R v Obeid

[2015] NSWSC 897

Supreme Court

New South Wales

Medium Neutral Citation:

R v Obeid [2015] NSWSC 897

Hearing dates:

26 June 2015

Decision date:

07 July 2015

Before:

Johnson J

Decision:

Application for trial by Judge-alone refused

Catchwords:

CRIMINAL LAW – application for judge alone trial – Applicant charged with wilful misconduct in public office – consideration of principles concerning applications for judge alone trial – whether extensive media publicity will adversely affect Applicant’s trial –steps available to mitigate impact of adverse media publicity – likely issues in the trial operate in favour of maintaining jury – application dismissed

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010
Crimes Act 1900
Criminal Procedure Act 1986
Jury Act 1977

Cases Cited:

Arthurs v Western Australia [2007] WASC 182
Blackstock v R [2013] NSWCCA 172
Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52
Jamal v R [2012] NSWCCA 198
John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344
Lloyd v McMahon [1987] AC 625
Montgomery v HM Advocate [2003] 1 AC 641
Potts v R [2012] NSWCCA 229; 227 A Crim R 217
Priest v State of New South Wales [2006] NSWSC 12
R v Abrahams [2013] NSWSC 729; 230 A Crim R 74
R v Jamal [2008] NSWCCA 177; 72 NSWLR 258
R v Jamal [2013] NSWDC 20
R v K [2013] NSWCCA 406; 59 NSWLR 431
R v McNeil [2015] NSWSC 357
R v McNeil (No. 2) [2015] NSWSC 757
R v Quach [2010] VSCA 106; 27 VR 310
R v Simmons and Moore (No. 4) [2015] NSWSC 259
R v Yuill (1993) 69 A Crim R 450
Skaf v R [2008] NSWCCA 303

Texts Cited:

Chesterman, Chan and Hampton, “Managing Prejudicial Publicity - An Empirical Study of Criminal Jury Trials in New South Wales” (February 2001)

Category:

Procedural and other rulings

Parties:

Edward Moses Obeid (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr JS Stratton SC; Mr J Tunks (Applicant)
Mr PW Neil SC; Ms SF Beckett (Respondent)

   

Solicitors:
Breene & Breene Solicitors (Applicant)

  Office of the Director of Public Prosecutions (Respondent))

File Number(s):

2015/53925

Publication restriction:

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Judgment

1. JOHNSON J: By Notice of Motion filed on 19 May 2015, the Applicant, Edward Moses Obeid, makes application under s.132 Criminal Procedure Act 1986 to be tried by a Judge alone.

2. The Crown does not agree to the Applicant being tried by a Judge alone. It is necessary for the Court to determine whether an order under s.132 should be made in the circumstances of the case.

The Charge Against the Applicant

3. The Applicant has been charged with the common law offence of wilful misconduct in public office. On 8 May 2015, the Applicant was arraigned upon an indictment in the following terms:

“Between 1 August 2007 and 30 November 2007 in Sydney in the State of New South Wales, Edward Moses Obeid, then holding public office as a Member of the Legislative Council of New South Wales, did in the course of and connected to his public office wilfully misconduct himself by encouraging Stephen Paul Dunn, the Deputy Chief Executive Officer and General Manager, Maritime Property Division of the Maritime Authority of New South Wales, to cause the said Maritime Authority to deal favourably with Circular Quay Restaurants Pty Limited in respect of the said company’s tenancies of property at Circular Quay.”

4. Upon arraignment, the Applicant pleaded not guilty to this charge. His trial is fixed to commence at the Supreme Court in Sydney on 12 October 2015.

The Present Application

5. This application is made well before the trial date and with the identity of the trial Judge being unknown to the parties. The rationale underlying the determination of a s.132 application in this way was adverted to by me in R v McNeil [2015] NSWSC 357 at [8]-[11]:

“8   Although the s.132 application is proceeding before me, I will not be the trial Judge.

9   The bringing of the application in this way, well in advance of the trial, accords with an apparent statutory purpose that an application for a Judge-alone trial should be made (at least ordinarily) without knowing the identity of the trial Judge.

10   In the course of the second reading speech for the Courts and Crimes Legislation Further Amendment Bill 2010, which introduced s.132A, the then Attorney General, Mr Hatzistergos, said (Hansard, Legislative Council, 24 November 2010):

‘The new section 132A sets out procedural matters regarding trial by judge orders, including that applications are to be made no less than 28 days before the trial date, except by leave of the court. This is designed to minimise the risk of a party applying for a judge-alone trial on the basis of knowing the identity of the trial judge.’

11   It has been observed that earlier versions of ss.132-132A had been drafted to avoid the appearance that the accused person was making an election in the light of the knowledge of the identity of the trial Judge: R v Perry (1993) 29 NSWLR 589 at 594; R v Coles (1993) 31 NSWLR 550 at 552-553; R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 at [20]-[29].”

Hearing of the Application

6. The hearing of this application proceeded on 26 June 2015.

7. On 22 May 2015, I had made an order prohibiting publication of the fact that the Applicant has made an application for trial by Judge alone.

8. At the commencement of the hearing on 26 June 2015, I confirmed that the non-publication order remained in force with respect to the fact that the application had been made and anything said at the hearing of the application. That order will remain in force until any application is made to the trial Judge to lift the order after the trial of the Applicant is completed.

9. Mr Stratton SC, for the Applicant, read the following affidavits at the hearing of this application:

1. affidavit of Timothy Joseph Breene sworn 19 May 2015;

2. affidavit of Timothy Joseph Breene sworn 25 May 2015;

3. affidavit of Timothy Joseph Breene sworn 25 June 2015;

4. affidavit of Robert Oliwer Szuszkiewicz sworn 19 May 2015.

10. Folders of documents referred to in the affidavits were admitted separately as Exhibits TJB1, TJB3 and ROS1. Admitted as Exhibit TJB2 was a copy of a book by Kate McClymont and Linton Besser entitled “He Who Must Be Obeid”.

11. The Crown read affidavits of Jessica Chan sworn 29 May 2015 and 26 June 2015.

12. No deponent was required for cross-examination and no oral evidence was adduced at the hearing.

13. Helpful written submissions had been provided by the parties in advance of the hearing and counsel spoke to these submissions.

Relevant Statutory Provisions

14. Section 131 Criminal Procedure Act 1986 provides as follows:

“131 Trial by jury in criminal proceedings

Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part.”

15. Section 132 provides:

“132    Orders for trial by Judge alone

(1)    An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).

(2)    The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

(3)    If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

(4)    If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

(5)    Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(6)    The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

(7)    The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that:

(a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and

(b)    the risk of those acts occurring may not reasonably be mitigated by other means.”

