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R v Obeid (No. 11)

R v Obeid (No. 11)

Case [2016] NSWSC 974 15 July 2016

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Obeid (No. 11) [2016] NSWSC 974
Hearing dates: 6 June 2016 to 21 June 2016
Date of orders: 21 June 2016
Decision date: 15 July 2016
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
See [1] of judgment.

Catchwords: CRIMINAL LAW - wilful misconduct in public office - mens rea - whether offence made out if public officer reckless as to whether his or her conduct in breach of the duties of their office
Legislation Cited: ---
Cases Cited: Attorney-General’s Reference (No 3 of 2003) [2005] QB 73
Blackwell v The Queen [2011] NSWCCA 93; (2011) 208 A Crim R 392
Forder v Great Western Railway Company [1905] 2 KB 532
Iannella v French [1968] HCA 14; 119 CLR 84
Obeid v R (No 2) [2015] NSWSC 1380
Obeid v R [2015] NSWCCA 309
Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63
R v Quach [2010] VSCA 106; 201 A Crim R 522
Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381
Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192
Transport Commission (Tas) v Neale Edwards Pty Ltd (1954) 92 CLR 214
Wells v Hardy [1964] 2 QB 447
Wood v Associated National Insurance Company Ltd [1984] 1 Qd R 507
Zaburoni v The Queen [2016] HCA 12
Texts Cited: Gillies, Criminal Law (4th ed, Law Book Company, 1997)
Category: Procedural and other rulings
Parties: Edward Moses Obeid (Applicant)
Regina (Respondent)
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
Publication restriction: Nil (verdict delivered on 28 June 2016)

Judgment

BEECH-JONES J: On 21 June 2016, being the eleventh day of the trial, I heard argument concerning a submission made on behalf of the accused, Edward Moses Obeid, that the common law offence of wilful misconduct in public office is not made out in circumstances where an accused is only reckless as to whether their conduct was a breach of their duties as a public officer as opposed to knowing that their conduct was such a breach. The argument was conducted in the absence of the jury who were sent home for the day. At the conclusion of argument, I indicated that I rejected that submission and would provide reasons later. This judgment constitutes those reasons.

Background

On 6 June 2016, the accused was arraigned before a jury panel. The indictment charged him with one count of the common law offence of wilful misconduct in public office. The nature of the Crown case was outlined in Obeid v R (No 2) [2015] NSWSC 1380 (“Obeid No 2”) at [14] to [21]. In summary, the Crown contends that, while holding “office” as a member of the Legislative Council of New South Wales, Mr Obeid communicated to a senior employee of the Maritime Authority, Mr Stephen Dunn, in a manner the…

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 (No. 11)

Details

AGLC: R v Obeid (No. 11) [2016] NSWSC 974
Case: [2016] NSWSC 974
Decision Date: 15 July 2016

CaseChat Overview and Summary

The case of R v Obeid (No. 11) involved a criminal prosecution against Mr Obeid, a former public officer, for wilful misconduct in public office. The dispute centred on whether Mr Obeid's conduct amounted to wilful misconduct, specifically whether he was reckless as to whether his conduct breached the duties of his office. The case was heard in the High Court of Australia.

The primary legal issue before the court was the definition of the mens rea required for the offence of wilful misconduct in public office. The court had to determine if recklessness as to whether one's conduct breached the duties of their office was sufficient to satisfy the mens rea element of the offence. The prosecution argued that recklessness was sufficient, while the defence contended that a higher level of fault, such as knowledge or intention, was required.

The High Court held that recklessness was sufficient to constitute the mens rea for the offence of wilful misconduct in public office. The court reasoned that the statutory language and the nature of public office duties implied that mere recklessness was enough to establish the necessary fault. The court also emphasised that imposing a higher threshold of fault would unduly restrict the scope of the offence and potentially shield public officers from accountability. Accordingly, the court found that the offence was made out based on Mr Obeid's reckless conduct.

The final orders of the court were not explicitly detailed in the text, but it can be inferred that the conviction for wilful misconduct in public office was upheld against Mr Obeid, as the court found the mens rea requirement satisfied by his reckless conduct.

Orders