R v Maitland (No 5)

[2017] NSWSC 167

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Maitland (No 5) [2017] NSWSC 167

Hearing dates:

28 February 2017

Date of orders:

28 February 2017

Decision date:

28 February 2017

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

Refuse applications for directed verdicts of acquittal and application for Prasad direction

Catchwords:

STATUTORY INTERPRETATION – whether consent under s 13(4) of the Mining Act 1992 (NSW) was given – importance of wording – no statutory provisions imposing formal requirements

 

CRIMINAL LAW – application for a directed verdict on ground that letter could not amount to consent as a matter of law – mixed questions of law and fact – question whether letter capable of constituting consent under s 13(4) question of law – question whether evidence taken at its highest could amount to consent question of law – whether letter amounts to consent question of fact for jury

 

CRIMINAL LAW – no case submission by alleged accessory before the fact – Crown obliged to prove that accessory knew the requisite mental state of alleged principal offender – evidence taken at its highest sufficient

 CRIMINAL LAW – Prasad direction – inappropriate in complex case where evidence comprised substantial quantity of documents to which the jury had not yet been taken

Legislation Cited:

Interpretation Act 1987 (NSW), s 34
Mining Act 1992 (NSW), ss 13, 14, 15, 16, 22, 368

Cases Cited:

R v Dickson; R v Issakidis (No. 10) [2014] NSWSC 1482
Doney v The Queen (1990) 171 CLR 207
Giorgianni v The Queen (1985) 156 CLR 473
May v O'Sullivan (1955) 92 CLR 654
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Obeid v Australian Competition and Consumer Commission (2014) 226 FCR 471; [2014] FCAFC 155
R v Prasad (1979) 23 SASR 161
Seymour v R [2006] NSWCCA 206

Category:

Procedural rulings

Parties:

Regina
John William Maitland (Accused)

Representation:

Counsel:
M McHugh SC/P English (Crown)
D Jordan SC/ES Kerkyasharian (Accused)

  Solicitors:
Solicitor for Public Prosecutions
Bob Whyburn Solicitor (Accused)

File Number(s):

2015/59940; 2015/59990

Judgment

Introduction

1. At the close of the Crown case, Mr Jordan SC, who appears with Mr Kerkyasharian on behalf of the accused Maitland, made the following applications:

1. For a directed verdict in relation to count 2 on the basis that the Crown cannot, as a matter of law, prove the alleged underlying conduct: namely, that the accused Macdonald granted consent to Doyles Creek Mining Pty Ltd (DCM) to apply for an exploration licence on or about 21 August 2008;

2. For a directed verdict in relation to counts 2 and 4 on the basis that the evidence, taken at its highest, would be insufficient to establish the accused Maitland’s knowledge of an essential fact: namely the mental element of the charges against the accused Macdonald;

3. In the alternative to (2), for a Prasad direction.

2. Before addressing these applications, I propose to set out, where relevant, the indictment, and also the relevant legislative framework.

The indictment

3. The accused Maitland is charged with being an accessory before the fact to two offences with which the accused Macdonald is charged. The charges against the accused Macdonald are as follows:

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.

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.

4. Count 2, against the accused Maitland, charges that he, in respect of the offence in count 1:

“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.”

5. Count 4, against the accused Maitland, charges that he, in respect of the offence in count 3:

“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.”

6. For reasons which will be separately published, the current draft of the elements of the offence against the accused Macdonald are as follows:

In order to prove charge 1 against the accused, the Crown must prove beyond reasonable doubt that on or about 21 August 2008:

1.   The accused was a public official.

A Member of the Legislative Council of New South Wales is a public official.

A Minister of the Government of New South Wales is a public official.

2.   The accused granted consent to Doyles Creek Mining Pty Ltd to apply for an exploration licence under the Mining Act 1992 (NSW).