16. As will be seen, s.132(4) and (5) are the critical provisions on this application. Section 132(7) does not arise in this case.

17. Section 132A is in the following terms:

“132A    Applications for trial by judge alone in criminal proceedings

(1)    An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court.

(2)    An application must not be made in a joint trial unless:

(a)    all other accused person apply to be tried by a Judge alone, and

(b)    each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial.

(3)    An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person’s trial, subsequently apply for a trial by a jury.

(4)    Rules of court may be made with respect to applications under section 132 or this section.”

The Crown Case Against the Applicant

18. Wilful misconduct in public office is a common law offence in relation to which no maximum penalty is fixed by law: Blackstock v R [2013] NSWCCA 172 at [8].

19. The Crown Case Statement outlines the case against the Applicant in the following way:

“Background

1.   Edward Moses Obeid held public office as a Member of the Legislative Council of New South Wales throughout the period 2002 to 2008 inclusive.

2.   Circular Quay Restaurants Pty Ltd (‘CQR’) was incorporated on 21 August 2002 and from that date John Joseph Paul Abood (‘John Abood’) was its sole shareholder, director and secretary.

3.   John Abood was, during times relevant to the charge (between August 2002 and December 2007), a brother-in-law of Edward Moses Obeid.

4.   At all material times from 21 August 2002, CQR held its assets on the terms of a unit trust, namely the Circular Quay Unit Trust. The Circular Quay Unit Trust was held by two unit holders: 10 ‘B Class’ units were held by J & A Abood Investments, and 90 ‘Ordinary Class’ units were held by SS Nominees (No. 1) Pty Ltd.

5.   SS Nominees (No. 1) Pty Ltd in turn held the 90 ‘Ordinary Class’ units as trustee of the Obeid Family Trust No. 2. The Obeid Family Trust No. 2 was a discretionary trust settled by Deed dated 14 May 2002, the listed beneficiaries of whom were listed as Edward Moses Obeid, his wife and their five sons (‘the Obeid family’). The 90 ‘Ordinary Class’ units held by SS Nominees (No, 1) Pty Limited gave the beneficial ownership of the capital in the Circular Quay Unit Trust to the Obeid family, which included the businesses and assignments of the leases in shops by CQR.

6.   In late 2002 CQR purchased the leases over two shop premises at Circular Quay Sydney, namely shops W4.1 and W5.1 on Wharves 4 and 5 respectively, pursuant to an assignment of the leases from their respective former tenants. Funds were transferred into the account of CQR prior to the purchase of the leases, from Locaway Pty Limited, a company in which Obeid Corporation Pty Ltd held a 50% shareholding.

7.   Whilst John Abood managed the businesses operating from W4.1 and W5.1 on behalf of CQS, he did not assume either proprietorial or management responsibility in respect of the businesses or the leases and did not take a profit share, and was remunerated only by wage.

8.   The leased shop premises were owned by the Marine Ministerial Holding Corporation (‘MMHC’). The leases were managed by the Sydney Harbour Foreshore Authority (‘SHFA’). The responsibility for letting or re-letting the premises and determining the terms upon which they would be leased lay with the Waterways Authority, which was later known as the Maritime Authority of NSW (‘Maritime’). Maritime was, within the relevant period, within the portfolio of the New South Wales Minister of Ports.

9.   The leases over shops W4.1 and W5.1 had initially been granted to the former tenants in December 1999 and June 2000 after a limited EOI process favoring incumbent tenants. The leases both were to expire on 31 August 2005, on the understanding that at the expiration of the leases a public expression of interest (‘EOI’) would be held to realize a commercial market rent rate.

10.   From August 2003, Mr Abood commenced to make representations to Maritime to the effect that upon expiry of the leases of the two shops on 31 August 2005, the proprietor, MMHC, should negotiate with CQR to enter into new leases of 5 years with an option of a further 5 years, rather than advertising publicly for EOIs in the leases.

11.   Maritime's response to the representations, communicated by Mr Zenon Michniewicz (General Manager, Maritime Property Division), was that upon expiry of the leases Maritime would advertise for expressions of interest with a view to granting a new lease pursuant to an open, competitive process.

12.   From about early 2005 to about September 2007 CQR was also in dispute with Maritime concerning the amount of rent to be paid by CQR during any holding over of the leases beyond the 31 August 2005 date upon which the leases were set to expire. An automatic 10% increase in rent during any hold over period was provided for by clause 3.5 of the memorandum of leases in respect of both shop premises.

13.   From about October 2004, and continuing to 2008, CQR together with other tenants of Circular Quay premises engaged Paul Scanlan as a negotiator and mediator to put, in part, their case to Maritime for direct negotiation with the leaseholders towards new leases from the expiry of their current terms, Obeid interests paid Paul Scanlan's fees.

14.   From early 2005 the Property Division of Maritime made preparations to advertise for EOI for new leases of all of the Circular Quay shops, including shops W4.1 & W5.1, from the expiry of the current leases on 31 August 2005.

15.   The EOI process was initially delayed, and then stalled, as Maritime considered various proposals to rationalise leasing policy within the Circular Quay precinct and for Maritime generally between 2005-2007. The lessees at Circular Quay, including CQR, were initially given a 6 month extension of their leases from 1 September 2005 to 28 February 2006, and then transitioned into monthly holdovers thereafter.

Ministers with responsibility for the subject properties

16.   At times relevant to the charge, three people successively held the position of Minister responsible for the Maritime Authority:

Michael Costa	2 April 2003 -10 August 2005
Eric Roozendaal	10 August 2005 -17 February 2006
Joseph Tripodi	17 February 2006 - 17 November 2009

17.    During this period Edward Moses Obeid used his position as a Member of the Legislative Council to access Mr. Tripodi to make general representations in favour of the position taken by the CQR. Such representations, had they been adopted, would have altered Maritime policy in a way favourable to Edward Moses Obeid, and his family.

Sequence 1: Misuse of public office

18.   Stephen Dunn was known personally to Edward Moses Obeid from about 1999:

a.   in a professional capacity, in that they had worked together from 1999 to 2003 when Edward Moses Obeid was Minister for Fisheries and Stephen Dunn was Director-General of Fisheries; and

b.   in a social capacity, in that after 2003 during times when they had no official or other business dealings they met and made contact by phone from time to time to discuss matters of common interest.

19.   From about 1999 Stephen Dunn regarded Edward Moses Obeid as his friend and mentor.

20.   Stephen Dunn was appointed Deputy Chief Executive Officer of Maritime on 15 August 2007 and General Manager Maritime Property Division on 21 August 2007.

