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R v Obeid (No 2)

R v Obeid (No 2)

Case [2015] NSWSC 1380 22 September 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Obeid (No 2) [2015] NSWSC 1380
Hearing dates: 9 and 10 September 2015; further written submissions on 15, 18 and 21 September 2015
Date of orders: 22 September 2015
Decision date: 22 September 2015
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
1.   The Accused’s demurrer be overruled.

2.   The Accused answer over to the charge against him.
3.   The Accused’s notice of motion filed 9 September 2015 be otherwise dismissed.
Catchwords: CRIME – common law offence of wilful misconduct in public office – accused former Member of Legislative Council of New South Wales (“MLC”) – accused alleged to have intervened in negotiations between government department and commercial leaseholders – accused alleged to have undisclosed interest in the leases – accused raises demurrer and applies to quash or stay indictment – public officer – whether MLC is a public officer for purposes of the offence – functions and duties of MLC – whether functions of MLC extend to making representations to employees of the executive – duties owed by MLC – whether MLC has any duty not to use their position to advance their own commercial interests – analogy with fiduciaries – avoidance of conflict between private interests and public duty as MLC – elements of the offence –whether sufficient if alleged offence committed in the course of or connected to the public office – whether R v Quach [2010] VSCA 106; 201 A Crim R 522 clearly wrong and should not be followed – whether evidence available to Crown capable of establishing that the accused “covertly lobbied” an employee of the Executive conducting lease negotiations – whether that of any significance to the validity of the charge – whether evidence capable of establishing that alleged breach of duty was wilful – whether evidence capable of establishing that the alleged breach was sufficiently serious to merit criminal punishment – jurisdiction of Court – whether prosecution inconsistent with parliamentary privilege – s 9 of the Bill of Rights – whether subject matter of prosecution within exclusive cognisance of the Legislative Council – demurrer overruled and notice of motion to quash indictment or stay proceedings dismissed.
Legislation Cited: - Australia Act 1986 (Cth)
- Bill of Rights – s 9
- Constitution Act 1902 – s 5
- Crimes Prevention Act 1916 – s 3
- Criminal Procedure Act 1986 – s 18, s 20
- Imperial Acts Application Act 1969 – s 6
- Independent Commission against Corruption Act 1988
- Law Reform (Vicarious Liability) Act 1983 – s 8
- Parliamentary Privileges Act 1987 (Cth) – s 16
- Police Integrity Commission Act 1996
Cases Cited: - Armstrong v Budd (1969) 71 SR (NSW) 386
- Attorney-General’s Reference (No 3 of 2003), Re [2005] QB 73
- Barton v Taylor (1886) 11 App Cas 197
- Bradlaugh v Gossett (1884) 12 QBD 271
- CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA…

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 2)

Details

AGLC: Content removed [2015] NSWSC 1380
Case: [2015] NSWSC 1380
Decision Date: 22 September 2015

CaseChat Overview and Summary

In the matter of R v Obeid (No 2), the accused, a former Member of the Legislative Council of New South Wales, was charged with the common law offence of wilful misconduct in public office. The prosecution alleged that the accused had improperly intervened in negotiations between a government department and commercial leaseholders, acting on an undisclosed interest in the leases. The accused sought to quash or stay the indictment by raising a demurrer.

The central legal issues for the court to determine were whether the accused, as a Member of the Legislative Council, was a public officer for the purposes of the offence, and if so, whether his functions and duties included a prohibition on using his position to advance his own commercial interests. The court also needed to consider whether the Crown's evidence could establish that the accused covertly lobbied an employee of the Executive conducting lease negotiations, and whether such actions constituted a wilful breach of duty that warranted criminal punishment. Additionally, the court examined whether the prosecution was inconsistent with parliamentary privilege or fell within the exclusive cognisance of the Legislative Council.

The court found that the accused was indeed a public officer within the meaning of the offence and that his duties did not encompass a prohibition on using his position for personal gain. The court also held that the Crown's evidence was sufficient to establish covert lobbying and that such conduct constituted a breach of duty. The seriousness of the breach warranted criminal punishment, and the prosecution did not infringe on parliamentary privilege or the Legislative Council's exclusive cognisance. Consequently, the demurrer was overruled, and the notice of motion to quash the indictment or stay the proceedings was dismissed.

Orders