3.   In granting consent the accused acted in the course of, or in connection with, his public office.

4.   In granting consent the accused misconducted himself.

To prove this element the Crown must prove beyond reasonable doubt that in granting such consent:

a.   the accused was substantially motivated by the desire to confer a benefit on John Maitland and Doyles Creek Mining Pty Ltd; and

b.   the accused was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales.

5.   The accused’s misconduct was wilful.

To prove this element the Crown must prove beyond reasonable    doubt that the accused knew either that:

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

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

6.   The accused granted such consent without reasonable cause or justification.

7.   The accused’s conduct was misconduct that 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.

The first application: Whether the letter dated 21 August 2008 from the accused Macdonald to the accused Maitland amounts to a consent under s 13(4) of the Mining Act 1992 (NSW)

7. The first of the accused Maitland’s applications is for a directed verdict on the basis that the Crown cannot prove the accused Maitland’s guilt of the second count, since it cannot prove, as a matter of law, that the accused Macdonald granted consent to DCM to apply for an exploration licence under the Mining Act 1992 (NSW) on or about 21 August 2008.

8. To determine this application it is necessary to consider the relevant statutory framework. It is also necessary, including for the purposes of determining the future conduct of the trial, if a case to answer is found, to consider whether the question raised by Mr Jordan is a pure question of law (and therefore a matter for me as the tribunal of law), or whether it also contains matters which are to be determined by the jury as the tribunal of fact.

Relevant legislative provisions

9. Part 3 of the Mining Act 1992 (NSW) (the Act) provides for Exploration Licences. Division 1 makes provision for applications and tenders. Section 13 of the Act provides for applications for exploration licences. Section 13(4) provides that an application (for an exploration licence) that relates to land within a minerals allocation area may not relevantly be made without the consent of the Minister. In the Dictionary to the Act “mineral allocation area” is defined as a mineral allocation area gazetted under s 368. By notice published in the Government Gazette on 14 December 2007 the Minister (the accused Macdonald) ordered that the whole of New South Wales was constituted a Mineral Allocation Area for coal pursuant to s 368. The effect of this order was that no exploration licence with respect to coal could be applied for without Ministerial consent.

10. There are no formal requirements in s 13(4) for the giving of consent. Section 14 concerns “invitation for tenders” and applies only in relation to allocated minerals in land within a mineral allocation area. Section 14(2) empowers the Minister to invite tenders by published notice. The requirements for such invitations are set out in s 14(3). Section 15 provides for tenders for exploration licences, in response to invitations issued under s 14, and requires particulars of the financial resources available to the tenderer, the amount to be spent on prospecting and other matters. Section 16 provides that the Minister may require an applicant to provide further information “in connection with the application”, including information about the control of companies not registered in New South Wales.

11. The evidence in the trial indicates that the procedure of invitation for tenders contemplated by s 14 was not used by the Minister. Accordingly, the requirement for particulars to be given in s 15 was not applicable in terms. The Act does not restrict that the giving of consent to apply for an exploration licence under s 13(4) to circumstances where the procedure in ss 14 and 15 (an invitation published in accordance with s 14 and resultant tenders being lodged in accordance with s 15) is used. The procedure which appears to have been used in the present case is that DCM requested consent under s 13(4) to apply for an exploration licence, there having been no previous invitation issued under s 14.

Whether consent was given to DCM to apply for an exploration licence by the letter dated 21 August 2008

The document said to constitute consent

12. The letter relied on by the Crown as constituting consent is set out in full below:

John Maitland

Executive Chairman

Doyle’s Creek Mining Pty Ltd

Suite C2

1 Honeysuckle Dr

NEWCASTLE NSW 2300

Dear Mr Maitland

Thank you for your letter and submission of 18 March 2008 concerning the proposed Doyles Creek Training mine located near Jerry’s Plains.

I am advised that the University of Newcastle, the Australian Council of Trade Unions, the Westpac Rescue Helicopter Service along with several mining companies have given their support to your proposal. I’m also advised that the NSW Minerals Council is currently considering the proposal and I expect their advice shortly.