21.   On 17 August 2007, two days after Stephen Dunn's appointment to Maritime, Edward Moses Obeid contacted him by telephone. During the conversation that followed. Stephen Dunn's recent appointment to Maritime was discussed, as was the complaint by Circular Quay leaseholders that they were being poorly treated by Maritime. Edward Moses Obeid asked Stephen Dunn to meet with the tenant's banister, Paul Scanlan, as the ‘stake holders representative’ in order to hear, and act upon, their grievances.

22.   As a result of this request Stephen Dunn and Paul Scanlan spoke on 20 and 21 August 2008. They arranged to meet in person at Paul Scanlan's office on 28 August 2007. Stephen Dunn approached Patrick Low. General Manager Policy of Maritime, and asked him to accompany him to the meeting.

23.   On 27 August 2007 Edward Moses Obeid spoke with Stephen Dunn by telephone for eight minutes from 7.04pm, in the course of which conversation:

a.   both parties referred to the meeting between Stephen Dunn, Patrick Low and Paul Scanlan scheduled for the next day; and

b.   Edward Moses Obeid urged the interests of the lessees upon Stephen Dunn.

24.   On 28 August 2007, Stephen Dunn and Patrick Low met with Paul Scanlan for one hour at Mr Scanlan's office at 155 King Street, Sydney during which Paul Scanlan requested:

a.   a review by Maritime of the automatic increase of 10% which was being applied to the tenants of shops at Circular Quay (including CQR) during the holding over period;

b.   consideration of allowing sitting tenants (including CQR) a right of last refusal in respect of the issue of new leases; and

c.   that Maritime adopt a policy of direct negotiation with sitting tenants followed by competitive tender process only if negotiation should not conclude satisfactorily.

25.   On 28 August 2007, after the said meeting Stephen Dunn requested by email that Patrick Low and Simon Lawton (a Maritime Property Division officer) provide advice including a draft response to Paul Scanlan on the issue of automatic 10% rent increases during holding over by the Circular Quay tenants. Later that evening Stephen Dunn telephoned Edward Moses Obeid and reported on the meeting he had with Paul Scanlan.

26.   On 3 September 2007, Stephen Dunn received from Simon Lawton an email prepared by a Maritime Commercial Property officer, Geoffrey Monkhouse answering in thirteen points the three matters which had been raised on 28 August 2007 by Paul Scanlan at his meeting with Stephen Dunn and Patrick Low. The email maintained Maritime's long held position that the premises should be the subject of an open tender process.

27.   On the evening of 3 September 2007 Stephen Dunn called Edward Moses Obeid and they spoke for nine minutes concerning progress towards Maritime addressing the matters set out at (a) to (c) of subparagraph 24 above, the matters raised in Geoffrey Monkhouse's email and concerning Stephen Dunn's intention to inform Circular Quay tenants that Maritime would not seek further increases of rent under the then current holding over period.

28.   It is the Crown Case that Edward Moses Obeid had informed Stephen Dunn at an early stage of the Obeid family's interest in leases at Circular Quay, and lobbied overtly and partially for an outcome beneficial to his private interests, thereby misconducting himself in public office. Stephen Dunn, with this knowledge, took a personal interest in the outcome of the matter, and reported diligently back to Edward Moses Obeid as to the progress that was being made.

29.   Irrespective of whether Stephen Dunn understood that Edward Obeid had a financial interest in two of the subject properties, in speaking to Stephen Dunn in the terms and on the occasions particularised in paragraphs 21, 23 and 27 above Edward Moses Obeid misused his public office as a Member of the Legislative Council to encourage Stephen Dunn to alter Maritime's policy towards tenants of properties at Circular Quay and to alter the terms upon which Maritime would deal with and transact with those tenants, favourably to the tenants and in particular favourably to the company in which Edward Moses Obeid and his family had a financial interest, CQR.

30.   On 4 September 2007 Stephen Dunn wrote to Paul Scanlan and informed him:

a.   Maritime's leasing policy as it affected the Circular Quay tenants was under review; and

b.   Maritime would ‘not seek any further increases [of rent] under the current arrangement’.

31.   On 4 September 2007 Stephen Dunn discussed Maritime's draft Commercial Leasing Policy with Patrick Low and caused Clause 4.5 of it to be altered to the effect that whereas version 9 of the draft (which was current from 7 August 2007) provided that upon expiry of retail leases renewal ‘would be offered by a competitive process’, the policy as amended by Stephen Dunn (version 10.1 of 4 September 2007) provided that retail leases ‘will be offered via direct negotiation in the first instance’ and that if such negotiations should fail to achieve a satisfactory outcome Maritime ‘will generally conduct a competitive process’.

32.   During September 2007 Stephen Dunn caused a Commercial Leasing Policy with the revised Clause 4.5 to be submitted to the Minister for Ports, Mr Tripodi, for the purpose of the Minister in turn submitting it to Cabinet for approval and adoption. Such approval and adoption occurred on 26 November 2007.”

20. The Crown alleges that the Applicant, in speaking to Stephen Dunn in the terms and on the occasions referred to in paragraphs [21]-[23] and [27] of the Crown Case Statement, misused his public office as a member of the Legislative Council to encourage Mr Dunn to alter the policy of the Maritime Authority of New South Wales towards tenants of properties at Circular Quay, and to alter the terms upon which that Authority would deal with and transact with those tenants.

21. The Crown alleges that the Applicant encouraged alterations that were favourable to the Circular Quay tenants and, in particular, favourable to the company in which the Applicant and his family had a financial interest, being Circular Quay Restaurants Pty Limited.

Elements of the Offence of Wilful Misconduct in Public Office

22. Submissions for the Applicant and the Crown touched upon the elements of the common law offence of wilful misconduct in public office. It is appropriate to refer to these elements to allow some understanding of what it is, as a matter of law, that the Crown will be required to establish at the trial of the Applicant.

23. The elements of the offence of wilful misconduct in public office are governed by the common law. Both the Applicant and the Crown referred to the decision of the Victorian Court of Appeal in R v Quach [2010] VSCA 106; 27 VR 310, where Redlich JA (Ashley JA and Hansen AJA agreeing) identified the elements of the offence in the following way at 323 [46]:

“So amended, the elements of the offence are:

(1)    a public official;

(2)    in the course of or connected to his public office;

(3)    wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;

(4)    without reasonable excuse or justification; and

(5)    where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.”

24. Of course, it is necessary to keep in mind, as Redlich JA observed in R v Quach at 320[37], that “the words used in the various cases are not to be read as if they are a statute”.

