R v Macdonald; R v Maitland (No 4)

[2017] NSWSC 723

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Macdonald; R v Maitland (No 4) [2017] NSWSC 723
Hearing dates:	16 February 2017
Date of orders:	28 February 2017
Decision date:	16 February 2017
Jurisdiction:	Common Law - Criminal
Before:	Adamson J
Decision:	Question rejected
Catchwords:	Evidence – relevance – admissibility
Category:	Procedural rulings
Parties:	Regina Ian Michael Macdonald (Accused) John William Maitland (Accused)
Representation:	Counsel: M McHugh SC/ P English (Crown) M Johnston SC (Accused Macdonald) D Jordan SC/ E Kerkyasharian (Accused Maitland)     Solicitors: Solicitor for Public Prosecutions Horton Rhodes Lawyers (Accused Macdonald) Bob Whyburn Solicitor (Accused Maitland)
File Number(s):	2015/59940; 2015/59990

Judgment

1. Mr Jordan, on behalf of Mr Maitland, asked a question of Ms Maloney, asking whether she was aware that in 2016 the New South Wales Government had paid $220 million to buy back an exploration licence which had been granted by the Minister some years before to BHP Billiton in respect of an area known as Caroona.

2. I apprehend that the amount of $220 million was arrived at because it was agreed or adjudged to be just compensation for the resumption by the State of the exploration licence.

3. An objection was taken by the Crown to that question on the basis of relevance. Mr Jordan submitted that the question was relevant on the basis that it is part of the Crown case that the additional financial contributions obtained by the State Government for exploration licences granted in respect of Caroona and Watermark, following a process of expressions of interest, were indicative of the public interest involved in allocating licences after such a process. Mr Jordan contended that it would be misleading for the Crown to rely on the figure of $91 million paid in respect of Caroona, if I were, by rejecting the question, to deprive the jury of the information that, in subsequent years, the public had to pay $220 million to acquire the exploration licence from BHP Billiton in respect of Caroona.

4. Mr Crown argued that the evidence sought to be adduced on behalf of Mr Maitland was irrelevant because the Crown case is that the amounts paid for exploration licences in respect of the Caroona and Watermark areas indicate the extent to which additional financial contributions can be gained by the State following a competitive expression of interest process. This process is to be distinguished from the process of direct allocation, which was the means adopted by the accused Mr Macdonald, as Minister, in relation to the acts which are the subject of the charges in the indictment.

5. I am not persuaded that what occurred by way of sequel to the grant in respect of the Caroona area, namely a subsequent resumption, years later, of that exploration licence for $220 million, is relevant on any basis identified by Mr Jordan, or otherwise. I consider that the answer to the question would not only be inadmissible as being irrelevant, but it might also have the tendency to confuse the jury as to the real issues in this trial.

6. Accordingly, the question is rejected.

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Amendments

30 March 2023 - Publication restriction removed – judgment republished

Decision last updated: 30 March 2023