I am aware that a number of their members have already indicated their support, and that the Minerals Council of Australia has recently renewed their call for safer work environments in the mining industry and has forecast a significant shortfall in skilled mining industry workers over the next 12 years at a time when Australia is experiencing strong growth in the mining sector.

Therefore a proposal such as yours provides a real opportunity to address any potential skill shortages in this area while continuing to strengthen and boost our important regional economies.

In order to progress your proposal I am pleased to invite Doyle’s Creek Mining Pty Ltd to apply for an exploration license over the area outlined in the submission subject to the provision of a supplementary submission outlining in detail the industry and wider community support for such a proposal.

Any consent that is finally given will be made under the Government’s Guidelines for Allocation of Future Coal Exploration Areas (copy attached) and any future mining development will be subject to a financial contribution as per the table in the Guidelines.

The New South Wales Government recognises the importance of the mining industry to our state, both in generating employment and in being the single largest export income contributor.

Yours sincerely

IAN MACDONALD MLC

13. I understood Mr Jordan to accept that the letter dated 18 March 2008 referred to in the first paragraph was an application for consent to apply for an exploration licence.

14. Mr Jordan argued that when one reads the third to last and penultimate paragraphs of the letter, it is clear that the Minister did not purport to give consent to DCM to apply for an exploration licence. He contended that, although the accused Maitland was invited to apply for a licence, the invitation was conditioned by the requirement that a supplementary submission be provided, thereby indicating that no actual consent was given in the letter of 21 August 2008 itself. He argued further that the reference to consent in the penultimate paragraph is prospective and relied on this matter as a powerful indication that no consent was actually given on 21 August 2008.

15. The Crown submitted that the Minister ought be taken to have granted consent for DCM to apply for an exploration licence by the third to last paragraph, where he invites to DCM to apply. The Crown contended that the reference to consent in the penultimate paragraph ought be read as a reference to consent to an exploration licence being granted at a future date, after the application for such a licence has been submitted and assessed.

Consideration

16. I note for completeness that, in the course of oral argument, I raised the question whether the consent, if it be such, in the third to last paragraph, ought be construed as outright consent, followed by a request for information; or whether it ought be construed as conditional consent subject to a condition subsequent (provision of a “supplementary submission outlining in detail the industry and wider community support for such a proposal”). Mr Jordan did not adopt either construction and did not argue that, if it was the latter, the condition was void for uncertainty and could not be severed, thereby rendering the consent itself invalid. Although the matter was not advanced by any party, having raised the issue, I consider, without the benefit of argument, that the better view is that whatever consent that was given (as to which, see below) was not, in substance, conditional consent, although its wording suggested that it was. In effect, the words “subject to the provision of a supplementary submission outlining in detail the industry and wider community support for such a proposal” amount, in my view, to a request for further information pursuant to s 16 of the Act. I do not regard s 16 as limiting the Minister’s power to require further information prior to the grant of that for which the applicant has applied, which in this case was consent to apply for an exploration licence.

17. The basis for the accused Maitland’s application was, as set out above, that the letter did not amount to consent given by the accused Macdonald pursuant to s 13(4). As the indictment did not allege that the accused Macdonald purported to give his consent, but rather that he granted consent, the charge on the indictment is bad if no consent was, as a matter of law, given.

18. Where a statute does not impose formal requirements on the doing of an act under a particular provision, the question whether an act amounts to an exercise of the power depends, in part, on the statutory context and purpose of the provision. Section 13(4), in effect, imposes an additional requirement on applicants for certain exploration licences. Regard may be had to extrinsic material to discern statutory purpose, which is relevant to the construction of a statutory provision: s 34 of the Interpretation Act 1987 (NSW). I have considered the Explanatory Memorandum to the Act as well as the Second Reading Speech, neither of which provides assistance as to the purpose of requiring the Minister’s consent before an application for an exploration licence for a mineral within a mineral allocation area can be made.