25. I will return to this topic when considering submissions made by reference to likely issues in the trial.

Some General Principles Concerning an Application for Trial by Judge Alone

26. In R v McNeil, I outlined a number of principles relevant to an application for trial by Judge alone at [27]-[39]:

“27   It has been said that, despite the terms of s.131, there is no presumption that a criminal trial should proceed with a jury, thereby casting a burden of proof on an applicant under s.132 to displace such a presumption: R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 at 25 [96], 29-30 [118]; R v Stanley [2013] NSWCCA 124 at [42]; R v Villalon [2013] NSWSC 1516 at [20].

28   That does not mean, however, that the choice between trial by jury and trial by Judge alone commences with a blank canvas. The Courts have recognised the important role of juries, drawn from the community, in the administration of criminal justice in this State.

29   In R v Jamal [2008] NSWCCA 177; 72 NSWLR 258, Spigelman CJ (Simpson and Price JJ agreeing) said at 262 [24]:

‘The central significance of the jury in the administration of criminal justice in Australia is such that the courts should be, on any view, exceptionally reluctant to insist that the system be bypassed, even when seeking to implement the principle of a fair trial. For serious crimes a fair trial in our system of criminal justice is a trial by jury, subject to statutory exception. The community has a right to participate in the administration of criminal justice, and public confidence in that system turns to a significant degree upon that participation. Furthermore, it must not be forgotten that a fair trial is not only a trial fair for the accused, it is also a trial fair to the community represented by the prosecution.’

30   Although this statement of Spigelman CJ was made in the context of a case where s.132 in its earlier form was under consideration (where the Crown could veto a Judge-alone application by an accused person), the sentiments there expressed remain helpful.

31   Observations made by Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517, in the context of a civil case, have been cited regularly in decisions under s.132. The Chief Justice said at 521 [7]:

‘… decision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time-honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards.’

32   Considerations of the type referred to in these statements from R v Jamal and Swain v Waverley Municipal Council constitute an important factor in the exercise of discretion under s.132(4).

33   Although a s.132 applicant does not carry a burden of proof, he or she does bear an evidentiary burden: R v Stanley at [42].

34   Section 132(4) identifies the test to be applied on an application such as this. The Court may make an order for trial by Judge alone ‘if it considers it is in the interests of justice to do so’. That formulation confers a wide discretion on the Judge determining the application: R v Stanley at [23].

35   Section 132(5) is not an exhaustive statement of the circumstances in which an order may be refused. Rather, it provides illustrations of circumstances in which refusal may occur. The legislature has provided some specific examples to be considered in this respect. Section 132(5) acknowledges that, when considering where the interests of justice lie, it will be relevant that where the trial involves an issue which may be informed by community standards or expectations, the interests of justice may be best served by utilising a jury of lay people: R v Belghar at 25 [96]; R v Villalon at [20].

36   Submissions were made for the Applicant that the absence of words such as ‘intention’ and ‘credibility’ from s.132(5) was noteworthy and indicated a legislative intention to omit factors of that type as examples of ‘objective community standards’.

37   I will refer a little later to a number of decisions where ‘intention’ has been considered in this context. For the moment, I observe that it would, in my view, be erroneous to read s.132(5) in a manner inconsistent with its terms. There may be a myriad of issues which arise in a criminal trial which may fall for consideration on a s.132 application. Section 132(5) should be construed as containing a number of illustrations which the legislature considered were worthy of mention. However, the test to be applied is the interests of justice test posed in s.132(4), with that test to be considered in the context of the particular case.

38   In forming a view as to what the interests of justice require, a balancing of various interests is required, including the interests of the parties and also larger questions of legal principle, the public interest and policy considerations: Landsman v R [2014] NSWCCA 328 at [69]. The important role of juries in the administration of criminal justice (mentioned at [30]-[33]) may be seen as touching issues of policy and the public interest, which arise for consideration in determining what the interests of justice require.

39   In R v Stanley, Barr AJ (Macfarlan JA and Campbell J agreeing) said at [42]-[43]:

‘42   … The fact that the applicant has decided on legal advice to relinquish any benefit of trial by jury is something the Court should take into account, but that and any apprehension that he will not receive a fair trial at the hands of a jury must be weighed. A mere stated apprehension without supporting evidence will not be enough. As Chesterman JA said in R v Fardon at [81], an accused cannot have a trial by judge alone for the asking. See generally the judgment of McClellan CJ at CL in R v Belghar at [96] - [97]. See also the judgment of Bellew J in R v Sean Lee King [2013] NSWSC 448 at [40] - [46].

43   In weighing the concerns of the applicant the Court must have regard to any means available to allay them. The Court should also bear in mind that the interests of the accused are not necessarily the interests of justice. The community receives important collateral benefits from trial by jury in the involvement of the public in the administration of justice and in keeping the law in touch with community standards: Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4, (2005) 220 CLR 517 at [7]’.”

27. I approach the present application with these considerations in mind.

Issues on the Application

28. Mr Stratton SC submitted that the substantial adverse media publicity concerning the Accused was a major factor, in the balancing exercise, pointing to the appropriateness of trial by judge alone.

29. He submitted that other features of the case, including the issues to be determined at the trial, did not provide significant support for trial by jury.

30. Mr Stratton SC submitted that the interests of justice called for trial by judge alone in this case.

31. The Crown submitted that the media publicity could be addressed by appropriate pretrial steps and at the trial itself. It was submitted that several likely issues in the trial are appropriately determined by a jury.

32. I turn to consider the application.

The Media Publicity Issue

33. The principal issue advanced by the Applicant on the present application concerns adverse media publicity with respect to him over a number of years.

Overview of Submissions

34. Mr Stratton SC submitted that there has been a very high degree of extremely prejudicial pretrial publicity in this case. He submitted that there has been continuing adverse publicity over a very long period, to the effect that the Applicant is not merely guilty of the present offence, but also that he is a corrupt person generally.

35. The publicity relied upon by the Applicant included the following:

1. numerous articles attached to the affidavit of Mr Breene describing the Applicant as either “corrupt” or “criminal”;

2. numerous posters observed on telegraph poles in March 2015 which juxtaposed a photograph of the Prime Minister, Mr Abbott, and a photograph of the Applicant accompanied by the words “Teach Them Both A Lesson”;

3. statements by a former Premier of New South Wales, the Hon Nathan Rees, that if he was not the Premier at the end of the day, any challenger would be a puppet of Eddie Obeid and Joe Tripodi;

4. findings by two Commissioners of the Independent Commission Against Corruption that the Applicant is corrupt, with both Commissioners being former Justices of the Supreme Court of New South Wales; and

5. extremely strong and entrenched opinions of members of the public expressed on social media.

