr Maitland, such that the same decision would not otherwise have been made? The Crown’s answer to this question is that Mr Maitland must have known that the approvals of the application for consent to apply, and the subsequent exploration licence, were “too good to be honest” despite his genuine and long-standing belief in the benefits of a training mine. Care is required before accepting such an argument. Apart from anything else, it is a natural human tendency to believe what we want to believe, and to be stubborn in shifting from any such belief. False pretenders know this only too well. What evidence is there, then, to exclude the possibility that Mr Maitland’s belief in the merits of his proposal, and his powers of persuasion, diverted him from the realisation that the only way Mr Macdonald could approve his proposal would be if Mr Macdonald was driven by a desire to favour him?

693. It is plain that the Department opposed the proposal throughout the entire process. Mr Maitland was aware of this and acknowledged it in his evidence. [789] He was also aware of the contents of the Department’s briefing note of 22 February 2007 which raised a number of particular issues. It is also the case that in excess of a year had passed between that briefing note and DCM’s application in March 2008 (and a further period prior to the grant of consent to apply in August 2008). During that time Mr Maitland sought to address issues that had been raised in the briefing note. The proposal submitted in March 2008 was very much more substantial than the 15 February 2007 submission. While the Department remained opposed, there is no evidence that Mr Maitland had access to the Department’s briefing notes provided to Mr Macdonald subsequent to the March application. Mr Maitland had long believed in the merits of an underground training mine. He also believed that the proposal addressed what had in the past been seen as a major, if not insurmountable, stumbling block to establishing such a mine – that is, its funding.

     789. See, for example, Tcpt, 7 October 2022, pp 674, 691 (Maitland).

694. Mr Maitland was, no doubt, aware that the decision by Mr Macdonald contrary to the advice of his Department was favourable to him. But he was also aware that it was entirely within Mr Macdonald’s power to exercise his discretion contrary to the Department’s advice. Insofar as there was a difference between the Department and Mr Maitland it was, to some extent, a philosophical one. That is, putting to one side the details of the proposal, it was entirely reasonable that Mr Macdonald might prefer Mr Maitland’s philosophical position to that of the Department. The Department’s opposition to the March 2008 proposal was, of course, based on the detail of the proposal. The question becomes whether that detail, rather than simply the Department’s opposition, was such that I can infer that Mr Maitland intended that Mr Macdonald would engage in misconduct.

695. The case against Mr Maitland is, to a large extent, as I have indicated above based on the submission that the approval was “too good to be honest”. In part, this was based on a contention that he must have known that the resource could have been put to competitive tender with a requirement to establish an underground training mine. As a matter of objective fact, it is true that such a process could be undertaken. However, a good deal of effort had gone into establishing relationships with the HVTC, WRHS and the University. Mr Maitland’s involvement and his relationship with Mr Macdonald, which was, at the least, a friendly working relationship, gave him reason to think that Mr Macdonald would trust the genuineness of any training mine set up under Mr Maitland’s watch. I am inclined to think it is at least possible that Mr Maitland regarded DCM’s proposal as unique or otherwise did not turn his mind as to whether a competitor, even if willing to establish a training mine, could offer the same confidence as to its commitment to such a facility.

691. Mr Maitland’s awareness of the scarcity of resources in the Hunter Valley, the booming coal market, and the competitive processes that had resulted in significant bids with respect to other areas meant that he understood that direct allocation was a significant benefit to DCM. This understanding was also reflected in his attempts to attract investors. However, as I have found above, it is difficult to know what he understood the value to be. More particularly, it is difficult to know what he believed Mr Macdonald would have understood the value to be.

692. It is clear to me that while Mr Maitland was committed to the idea of a training mine, DCM, and derivatively Mr Maitland, employed the promise of the training mine as a selling point, or in the blunt terms used within DCM, “spin”, to obtain a direct allocation of a commercially valuable resource. It is, however, less clear that Mr Maitland believed that Mr Macdonald had not been genuinely taken in by the “spin”. Mr Macdonald was both generally in favour of mining and concerned with health and safety, matters that were, no doubt, known to Mr Maitland. While there is evidence that Mr Maitland sought to play down the commercial part of the mine to persons such as Dr Williams and to the journalist Mr Kirkwood of Newcastle Herald, [790] he may have done so on the basis that these individuals were, for different reasons, unlikely to be sympathetic to the proposal.

     790. See article at Exhibit A, pp 501-502.

693. Nonetheless, it remains the case that Mr Maitland received something he knew to be a significant benefit. At the time the consent to apply was granted, Mr Maitland knew that the support of the NSW Minerals Council had not been, and was not going to be, obtained. Unlike the case with respect to Mr Macdonald his awareness of other investigations or processes that might have taken place is not clear. There is room for suspicion and perhaps grave suspicion. But what ultimately is required is an analysis of the inferences able to be drawn from the objective evidence, the strength of those inferences, together with the evidence relied on by Mr Maitland, including his own, seeking to rebut those inferences. Ultimately, as I have discussed above, a significant attenuating force on the strength of adverse inferences available against Mr Maitland is that unlike Mr Macdonald, the decision was not his responsibility. The result is it is more difficult to conclude that matters that could have and perhaps should have occurred to him, necessarily did occur to him. As troubling and unconvincing as the process of obtaining letters of support in place of independent investigation for the allocation of a potentially valuable resource may be, I am unable to exclude the possibility that Mr Maitland unquestioningly accepted the process the Minister put in place.