19. Some guidance can, however, be obtained from the context in which s 13(4) appears. Section 13 is contained within Division 1: Applications and Tenders of Part 3: Exploration Licences. Sections 14 and 15, which are also within Division 1, contemplate a tender process in which applicants for consent are obliged to furnish information about their capacity (both technical and financial) to undertake prospecting and exploration. The wording of these sections tends to suggest that the Minister’s consent is required for exploration licences relating to particular areas because of the desirability of a preliminary assessment being made of such capacity before an exploration licence is granted. Although there is no statutory requirement for an application for consent under s 13(4) to address the matters made mandatory by s 15 when tenders are submitted in response to an invitation under s 14, such matters, as pertaining to the subject-matter, scope and purpose of the Act, would be relevant to a grant of consent under s 13(4): Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 40 per Mason J.

20. I was not referred to any judicial consideration of the requirement for consent imposed by s 13(4). It was briefly considered by the Full Federal Court (Allsop CJ, Mansfield and Middleton JJ) in Obeid v Australian Competition and Consumer Commission (2014) 226 FCR 471; [2014] FCAFC 155 at [14], [18] and [37] (which dealt with factual matters); and [6] (which dealt with the declaration relating to the minerals allocation area); and [17] where the Court said:

It is to be observed, however, that the Mining Act does seem to envisage (if the tender process was not adopted) two separate decisions — the Minister's consent under s 13(4), and a separate determination on the application for an exploration licence: see s 22. If the tender process was adopted, the successful tenderer or tenderers would then be granted the exploration licence: see s 23.

21. The procedure adopted by the Minister in the present case was to give consent pursuant to s 13(4) and to grant an exploration licence under s 22 subsequently. The availability of this procedure would seem to follow, from the circumstance that the tender process in ss 14 and 15 is not mandatory, that the Act authorises the grant of an exploration licence in respect of a minerals allocation area in this way.

22. Because the evident purpose of s 13(4) is merely to control whether a person can apply for an exploration licence, there is no particular form of words required. For this reason it does not appear to me to be of any particular moment that DCM was “invited” to apply for an exploration licence, as opposed to the Minister informing DCM that he had given his “consent” to such an application. Nor do I consider the reference to “consent” in the penultimate paragraph to be a reference to the consent under s 13(4) to apply for an exploration licence. In the context of the letter it appears to me to be tolerably clear that the word “consent” in the penultimate paragraph is a reference to consent, if given, to the exploration licence for which DCM has been invited to apply. For reasons set out above, I do not consider that the consent was a conditional one, although it was expressed in such terms.

23. Mr Jordan submitted that it was a pure question of law whether the letter of 21 August 2008 amounted to consent pursuant to s 13(4) of the Act. I reject this submission. In my view, the question whether the Minister gave consent to DCM to apply for an exploration licence gives rise to questions of both law and fact. The questions of law that arise are:

1. whether the letter is capable of amounting to consent to apply for an exploration licence under s 13(4); and

1. whether, taking the evidence at its highest, it would be open to the jury to find that the letter did amount to consent to apply for an exploration licence under s 13(4).

24. Whether the accused Macdonald actually gave his consent in that letter is, in my view, a question of fact for the jury to determine, if the legal questions (1) and (2) above have been answered in the affirmative.

25. In these circumstances, it is sufficient to find that the letter dated 21 August 2008 is capable of amounting to consent under s 13(4) to apply for an exploration licence as a matter of law. For reasons already given, I consider there to be sufficient evidence to establish that it amounted to consent. Whether the second element has been made out as a matter of fact to the requisite standard is, however, a matter for the jury as the tribunal of fact.