36. In oral submissions (T27-29, 26 June 2015), Mr Stratton SC drew attention to a number of newspaper articles including the following:

1. the front page of “The Daily Telegraph” on 13 November 2012 with a photograph of the Applicant above a headline “Rotten to the Core?”;

2. the front cover of “The Daily Telegraph” on 1 August 2013 with a photograph of the Applicant above a headline “Corrupt”;

3. the front cover of “The Sydney Morning Herald” on 1 August 2013 with a photograph of the Applicant below a heading “Labor’s Shame”;

4. an article in “The Sydney Morning Herald” on 1 August 2013 (page 4) with a caricature of the Applicant (as a pig eating from a trough of money) under a heading “The Shame File”;

5. an article in “The Sydney Morning Herald” Weekend Edition for 3-4 August 2013 (the News Review Section) with a photograph of the Applicant accompanied by the words “The Godfather”;

6. the front cover of “The Sydney Morning Herald” on 6 June 2014 with a photograph of the Applicant beside a heading “ICAC Findings - Obeid Corrupt (Again)” - this being an article concerning a finding of corrupt conduct with respect to the subject matter of this prosecution.

37. Senior counsel for the Applicant drew attention, as well, to an article in “The Sydney Morning Herald” on 16 June 2015 concerning what was said to be a suspicious fire at certain Bankstown premises said to be associated with the Applicant. It was submitted that this article illustrated an ongoing level of publicity concerning the Applicant and his family.

38. Mr Stratton SC submitted that the book “He Who Must Be Obeid” remains available for sale, with a chapter of the book relating to the subject matter of this prosecution.

39. Mr Stratton SC submitted that care is required in relying upon what was said in R v Jamal [2008] NSWCCA 177; 72 NSWLR 258. He submitted firstly, that all of the cases cited by the Chief Justice were cases where the remedy sought in the face of adverse pretrial publicity was a permanent stay of the proceedings, a much more extreme remedy than is sought by the Applicant in the present case. Secondly, he observed that at a later time the convictions were quashed on appeal: Jamal v R [2012] NSWCCA 198. A retrial was ordered on one count which proceeded by way of a Judge-alone trial at which the Accused was acquitted: R v Jamal [2013] NSWDC 20.

40. Mr Stratton SC submitted that the level of adverse publicity concerning the Applicant was such that a judge alone trial ought be directed to ensure a fair trial: Arthurs v Western Australia [2007] WASC 182 at [87]; R v Simmons and Moore (No. 4) [2015] NSWSC 259 at [87]-[88].

41. The Crown acknowledged that the Applicant had received a not insignificant level of publicity concerning the ICAC investigations, hearings and findings and, to a lesser degree, the current criminal charge. The Crown accepted that the right of an accused person to a fair trial necessarily formed part of the broader interests of justice referred to in s.132(4) of the Act.

42. By reference to the affidavit of Ms Chan sworn 29 May 2015, the Crown submitted that:

1. of the 1,800 newspaper articles forming Exhibit TJB1, 485 of them were both published with a metropolitan Sydney distribution, and had the Applicant and the ICAC as the primary subject of the article or referred to the Applicant in an inflammatory manner;

2. of the 1,085 unique articles (articles that were not duplicates of other articles) published in a newspaper with a Sydney distribution, the peak period for published articles was reached during 2013, reducing slightly in 2014, with a marked drop off, relatively, in the first five months of 2015;

3. of the 485 articles published with a metropolitan Sydney distribution that had the Applicant and the ICAC as the primary or secondary subject of the article, the peak of publications occurred in 2013, lessened in 2014 and significantly reduced, relatively, in the first five months of 2015;

4. of the 2,004 news radio broadcasts which made reference to the Applicant (in Exhibit TJB1):

1. 1,098 concerned broadcasts within the Sydney metropolitan area;

2. of these 1,098 broadcasts, the peak occurred in 2013 (580), lessened in 2014 (436) and significantly reduced, relatively, in the first five months of 2015 (43);

5. Internet searches on Google using the search term “Eddie Obeid” indicated that the search term peaked during 2013 and decreased significantly in relative popularity from January 2015.

43. The Crown submitted that there is a pattern of publicity concerning the Applicant peaking in 2013, lessening in 2014 and significantly dropping further up to mid-2015. The Crown submitted that this pattern of decreasing publicity was further demonstrated by Ms Chan’s affidavit of 26 June 2015.

44. The Crown pointed to the evidence that the book “He Who Must Be Obeid”, published in August 2014, was not available for sale from August until early December 2014.

45. With respect to the Facebook and Twitter material contained in Exhibit TJB1, the Crown submitted that there was no evidence as to the reach of this material. The Crown pointed to the observation of Harrison J in R v Abrahams [2013] NSWSC 729; 230 A Crim R 74 and in R v McNeil at [72] that musings of “faceless people” on Twitter and Facebook appear irrational and, in some instances, could be described as puerile.

46. The Crown noted that the courts are not unfamiliar with criminal trial matters receiving high levels of media interest, both in quantity and in its potentially prejudicial nature. Reference was made to R v K [2013] NSWCCA 406; 59 NSWLR 431 at [80]-[82]; Skaf v R [2008] NSWCCA 303 at [46] and R v McNeil at [64]-[77].

47. The Crown submitted that, in the circumstances of the diminishing nature of publicity over time (as appears to be the current position), the “fade factor” plays a part with reference being made to Montgomery v HM Advocate [2003] 1 AC 641 at 673 (cited in R v McNeil at [67]).

48. The Crown referred to the report of Chesterman, Chan and Hampton, “Managing Prejudicial Publicity - An Empirical Study of Criminal Jury Trials in New South Wales” (February 2001), noting the statement therein that, in order to be influenced by prejudicial publicity, a (potential) juror must first encounter information, remember it and then apply it when reaching a verdict (page 148).

49. The Crown pointed to s.68C Jury Act 1977, and the jury selection and empanelment process, as being important factors to take into account in an assessment of the impact of adverse media publicity concerning the Applicant, with reliance being placed upon R v McNeil at [68]-[80].

50. The Crown acknowledged that an area of concern, in the circumstances of this case, is the risk of heightened publicity prior to empanelment of a jury and whether the empanelled jury might engage in Internet searches during the course of the trial.

51. In this respect, the Crown submitted that the non-publication order already in place with respect to this application would be of assistance (see [8] above). The Crown submitted that further orders restricting publication, of the type utilised in R v McNeil, may be considered in this case. It was submitted that such orders may serve to limit, as fully as possible, media publicity becoming a trigger to electronic searching by members of the community who may become members of the jury panel. The Crown submitted that such orders may be to the following effect:

1. there be no publication of the fact that the Applicant has made an application for trial by Judge alone;

2. there be no publication of the listing of the Applicant’s trial;

3. orders (a) and (b) are to remain in force until such time as different orders are made by the trial Judge;

4. there be no publication of this judgment, or the evidence and submissions made on the application for Judge-alone trial, until such further order of the Court as may be made after completion of the trial.