694. I am left with a reasonable doubt that Mr Maitland intended that Mr Macdonald’s driving force in granting DCM consent to apply for an exploration licence would be to favour Mr Maitland and DCM, such that the decision would not have been made but for this purpose. I am therefore not satisfied beyond reasonable doubt that Mr Maitland intended that Mr Macdonald would misconduct himself in granting DCM consent to apply for an exploration licence on or about 21 August 2008. It follows that Mr Maitland must be acquitted with respect to count 2 on the indictment.

15.11   Conclusion with respect to count 4 against Mr Maitland

700. The fact that I am not satisfied in relation to count 2 does not produce any automatic result in relation to count 4. It is necessary to have regard to the evidence of events subsequent to the grant of consent, including that grant of consent in the present case was unusual in that it imposed conditions. It is not clear, however, whether Mr Maitland understood this to be unusual. As I have indicated above, I accept that he made a genuine effort to meet those conditions. The evidence of industry support lodged with the application did not meaningfully add to the material in the application for consent. If anything, the consent letter noted that the NSW Minerals Council would soon advise its position, and Mr Maitland was aware that the Council had resolved not to support the proposal. As I have earlier indicated, that did not amount to outright opposition. It is, nonetheless, troubling that there was little to be said for this condition having been met.

701. With respect to the provision of evidence of community support, there was a greater volume of material but, for the reasons discussed above, some doubt about its quality. That is particularly so in the light of the revised response of the Jerrys Plains Mine Watch Committee sent directly to the Minister’s office on 7 October 2008. There is, however, no evidence that Mr Maitland was aware of the response received by Mr Macdonald. Mr Maitland’s perspective may then have been that the Minister had received only favourable letters. As I have said, the process was problematic, but it is more difficult to find that it redounds to the detriment of Mr Maitland’s case, at least in the same way as it does with respect to Mr Macdonald.

702. While, again, it is easy to determine what Mr Maitland could have, and perhaps, should have, known, it is more difficult to be satisfied of his knowledge of Mr Macdonald’s misconduct beyond reasonable doubt. I am left with a doubt that Mr Maitland intended that Mr Macdonald would grant the exploration licence on 15 December 2008 and that his driving force fordoing so would be to benefit Mr Maitland such that but for that purpose the licence would not have been granted. It follows that I am not satisfied that Mr Maitland intended that Mr Macdonald would misconduct himself in granting the exploration licence. That being the case, I am not satisfied of one of the essential elements of the offence charged against Mr Maitland and he must be acquitted with respect to count 4 on the indictment.

703. For completeness, I note that I see no inconsistency between the findings I have made with respect to Mr Macdonald and Mr Maitland. Not only was the evidence admitted against each not the same, as I have been at pains to point out, the perspective from which each approached the process, as a result of their particular responsibilities was very different. It might be asked “why did Mr Macdonald act as he did if he was not put up to it by Mr Maitland?” There was no onus on Mr Maitland to answer that question. The simple fact is the evidence against Mr Macdonald satisfies me beyond reasonable doubt that he committed the offences charged against him. With respect to Mr Maitland it does not.

Orders

704. With respect to the indictment dated 6 February 2017, I make the following orders:

1. Ian Michael Macdonald, on count 1, that on or about 21 August 2008 in Sydney in the State of New South Wales, then holding public office as Minister for Mineral Resources you did in the course of and connected to your public office wilfully misconduct yourself by granting Doyles Creek Mining Pty Ltd consent to apply for an exploration licence under the Mining Act 1992 (NSW), without reasonable cause or justification, 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, I find you guilty.

2. John William Maitland, on count 2, where it is alleged that with respect to count 1 on which I have found Mr Macdonald guilty, you did beforehand aid, abet, counsel and procure the commission of the offence, I find you not guilty.

3. Ian Michael Macdonald, on count 3, that on or about 15 December 2008 in Sydney in the State of New South Wales, then holding public office as Minister for Mineral Resources you did in the course of and connected to your public office wilfully misconduct yourself by granting to Doyles Creek Mining Pty Ltd Exploration Licence No. 7270 under the Mining Act, without reasonable cause or justification, 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, I find you guilty.

4. John William Maitland, on count 4, where it is alleged that, with respect to count 3 on which I have found Mr Macdonald guilty, you did beforehand aid, abet, counsel and procure the commission of the offence, I find you not guilty.

705. Mr Maitland, you are discharged on the aforementioned indictment.

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Endnotes

Decision last updated: 20 December 2022