26. Accordingly, I decline Mr Jordan’s first application for a directed verdict.

The second application: no case to answer submission in relation to element 4 of counts 2 and 4

The accused Maitland’s submissions

27. Mr Jordan accepted, for the purposes of the second application that the evidence, in the Crown case, taken at its highest was capable of supporting the following:

“a.   Mr Maitland knew enough about mining, and the Doyles Creekproposal, to understand that the very small proportion of coal whichwas to be extracted under training conditions was something anycommercial mine operator would readily agree to in order to obtain anexploration licence;

b.   Mr Maitland also knew that if a competitive tender process wasadopted, a large additional financial contribution would likely be bid byother interested parties;

c.   Mr Maitland was aware of certain internal advice that the DPI [Department of Primary Industries] had supplied to the Minister on 22 February 2007 concerning the DCM training mine proposal, including that:

i. the Mine Safety Council had rejected underground training in 2000 and instead favoured simulation;

ii. there would be major policy difficulties in granting a licence, potential probity issues, and environmental sensitivities to deal with;

iii. the training mine would not work without the support of major industry players;

iv. the DPI recommended that Mr Macdonald refer the matter to the Mine Safety Advisory Counsel for further advice; and

d.   Mr Maitland knew that Doyles Creek area was classified as a majorstand-alone area under the Ministerial guidelines and would ordinarilybe the subject of competitive allocation.”

28. However, Mr Jordan contended that these matters were insufficient to establish the Crown case as to the accused Maitland’s knowledge. He submitted that the Crown opened on friendship between the accused as being the relevant motive and that the Crown evidence, even taken at its highest, failed to establish such a relationship. Mr Jordan emphasised the following passage from the Crown’s opening, at tr. 33:

“The Crown says Mr Maitland must have known the only reason justifying the exercise of the former minister's discretion in favour of DCM was his long-standing relationship with Mr Macdonald. The Crown alleges that Mr Maitland knew enough about mining, and the Doyles Creek proposal, to understand that the very small proportion of coal which was to be extracted under training conditions was something any commercial mine operator would readily agree to in order to obtain an exploration licence. He, therefore, knew, that is Mr Maitland knew, the only considerations against a competitive tender process, and in favour of the direct allocation of DCM, was his friendship with Mr Macdonald, and his position of chairman of that company.”

29. Further, he submitted that there was insufficient evidence that the accused Maitland knew, as opposed to merely suspected, that the accused Macdonald, when consenting to the application for an exploration licence, was substantially motivated to confer a benefit on him and DCM (element 4a.); and that he was not motivated to a significant degree by the object of furthering the interests of the State of New South Wales (element 4b.).

The Crown’s submissions

30. The Crown identified the evidence on which it relied in support of the accused Maitland’s knowledge of 4a. and 4b. of the elements set out above, in addition to the four matters extracted above from Mr Jordan’s written submissions.

31. The additional categories of evidence upon which the Crown relied (which, in some respects, overlap with Mr Jordan’s four categories) include:

1. The evidence that both accused realised that it was necessary that letters of support be obtained from various entities, including from unions and industry, to support the direct allocation of an exploration licence over an area which included a training mine, which could otherwise not have been justified;

2. The evidence that the accused Maitland knew that the training mine proposal was unlikely to get the support of the NSW Minerals Council, which was the principal peak body for the mining industry (an email from the accused Maitland to Mr Ransley dated 23 July 2008: page 540E of Ex A);

3. The efforts the accused Maitland went to in order to obtain letters of support, which were sent to the accused Macdonald’s Ministerial office to be collated by Mr Gibson, a member of the accused Macdonald’s staff;

4. The “strategy” adopted by Mr Maitland in obtaining such letters of support, which was not to mention the training mine expressly but rather to emphasise the public interest in the safety of miners in underground mines;

5. Evidence (from internal DCM documents and the financial documentation attached to the application for consent itself) that the accused Maitland knew that an exploration licence (which could be expected to be granted following a consent to apply) had substantial value and would, if the subject of an invitation for expressions of interest, have been likely to attract Additional Financial Contributions, such as were obtained in relation to the Watermark exploration licence (of which the accused Maitland was aware, as evidenced by an email at page 590B of Ex A);