52. In submissions in reply, Mr Stratton SC agreed with the making of orders as set out in the previous paragraph, although not conceding that they would solve the problem of existing adverse pretrial publicity.

Decision Concerning Media Publicity

53. Some examples of media publicity concerning the Applicant have been set out above (at [36]). It is the case that a steady flow of adverse media publicity has surrounded the Applicant for some years.

54. This case is different to that in R v McNeil, where there was an outburst of highly prejudicial publicity in the aftermath of events at Kings Cross which caused the death of Daniel Christie. The adverse publicity concerning Mr McNeil extended over a period of time but, as the judgment in R v McNeil makes clear, it subsided.

55. It may be observed that the strategy to restrict further publicity in R v McNeil was effective up to the time when his trial commenced. However, as the judgment of RA Hulme J in R v McNeil (No. 2) [2015] NSWSC 757 makes clear, for reasons that are difficult to understand, some media outlets chose to publish damaging photographs of Mr McNeil once the trial was underway. His Honour refused to discharge the jury.

56. It is noteworthy that the jury acquitted Mr McNeil of murder and convicted him of manslaughter. The outcome of that trial constitutes a recent practical example of the fact that, despite a very substantial volume of adverse publicity (including publicity which took place even when the trial was underway), the jury considered the case on its merits and returned a verdict which had been sought by senior counsel representing him. Mr McNeil received a fair trial according to law.

57. With respect to Mr Stratton SC’s submission concerning R v Jamal (see [39] above), I observe that the particular value of the statements of Spigelman CJ was his Honour’s emphasis upon the importance of community participation in the administration of criminal justice by way of jury trial, with public confidence turning to a significant degree upon that participation: R v Jamal at 262 [24]. That remains a most important feature on the present application under s.132.

58. In the following paragraphs, I set out part of my judgment in R v McNeil (at [64]-[69]) which has application to this case as well.

59. Adverse and sensational media publicity occurs from time to time in the context of cases which have achieved some notoriety. Spigelman CJ touched upon some of these in R v Jamal at 261 [16]:

“16    This Court has had occasion to assess adverse pre-trial publicity in a number of cases, being publicity of a character, of a duration and of an intensity which was at least equal, in many cases, to the publicity in the present case. Applications for a permanent stay have failed in the most sensational of cases: Anita Cobby, Ivan Milat, Phillip Bell, the Childers Backpacker Hostel fire, Lucy Dudko, William D’Arcy, Bruce Burrell. (See Murphy v The Queen (1989) 167 CLR 94; R v Milat (Court of Criminal Appeal, 26 February 1998, unreported); R v Bell (Court of Criminal Appeal, 8 October 1998, unreported); Long v R [2002] QSC 54; (2002) 128 A Crim R 11; affirmed on appeal [2003] QCA 77; (2003) 138 A Crim R 103; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371; R v D’Arcy [2003] QCA 124; (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 185.)”

60. The Chief Justice continued in R v Jamal, emphasising that the Courts have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. The Chief Justice said at 261-262 [17]-[21]:

“17    I have had occasion to summarise the relevant case law in the following manner, applicable to the present case, in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344:

‘[103]    There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them.’

18    There are now numerous judicial statements as to the validity of such an approach.

19    Going back, for example, as Gleeson CJ said in R v VPH (Court of Criminal Appeal, 4 March 1994, unreported) at 7:

The jury will be given appropriate directions to confine their attention to the evidence that is put before them. Our entire system of the administration of criminal justice depends upon the assumption that jurors understand and comply with directions of that character.’

20    Furthermore, as McHugh JA said in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at 425:

‘[31] … Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.’

21    The perspective that jurors properly perform their task, are true to their oaths and comply with a trial judge’s directions has repeatedly been applied in appellate courts over recent years. (See R v Milat; R v Bell; Long v R; R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318; R v Dudko; R v D’Arcy; R v Burrell supra.)”

61. The lapse of time between media publicity and the trial itself is a significant factor. In Montgomery v HM Advocate, Lord Hope of Craighead said at 673:

“Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal: Young, Cameron & Tinsley, Juries in Criminal Trials: part Two, vol 1, ch 9, para 287 (New Zealand Law Commission preliminary paper no 37, November 1999). The lapse of time since the last exposure may increasingly be regarded, with each month that passes, in itself as some kind of a safeguard. Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible. The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdicts.”

62. In Skaf v R [2008], the Court of Criminal Appeal (McClellan CJ at CL, Hidden and Howie JJ) referred to the new dimension flowing from the internet in the area of media publicity. Their Honours said at [27]-[28]:

“‘27    The problem of publicity given to an alleged offence and the offender has been considered by the courts on many occasions. Sometimes the publicity has caused a court to defer a trial for a period. The assumption which the law makes is that the public’s memory of publicity will fade with time and accordingly after sufficient time, jurors will have no difficulty in confining their deliberations to the evidence. It is of course inevitable that there will be cases where, either because of the extent of the publicity, or, because of the peculiar or sensational nature of the facts, even if the public memory has subsided, when the evidence is tendered at a trial recollections of previous publicity will return. The internet has given a new dimension to these problems. Newspaper articles which provide an account of various events including allegations of criminal activity or a report of the evidence and verdict in criminal trials can now be retrieved, effectively forever. The law must accommodate these issues whilst ensuring a process which is fair both to the accused and the prosecution.

28    Apart from occasions when a trial is delayed to distance it from publicity, trial judges always tell jurors to confine their consideration to the evidence in the proceedings. If a trial has previously attracted or is likely to attract publicity, judges are careful to remind jurors that they are to ignore any publicity. The contemporary view is that it is not necessary for the jury to be sequestered with exposure to the media thereby eliminated. We accept that jurors will be faithful to the directions given by the trial judge and, if they happen upon a media discussion of the events, will be able to discriminate between the evidence and media reporting of the events.”

63. Reference should be made to s.68C Jury Act 1977, which provides:

“68C    Inquiries by juror about trial matters prohibited

(1)    A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.

(2)    This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings.

(3)    This section does not prohibit a juror:

(a)    from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or

(b)    from making an inquiry authorised by the court.

(4)    Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror.

(5)    For the purpose of this section, making an inquiry includes the following:

(a)    asking a question of any person,

(b)    conducting any research, for example, by searching an electronic database for information (such as by using the Internet),

(c)    viewing or inspecting any place or object,

(d)    conducting an experiment,

(e)    causing someone else to make an inquiry.”

