R v Obeid (No 10)

[2016] NSWSC 812

Supreme Court

New South Wales

Medium Neutral Citation:	R v Obeid (No 10) [2016] NSWSC 812
Hearing dates:	7 June 2016
Date of orders:	07 June 2016
Decision date:	07 June 2016
Jurisdiction:	Common Law - Criminal
Before:	Beech-Jones J
Decision:	Evidence admitted
Catchwords:	EVIDENCE – cash payments retail outlets in period of conduct after indictment – relevance – prejudice – no question of principle
Legislation Cited:	Criminal Procedure Act 1986 (NSW)
Cases Cited:	R v Basha (1989) 39 A Crim R 337 R v Obeid (No 6) [2016] NSWSC 112 R v Obeid (No 7) [2016] NSWSC 132
Category:	Procedural and other rulings
Parties:	Regina (Crown) Edward Moses Obeid (Accused)
Representation:	Counsel: PW Neil SC; S Beckett (Crown) B Hughes SC; N Mikhaiel (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Breene & Breene (Accused)
File Number(s):	2015/53925

Judgment – (re admissibility of evidence)

1. HIS HONOUR: In R v Obeid (No 6) [2016] NSWSC 112 I heard and overruled an objection to the Crown leading evidence which was capable of giving rise to an inference that the accused had, from March 2008, received cash payments from the takings of the food outlets at Circular Quay.

2. The basis for admitting that evidence was stated in Obeid (No 6) at [20] as follows, namely, that the evidence is "capable of showing that, from the time of the acquisition of the leases, the accused's indirect interest and his family's investment [in] and control of CQR's [Circular Quay Restaurants Pty Ltd] business had the real potential to provide a direct financial benefit to the accused." I added that, "Mr Maroon's evidence of cash payments being made within six months after the period identified in the indictment is capable of demonstrating that the potential for the accused to directly benefit from CQR's businesses that existed from 2002 to 2007 was ultimately realised from early 2008 onwards."

3. At the time the ruling in Obeid (No 6) was given, the evidence of these payments consisted of oral evidence given by Mr Maroon that had been given on a voir dire. He recalled a time when he commenced preparing an envelope containing an amount of cash upon which he wrote the accused's name or a reference to him and he provided it to the accused's son, Damian Obeid.

4. When he gave that evidence he was unclear as to the date when he commenced preparing that envelope. However, by reference to an email that was dated March 2008, the inference was open that it at least commenced from that time. It is fair to say that things have changed somewhat dramatically since the time of that ruling.

5. Mr Maroon returned to give evidence before the jury a few days afterwards. In his evidence‑in-chief he volunteered that he could now recall preparing envelopes marked for the accused from at least November 2007.

6. In cross-examination he volunteered for the first time that he had access to computer spreadsheets that indicated the payments had commenced from that time. These revelations set in train a course of events which resulted in the identification of spreadsheets that are capable of suggesting that those particular payments may have commenced from August 2007.

7. The potential effect of this evidence was realised by all at the time. The unfairness caused to the accused in being confronted with it in that way, led to the first trial being aborted: see R v Obeid (No 7) [2016] NSWSC 132.

8. Since that time, the parties have had the opportunity to review those spreadsheets. Further, a “Basha inquiry” has been conducted into Mr Maroon's evidence (R v Basha (1989) 39 A Crim R 337). That inquiry revealed that his memory is deteriorating. At this point it is unclear whether he will be able to nominate whether there was in fact another envelope being prepared for the benefit of the accused.

9. The present issue concerns the tender of the spreadsheets that were located in the way that I have described. The Crown has prepared a table of those spreadsheets with the relevant entries that were prepared by Mr Maroon, starting on 22 August 2007 and concluding in March 2011. The spreadsheets include references to the date, an amount of money and a notation. It is anticipated that the evidence of Mr Maroon will be that he prepared the notation. The notations on their face appear to be capable of supporting an inference that an amount was being prepared in some cases for the accused's wife, in some cases for an amount that included the accused and his wife, and in a couple of cases for the accused.

10. Further, the spreadsheets indicate that, in broad terms, from August 2007 until at least June 2009 an amount that is approximately in excess of $6,000 a month was being prepared and provided from the cash takings. It may be that that amount also supports an inference that an amount was being provided to the accused, given the evidence at the earlier trial that the amount being provided to the accused's wife was on average only $1,000 per week.

11. Objection is taken by senior counsel for the accused to the tender of the spreadsheets dated after January 2010. The principal basis for the objection is that evidence of payments being made in 2010 and 2011 can shed no light on the accused's state of mind as at August 2007, or his conduct at that time. It is further said that the evidence is prejudicial in that something nefarious could be concluded from the fact that amounts in cash were being taken from the business and provided to the accused and his wife.

12. The difficulty with those contentions is that they cut across the reasoning in Obeid (No 6). Even if by operation of s 130A of the Criminal Procedure Act 1986 that ruling does not continue to bind me, unless the interests of justice require, I consider the reasoning in Obeid (No 6) is still apposite.

13. The reason why payments in 2010 and 2011 bear on events in 2007 in this trial is that they demonstrate the potential that the accused always had to profit from the businesses in 2007 later crystallised. They are capable of supporting an inference that the various means by which the accused and his family were involved in these businesses were capable of delivering cash to him from their operations.

14. This is starkly illustrated by some of the entries from 2011, which indicate that in the months of February and March an amount of $60,000 was taken from the profits of the businesses. The entries in the spreadsheet for those amounts state respectively "held for dad", "less 10K for dad", "less dad", "less dad", "less dad" and "less dad". Those entries, in my view, are capable of supporting an inference that an amount of $60,000 in cash was taken out of the businesses in February and March 2011 and provided to the accused. When that evidence is combined with the other evidence concerning the nature of the interests the accused and his family had in these leases throughout the relevant period then, in my view, it could be concluded that these payments represented the crystallisation of a potential that always existed.

15. Hence, for that reason, I consider that evidence of payments to the end of 2011 is admissible on precisely the same basis that the payments were held admissible in Obeid (No 6). Similarly, the reasoning in Obeid (No 6) concerning the prejudicial effect of the material is also equally apposite: see Obeid (No 6) at [23] to [27].

16. In addition, the following two matters should be noted.

17. First, it also appears to me that this evidence is capable of demonstrating not only the nature of the interests held by the accused in the Circular Quay restaurants, but another matter referred to in the indictment, namely, his knowledge of those interests.

18. Second, in the absence of precisely knowing what Mr Maroon will say about the entries in the spreadsheet, it is at this stage not necessary to determine whether the combination of all the entries, from August 2007 to March 2011, are capable of supporting an inference that there was some connection between the intervention of the accused in the process for the renewal of the lease in August 2007 and the apparent commencement of either cash payments that went to him or at least a sudden increase in the amount of payments that were provided to his wife.

19. Accordingly, the tender of these spreadsheets dated to 2011 will be allowed.

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Decision last updated: 11 February 2020