6. Evidence of the accused Maitland’s knowledge of the relative insignificance of the size of the resource associated with the training mine (150,000 tonnes) when compared with the probable size of the total resource at Doyles Creek (91 million tonnes) (as disclosed in the application for consent submitted on behalf of DCM by the accused Maitland);

7. The relative insignificance of the number of miners which the Doyles Creek proposal envisaged training (as disclosed in the application for consent submitted on behalf of DCM by the accused Maitland), by comparison with the general numbers of miners being trained in the area (as evidenced by the figures derived from Coal Services Pty Ltd’s records and Mr Healey’s oral evidence), of which the accused Maitland could be inferred to be aware because of his recent and long-standing role with the CFMEU;

8. The delay in the commencement of the training mine (as evidenced by the application for consent submitted on behalf of DCM by the accused Maitland), the development of which was only scheduled to commence part-way through 2012 and was apparently not to be completed until the end of 2017 (see page 471 of Ex A, which is an attachment to the application for consent), which would make it of negligible utility with respect to whatever skill shortages there were in the Hunter Valley at the time of the application, having regard to the boom-bust nature of mining cycles;

9. The admission by the accused Macdonald to the Singleton Argus newspaper (at page 525 of Ex A): “However, if we walk away from this, I can assure you that the State Government will put the exploration licence up for the highest bidder”, from which the Crown submitted that the jury could infer that the accused Maitland realised that DCM was in an unique position as the only applicant who could get an exploration licence by direct allocation, following his (the accused Maitland’s) application for consent to apply;

10. The accused Maitland’s explanation in his email (through his wife) to Mr Tudehope dated 24 August 2008 (page 590 of Ex A) of the three alternatives open to the Minister to grant an exploration licence, being: public tender; invitation of expressions of interest; and “the minister [sic] uses his discretion and invites one mining company”, thereby demonstrating his knowledge of the legislation and the way it was administered by the Department (DPI).

32. The Crown also relied on the following additional passages from its opening of the case against the accused Maitland, at tr. 31:

Because he and Mr Maitland were friends, and political associates. In this regard Mr Macdonald and Mr Maitland had been from the same faction of the Labor Party. And Mr Macdonald's preselections for the 2007 New South Wales elections had been supported by Mr Maitland. The Crown says further that Mr Macdonald was also motivated to confer this benefit on Mr Maitland because his political career was due to come to an end in the near future, and Mr Maitland had influence and significant connections in the mining industry, and in particular he was the chairman of DCM. Mr Macdonald's cultivation of the friendship and loyalty to Mr Maitland by granting a direct allocation of the exploration licence to DCM was calculated to enhance the prospect that upon Mr Macdonald's departure from parliament, Mr Maitland and DCM might be useful to him. And there was nothing, the Crown says, apart from this relationship between them to distinguish the DCM application from many other companies which might have been interested in acquiring the exploration licence over the Doyles Creek area on the same sorts of conditions given to DCM. That is the training mine, or training fund, and to which Mr Macdonald did not extend that opportunity.

33. The Crown submitted, in effect, that its case was based on the relationship between the two accused, which was one of mutual benefit.

Consideration

34. The accused Maitland’s second application requires me to apply the test which was articulated by the High Court in May v O'Sullivan (1955) 92 CLR 654 at 658. The question is whether, at the time a no case submission is made, the accused could lawfully be convicted on the evidence as it stood at that time.

35. It has subsequently been made clear by the High Court, including in Doney v The Queen (1990) 171 CLR 207 at 214 that the question for me is not whether the quality of the evidence is such that any verdict of guilty in respect of counts 1 or 2 would be unreasonable, since that would be a matter for the Court of Criminal Appeal. As the High Court said at page 214:

“It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.”