64. In Skaf v R, their Honours returned to the internet, and the role of s.68C Jury Act 1977, at [46]:

“As indicated above the internet is an ongoing problem for the criminal justice system. The law has developed some strategies intended to deal with the situation. Model directions have been formulated following the decisions in R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 and R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 and s 68C Jury Act 1977 came into operation on 15 December 2004 prior to this trial. In her opening remarks to the jury the judge gave these directions. In his submissions to the trial judge on the stay application, counsel for Mohammed Skaf conceded ‘The concern is not publicity or what is is [sic] available on the Internet today because your Honour will give directions in relation to that. It is the publicity which is already out there and whether a direction at the start of the trial can remove that from the psyche of the jury as of today.”

65. I accept the analysis undertaken by the Crown that there has been a falling off in the publicity concerning the Applicant. It peaked in 2013, commenced to drop off in 2014 with a further peak at the time of the ICAC report concerning him, but with a steady drop off in 2015. In these circumstances, the reduction in publicity is significant and the “fade factor” relied upon in R v McNeil has some application.

66. I have borne in mind, as well, the report of Chesterman, Chan and Hampton concerning the management of prejudicial publicity. I bear in mind that that report was published in 2001, and that the nature and volume of electronic media reporting has expanded significantly since then. However, the findings in that report provide support for the importance of the passage of time in an assessment of the potential role of prejudicial publicity.

67. In R v Yuill (1993) 69 A Crim R 450, Kirby ACJ said at 453-454:

“Courts will assume that jurors, properly instructed, will accept and conform to the directions of the trial judge to decide the case solely on the evidence placed before them in court: see Demirok (1977) 137 CLR 20 at 22. There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the court room, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled.”

68. The capacity of jurors to differentiate between “gossip, rumour, news and opinion” heard before the case, and evidence heard in the court of trial, is an important feature on an application such as this. The extract from the judgment of Spigelman CJ in R v Jamal (at [60] above) supports the capacity of jurors to undertake their duties in a fair and balanced way, informed only by the evidence adduced at the trial.

69. In Priest v State of New South Wales [2006] NSWSC 12, I had regard to this statement by Kirby ACJ in R v Yuill, together with the report of Chesterman, Chan and Hampton, in reaching a conclusion that a jury should not be dispensed with in civil proceedings where there had been a substantial body of publicity favourable to the plaintiff, but adverse to persons who would be important witnesses for the defendant at trial.

70. A further aspect of that case, which has some relevance to the present application, is that the plaintiff had been a co-author of a book which had been published and which made substantial criticisms of persons and events which were the subject matter of that civil litigation. I was satisfied in that case (at [114]) that this factor was manageable by proper directions from the trial Judge.

71. I adopt a similar approach to the published book concerning the Applicant in this case. In reaching this view, I have taken into account that the book was written by journalists and contains significant content adverse to the Applicant. However, there is no evidence of its sale numbers. In effect, it forms just one part of a body of information available in the public arena which refers unfavourably to the Applicant.

72. I have taken into account the posters observed in Sydney streets in March 2015 (see [35](b) above). They are close to the category of material in social media, which should be approached as “musings” of people, and which should not be given any real weight on an application such as this: R v McNeil at [72].

73. I have kept in mind the most important role which members of the community play in the administration of criminal justice by way of jury service. It is the experience of trial judges that jurors display, in the words of Chesterman, Chan and Hampton (page 5), “good sense and sturdy individualism”. Jurors are not “exceptionally fragile and prone to prejudice”: John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344 at [103].

74. I am satisfied that some steps may be taken in this case to reduce the impact of publicity, at the very least by maintenance of the non-publication order concerning this application. These steps should be considered, in conjunction with the strong directions which will undoubtedly be given by the trial Judge in advance of empanelment of a jury, and after empanelment together with the operation of s.68C Jury Act 1977.

75. I am satisfied that these measures will serve to assist a fair trial of the Applicant.

76. I do not consider that the adverse media and other publicity requires, in the interests of justice, an order for trial by Judge alone in this case.

Other Features of the Case Bearing Upon the Present Application

77. I turn to consider other factors bearing upon this application

78. In foreshadowing likely issues at the trial, Mr Stratton SC submitted that it was not anticipated that there would be very much at issue about what the Applicant did or said. Rather, it is anticipated that the issues in the case will very much be what the Applicant’s duties were as a member of the Legislative Council of New South Wales, and whether or not his activities were in breach of those duties.

79. Mr Stratton SC submitted that, in order to make out its case, the Crown must establish that Mr Dunn himself was guilty of wilful misconduct in causing the Maritime Authority of New South Wales to deal favourable with Circular Quay Restaurants Pty Limited in respect of that company’s tenancies of properties at Circular Quay, and that the Applicant was aware that such conduct was unlawful. It was submitted that, if this argument was accepted, then those matters would also be issues at the trial.

80. With respect to the fifth element identified in R v Quach, Mr Stratton SC conceded that an assessment whether misconduct (if found) was serious and meriting criminal punishment was an issue which involved the application of community standards. He submitted, however, that other areas of the case would be the real issues at trial.

81. The Crown submitted that the defence characterisation of likely trial issues was unduly simple. The Crown indicated that there were likely to be credibility issues in the trial concerning Crown witnesses as well as the Applicant if he gave evidence.

82. The Crown contended that there are features of this offence which require consideration of objective community standards. The Crown submitted that issues informed by objective community standards arising from the elements of this offence, in the context of the present case, are as follows:

1. whether the Applicant wilfully misconducted himself in his conduct with Mr Dunn between 1 August 2007 and 30 November 2007 (did he have an improper (dishonest, corrupt or malicious) motive); and

2. whether the misconduct was sufficiently serious and meriting criminal punishment, taking into account the following:

1. the responsibilities of the office and office holder;

2. the importance of the public objects that they serve; and

3. the nature and extent of the departure from those objects.

83. The Crown submitted that the principal factual issues in this case will involve questions regarded as classic jury issues.

84. Mr Stratton SC, on the other hand, submitted that this is not a case calling for the application of community standards. He submitted that the major issue will be whether or not the Applicant, in lobbying for a particular policy, was in breach of his duties as a member of the Legislative Council of New South Wales.

85. It will be for the trier of fact at the trial to determine the issue as to whether the Applicant’s conduct constituted wilful misconduct. It will be for the Crown to prove that the Applicant deliberately did something which is wrong, knowing it was wrong or with reckless indifference as to whether it was wrong or not: Lloyd v McMahon [1987] AC 625 at 697. This will require consideration as to whether the Applicant had a motive, purpose or intent that was contrary to the duties of his office at the time of the relevant conduct: R v Quach at [83].

