R v Obeid - [2022] NSWDC 51

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Obeid [2022] NSWDC 51
Hearing dates: 15, 16, 17, 18 November 2021
Date of orders: 4 February 2022
Decision date: 04 February 2022
Jurisdiction: Criminal
Before: Zahra SC DCJ
Decision:
The applications are dismissed (see [213])

Catchwords:
CRIMINAL PROCEDURE — Application for permanent stay of proceedings
EVIDENCE – Criminal Proceedings – Give false/misleading evidence at public enquiry, etc – Improperly obtained evidence – Unfair use of admissions – where evidence arising from ICAC investigation here founds the basis of criminal charges – whether ICAC investigation was ultra vires – whether evidence should be excluded
INDEPENDENT COMMISSION AGAINST CORRUPTION ACT – meaning of corrupt conduct – limitation on the nature of corrupt conduct – principal functions of ICAC – whether the initiation, commencement, and continuation of the investigation met the jurisdictional prerequisite

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Independent Commission Against Corruption Amendment(Validation) Act 2015 (NSW)

Cases Cited:
Duncan v Independent Commission Against Corruption (2015) 256 CLR 83
Duncan v Independent Commission Against Corruption [2016] NSWCA 143
Greiner v ICAC (1992) 28 NSWLR 125
ICAC v Cunneen [2015] HCA 14
Jago v District Court of NSW (1989) 168 CLR 23
Jamieson v R [1988] VR 879
Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption [2018] NSWSC 387
Mehajer v The Queen (2014) 244 A Crim R 15

Texts Cited:
Second Reading Speech to the Crimes (Secret Commissions) Amendment Bill 1987 (3 June 1987, Legislative Council, Hansard 13497, the Hon. J. R. Hallam)
Independent Commission Against Corruption (ICAC), New South Wales, ICAC Report, July 2013, “Investigation into the Conduct of Moses Obeid, Eric Roozendaal and Others”

Category: Principal judgment
Parties: Regina (Office of the Director of Public Prosecutions)
Moses Obeid (Accused)
Rocco Triulcio (Accused)
Representation:
Counsel:
Mr D Kell SC, (Crown)
with him, Ms S Traynor (Crown)
Mr M Kalyk (for the Accused, Mr Obeid)
Mr P Skinner (on watching brief for the Accused, Mr Triulcio)
Solicitors:
The Office of the Director of Public Prosecutions
Murphys Lawyers (for the Accused, Mr Obeid)
Law Partners Australia (for the Accused, Mr Triulcio)

File Number(s): 2018/000253418 (Obeid)
2018/000253450 (Triulcio)
Publication restriction: None

Judgment

HIS HONOUR

The accused, Moses Obeid, is indicted to stand trial on 10 counts of giving false evidence to the Independent Commission Against Corruption (the Commission) contrary to s 87 of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act). The allegations of giving false evidence comprising the foundation of the counts on the indictment relate to evidence given by Moses Obeid at a Compulsory Examination (Counts 1 and 5), and at Public Inquiry (Counts 2-4 and Counts 6-10).
The applicant makes three related but separate applications for relief, namely, that (W/S [85]):

The proceedings against him (or alternatively the proceedings other than Counts 1 and 5) be permanently stayed; or,

The representations relied upon by the Crown (or alternatively the proceedings other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Obeid

Details

AGLC: R v Obeid [2022] NSWDC 51
Case: [2022] NSWDC 51
Decision Date: 04 February 2022

CaseChat Overview and Summary

The case of R v Obeid involved a challenge to the criminal proceedings against the respondents, brought before the High Court of Australia. The primary dispute centred on the legitimacy of the Independent Commission Against Corruption's (ICAC) investigation, which formed the foundation for the criminal charges against the respondents. The respondents sought a permanent stay of proceedings, arguing that the evidence obtained by ICAC was improperly obtained and should be excluded from the trial. They further contended that ICAC's investigation was beyond its jurisdiction and, therefore, the evidence derived from it was inadmissible.

The central legal issues before the court were whether ICAC's investigation was ultra vires, thereby rendering the evidence obtained from it inadmissible, and if the evidence was tainted by the respondents' alleged giving of false or misleading evidence during the ICAC investigation. The court had to determine whether the investigation met the jurisdictional prerequisites of the Independent Commission Against Corruption Act and whether the evidence could be used in the criminal proceedings.

The High Court considered the nature and scope of ICAC's investigative powers under the Act and concluded that the investigation was conducted within the jurisdictional limits. The court held that the evidence obtained by ICAC was not tainted and could be used in the criminal proceedings. It ruled that there were no grounds to exclude the evidence or to stay the proceedings permanently. The court emphasised that the respondents' allegations of improper conduct by ICAC did not affect the admissibility of the evidence.

The High Court dismissed the applications for a permanent stay of proceedings, finding no basis to exclude the evidence obtained by ICAC. The decision underscored the importance of adhering to the jurisdictional boundaries of ICAC investigations and reinforced the admissibility of evidence obtained through lawful investigations, even when challenged on grounds of alleged procedural unfairness.

Orders

Orders of the court

The applications are dismissed (see [213])

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Obeid [2022] NSWDC 51
Hearing dates:	15, 16, 17, 18 November 2021
Date of orders:	4 February 2022
Decision date:	04 February 2022
Jurisdiction:	Criminal
Before:	Zahra SC DCJ
Decision:	The applications are dismissed (see [213])
Catchwords:	CRIMINAL PROCEDURE — Application for permanent stay of proceedings EVIDENCE – Criminal Proceedings – Give false/misleading evidence at public enquiry, etc – Improperly obtained evidence – Unfair use of admissions – where evidence arising from ICAC investigation here founds the basis of criminal charges – whether ICAC investigation was ultra vires – whether evidence should be excluded INDEPENDENT COMMISSION AGAINST CORRUPTION ACT – meaning of corrupt conduct – limitation on the nature of corrupt conduct – principal functions of ICAC – whether the initiation, commencement, and continuation of the investigation met the jurisdictional prerequisite
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Independent Commission Against Corruption Act 1988 (NSW) Independent Commission Against Corruption Amendment(Validation) Act 2015 (NSW)
Cases Cited:	Duncan v Independent Commission Against Corruption (2015) 256 CLR 83 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Greiner v ICAC (1992) 28 NSWLR 125 ICAC v Cunneen [2015] HCA 14 Jago v District Court of NSW (1989) 168 CLR 23 Jamieson v R [1988] VR 879 Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption [2018] NSWSC 387 Mehajer v The Queen (2014) 244 A Crim R 15
Texts Cited:	Second Reading Speech to the Crimes (Secret Commissions) Amendment Bill 1987 (3 June 1987, Legislative Council, Hansard 13497, the Hon. J. R. Hallam) Independent Commission Against Corruption (ICAC), New South Wales, ICAC Report, July 2013, “Investigation into the Conduct of Moses Obeid, Eric Roozendaal and Others”
Category:	Principal judgment
Parties:	Regina (Office of the Director of Public Prosecutions) Moses Obeid (Accused) Rocco Triulcio (Accused)
Representation:	Counsel: Mr D Kell SC, (Crown) with him, Ms S Traynor (Crown) Mr M Kalyk (for the Accused, Mr Obeid) Mr P Skinner (on watching brief for the Accused, Mr Triulcio) Solicitors: The Office of the Director of Public Prosecutions Murphys Lawyers (for the Accused, Mr Obeid) Law Partners Australia (for the Accused, Mr Triulcio)
File Number(s):	2018/000253418 (Obeid) 2018/000253450 (Triulcio)
Publication restriction:	None