R v Obeid (No 2)

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.