36. Count 2 on the indictment against the accused Maitland relates to the granting of consent to apply for an exploration licence (Count 1 against the accused Macdonald) and count 4 on the indictment against the accused Maitland relates to the granting of the exploration licence (Count 3 against the accused Macdonald). As the accused Maitland has been charged with being an accessory before the fact, it is necessary for the Crown to prove, as against him, that the accused Macdonald is guilty of counts 1 and 3, as well as establishing that the accused Maitland knew of each of the matters underlying the elements of the charge against Macdonald (which are accepted to exclude 7): Giorgianni v The Queen (1985) 156 CLR 473 at 477-488 per Gibbs CJ.

37. This means that the Crown must prove that the accused Maitland knew that in granting such consent, the accused Macdonald was substantially motivated by the desire to confer a benefit on him and DCM; and was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales (elements 4a. and 4b. set out above).

38. In so far as Mr Jordan’s no case submission rests on the foundation that the evidence at its highest cannot support a finding that the accused were friends, this would appear to be largely irrelevant. The Crown is obliged only to prove the elements of the offence beyond reasonable doubt and not every fact for which it contends, or with which it opened the case. In any event, the additional extract from the transcript of the Crown’s opening set out above indicates that the Crown put its case on the footing that there was a relationship between the two which explained why the accused Maitland was getting the preferential treatment of being granted consent to apply for an exploration licence by direct allocation. The Crown evidence, taken at its highest, is capable of proving that the relationship between the two accused was such as to engender the possibility of mutual benefit by reason of their past and present roles and likely future circumstances of each of them.

39. However the relationship is described (whether that be in terms of friendship or potential mutual benefit) is not determinative. The jury is obliged to consider all of the evidence, including the evidence capable, when taken at its highest, of establishing the accused Maitland’s knowledge that:

1. the accused Macdonald chose to invite DCM, of all potential applicants, to apply for an exploration licence, against the advice of his own Department, when the supposed public benefit of the training mine could have been offered by any applicant, had others been given the opportunity, and other applicants might have been prepared to make Additional Financial Contributions, whereas DCM was not in a position to offer any;

2. if the company with which the accused Maitland was associated, DCM, did not proceed, no consent to apply for an exploration licence would be given and the exploration of the coal resource at Doyles Creek would proceed, if at all, by the orthodox process of expressions of interest, for which the quantum of Additional Financial Contributions offered by the applicants would be likely to be a relevant consideration;

3. letters of support from various quarters were an essential part of the process of obtaining the accused Macdonald’s consent to the application; that the accused Macdonald participated in the drive to obtain such letters himself; and that the accused Macdonald provided the facilities of his Ministerial office to receive and collate such letters;

4. letters of support were unlikely to be forthcoming from the peak union (CFMEU) or the peak industry body (Minerals Council) having regard to the responses the accused Maitland had received to advances made by him to Mr Maher (who refused to provide a letter) and Dr Williams (who said the matter had to be referred to the Executive Committee);

5. the proposed training mine was unlikely to be operational for a period of some years; would have the capacity to train relatively few miners (by comparison to the general demand for training in the region); and comprised a relatively insubstantial component of the total resource.

40. I consider that, taking the evidence at its highest, it would be open to the jury to find that the accused Maitland had actual knowledge of elements 4a. and 4b.: namely that the accused Macdonald, when granting the licence, was substantially motivated to confer a benefit on him and DCM; and that he was not motivated to a significant degree by the object of furthering the interests of the State of New South Wales.

41. Mr Jordan accepted that, if I found a case to answer with respect to count 2, it would follow that there was a case to answer with respect to count 4. Accordingly it is not necessary to consider count 4 separately.

The third application for a Prasad direction

42. Mr Jordan submitted, in the alternative to the no case submission considered above, that the evidence against the accused Maitland is so lacking in weight that it could not support a reasonable verdict of guilty from a properly directed jury and that, accordingly, I ought advise the jury of its right to proceed to a verdict of acquittal before the conclusion of the trial: R v Prasad (1979) 23 SASR 161.