86. The Crown contends, and I accept for present purposes, that in the overall context of the Crown case and the events and correspondence taking place during August and September 2007, the trier of fact will need to determine if the Applicant had conducted himself in a way he knew to be wrongful in terms of his public office. If the Crown establishes that the Applicant spoke with Mr Dunn on the occasions referred to above, the question for the trier of fact will be whether, in the circumstances of all the evidence, he wilfully misconducted himself. In the circumstances of this case, that is a matter requiring the application of objective community standards.

83. The fifth element in R v Quach requires a determination by the tribunal of fact as to whether misconduct (if found) is serious and meriting criminal punishment, having regard to other factors referred to in the description of that element. I am satisfied that this aspect involves community standards so that this issue is very much a jury question. Other areas of the criminal law involve analogous assessments. In manslaughter by criminal negligence, an aspect to be considered by a jury (if other elements are proved) is whether the doing of the act merited criminal punishment. Where a partial defence of substantial impairment is raised to a charge of murder, it is necessary for the tribunal of fact to consider (if other aspects are established) whether “the impairment was so substantial as to warrant liability for murder being reduced to manslaughter”: s.23A(1)(b) Crimes Act 1900. This is a task for the tribunal of fact, which must approach the task in a broad commonsense way, involving a value judgment by a jury representing the community. It is a quintessential jury issue: Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at 224 [33]-[35].

84. It is difficult at this point to make any meaningful and reliable prediction as to the likely trial issues. The precise formulation of the elements of the offence, in the context of this case, will be a matter for the trial Judge. At this stage, however, I am satisfied that there is scope for consideration of objective community standards in determination of issues in the trial. The Crown outline of the way in which objective community standards may arise (see [82] above) is reasonably open as a view to be formed, at this distance from the trial, of some of the trial issues.

85. I have referred earlier to submissions which were made concerning the issues in the trial. There are unresolved aspects in this regard, which can only be determined closer to or in the course of the trial itself by the trial Judge.

86. I am satisfied that the trial will involve factual issues that require the application of objective community standards and the determination as to whether intention is established.

87. With respect to the role of intention, I remain of the view expressed in R v McNeil at [90]-[93]:

“90   The starting point on this issue is strong obiter dicta of Heydon J in AK v Western Australia [2008] HCA 8; 232 CLR 438 at 472-473 [95]. In the course of providing other examples of factual issues requiring the application of ‘objective community standards’ in s.118(6) Criminal Procedure Act 2004 (WA). Heydon J referred to the question ‘whether an accused person had a particular intention’. Gummow and Hayne JJ at 451-452 [38] agreed generally with the reasons of Heydon J.

91   The Court of Criminal Appeal, and single Judges, have considered the role of intention in s.132(5). Mr Smith SC relied upon passages in R v Belghar at 24-26 [90]-[100] and in the decisions of Harrison J in R v Abrahams at 96-97 [71]-[77] and of Hamill J in R v Simmons; R v Moore (No. 4) at [61]-[66].

92   The Crown referred to passages in R v Stanley at [56]-[61], R v Dean [2013] NSWSC 661 at [58]-[59] and of Bellew J in R v King at 415-416 [48]-[53].

93   In my view, the intention issue in this case may be characterised as one involving application of objective community standards: AK v Western Australia at 473 [95]; R v Stanley at [55]-[59]; R v King at 415-416 [48]-[53]; R v Dean at [58].”

92. These are significant issues involving intention which appear likely to arise at this trial.

93. It seems to me that issues of credibility are likely to arise in this case. Once again, I remain of the view expressed in R v McNeil at [102]-[104]:

“102   Where the credibility of witnesses arises as an issue in the trial, in my view this factor may operate in favour of a jury trial. This is so whether an assessment of credibility involves application of objective community standards or not. Such a trial will involve 12 members of the public (as opposed to one Judge) bringing their experience to bear in determining if the witnesses are giving credible and reliable evidence.

103   Like Latham J in R v Dean at [59], I would call in aid the statement of Lord Devlin in Trial by Jury (1966), page 140, cited by Heydon J in AK v Western Australia at 472 [94]:

‘Secondly, Lord Devlin also saw juries as being superior to judges in assessing credibility [78]:

‘[T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers' ways of thought; that is the great advantage to a man of judgment by his peers’.’

104   Insofar as it would seem that there are issues as to the credibility on the part of witnesses to be called in the Applicant’s trial, in my view this factor may be taken into account in support of retaining the s.131 procedure of trial by jury.”

94. In my view, the likely issues in the trial include significant matters which are appropriate for determination by a jury.

Conclusion

95. I have had regard to all factors bearing upon the exercise of discretion under s.132(4) as identified in this judgment.

96. I have had regard to the adverse media and other publicity concerning the Applicant (including the book and posters referred to earlier), the steps which the Court may take in advance of the trial to mitigate the effects of publicity and other aspects of the case, including issues of intention, credibility and the application of objective community standards, which bear upon the s.132 application.

97. In all the circumstances, I do not consider that it is in the interests of justice for the Applicant to be tried by Judge alone.

98. The Applicant’s Notice of Motion filed 19 May 2015 should be dismissed.

99. As foreshadowed earlier in this judgment, I am satisfied for the purpose of s.8(1)(a) Court Suppression and Non-publication Orders Act 2010 that some orders are necessary to prevent prejudice to the proper administration of justice. The existing non-publication order should remain in place until such time as a different order or orders are made by the trial Judge.

100. I should refer to further material furnished to the Court since the hearing of this application.

101. In a further submission dated 3 July 2015, which was accompanied by a further affidavit of Jessica Chan sworn that day, the Crown pointed to further action which had been taken concerning media publicity:

1. the Office of the Director of Public Prosecutions (“ODPP”) has requested, on 2 July 2015, that references to the Applicant in connection to findings of corruption by the ICAC be removed from the online websites of Fairfax Media and News Limited;

2. the ODPP has requested the co-operation of the ABC, SBS, Channel 9, Channel 7, Channel 10, Foxtel, Sky News, 2GB and 2UE to refrain from publishing references to findings of corruption by the ICAC concerning the Applicant prior to trial;

3. the ICAC has informed the ODPP that, on 1 September 2015, it will remove from its public website publications (including reports, transcripts, exhibits, witness lists and public notices) concerning the ICAC investigations and findings entitled Cyrus, Meeka and Cabot (each of which involved the Applicant) until such time as the trial has concluded.

102. The Crown referred to the Court’s capacity to make orders, if necessary, in accordance with Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52 at 78 [98], 70 [105].

103. The Crown proposed the making of additional orders which were supported by the Applicant (see [51]-[52] above). I will invite submissions on the question whether an order should be made prohibiting publication of the listing of the Applicant’s trial and the utility of such an order.

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Decision last updated: 24 August 2020