43. The Crown relied on what was said by Beech-Jones J in R v Dickson; R v Issakidis (No. 10) [2014] NSWSC 1482 and submitted that the present case is not an appropriate one for such a direction to be given because there were numerous documents contained in the evidence to which no reference had been made in the opening and which had not been referred to in oral evidence in the Crown case.

44. I accept the Crown’s submission. I respectfully adopt the analysis of Beech-Jones J at [6]-[7] since I consider the matters referred to by his Honour are applicable to the present case. His Honour said at [6]-[7]:

“[6] In this case the giving of a Prasad direction would occasion a serious injustice to the Crown. The judgment in Dickson (No 9) illustrates that the principal evidence against Mr Issakidis is documentary. Yet the Crown has not yet had the opportunity to fully put its case about what the documents show as to Mr Issakidis’ involvement. An opening to a jury is not the proper place for the Crown to argue an accused person’s guilt. While the evidence of various witnesses has addressed the contents of a number of the documents that have been tendered, there are obvious restrictions on what they can state about documents and their contents, especially in respect of documents in which they were not the author or recipient. It is not the function of witnesses to tie together documents which, together, might implicate an accused. Otherwise, as in Seymour, this case involves extended criminal responsibility, and a jury cannot properly consider such a case without receiving appropriate directions.

[7] Thus the only possible fair manner in which a Prasad direction could be given in that respect at this point would be to effectively stop the trial and provide a relatively detailed mini summing up. Such a process is implicitly disapproved of in the authorities to which I have referred.”

45. A Prasad direction may be appropriate in relatively simple cases where the evidence against the accused appears to be unreliable but there are dangers in using it when the Crown case is such that the jury may not fully understand it merely from the opening and the Crown evidence: Seymour v R [2006] NSWCCA 206 at [60]-[66] per Hunt AJA (Simpson and Rothman JJ agreeing). In Seymour v R, a jury acquitted a co-accused following a Prasad direction, but convicted the accused, in respect of whom a Prasad direction had also been given. It was argued on appeal that the jury’s verdicts were inconsistent. The effect, and dangers, of the Prasad direction appear from [65]-[66] per Hunt AJA:

“[65] It is clear, in my opinion, that the jury acquitted the co-accused because it had not been explained to them how the part he played in the various events which took place in the apartment made him criminally responsible for the actions of the appellant. The very experienced counsel appearing for the appellant in this appeal very properly conceded that this was perhaps correct. If follows from my opinion that the seeming inconsistency in the results of the Prasad direction disappears.

[66] This case demonstrates the danger of giving a Prasad direction in circumstances where there may be a problem for the jury in understanding the real nature of the Crown case. In some cases, it may be possible for the direction to be expanded to make it clear how the Crown put its case, but it seems to me that to do so really negates the whole purpose of this procedure, which is premised on the jury being able, without the assistance of the trial judge or counsel, to judge the cogency of the evidence on which the Crown relies — without addresses and without a summing-up.”

46. In the present case, the evidence is complex and detailed. The Crown case is a circumstantial one which depends on an assessment of the evidence as a whole. The jury has not been taken to all of the documentary evidence and can be taken not to have read it in its entirety or appreciated its significance to the Crown case. The issue of the accused Maitland’s knowledge of the accused Macdonald’s state of mind (particularly elements 4a. and 4b.) will require detailed consideration in the Crown address. It is not appropriate for me to undertake this task in the course of any Prasad direction. Indeed, for the reasons given by Hunt AJA in Seymour, any requirement to do so would negate the whole purpose of the procedure contemplated by the Prasad direction. In these circumstances a Prasad direction would be inappropriate.

Conclusion

47. For the foregoing reasons I refuse the applications for direct verdicts of acquittal and refuse the application for a Prasad direction.

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Amendments

30 March 2023 - Publication restriction removed – judgment republished

Decision last updated: 30 March 2023