R v Obeid (No 3) - [2015] NSWSC 1441

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Obeid (No 3) [2015] NSWSC 1441
Hearing dates: 28 September 2015
Date of orders: 28 September 2015
Decision date: 28 September 2015
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
Application for certification under s 5F(3)(b) of the Criminal Appeal Act 1912 rejected.

Catchwords: APPEAL – application for Judge to certify order – s 5F(3)(b) of Criminal Appeal Act 1912 – trial judge overruled demurrer and rejected application for stay – quasi-jurisdictional points raised – caution exercised in certifying – application refused.
Legislation Cited: - Criminal Appeal Act 1912 – s 5F(3)(b)
Cases Cited: - Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17, 71 NSWLR 96
- R v Obeid (No 2) [2015] NSWSC 1380
Category: Procedural and other rulings
Parties: Regina – Applicant
Edward Moses Obeid – Respondent
Representation:
Counsel:
P. Neil SC – Crown
G. Reynolds SC, D. Hume – Respondent
Solicitors:
Sol for Public Prosecutions – Crown
Breene & Breene – Respondent

File Number(s): 2015/053925
Publication restriction: Restriction lifted.

Judgment (revised from ex tempore)

On 22 September 2015 I published reasons for overruling a demurrer raised by the accused, Edward Moses Obeid, to an amended indictment and otherwise dismissed a notice of motion filed by him seeking to quash the indictment or stay the proceedings in respect of it (R v Obeid (No 2) [2015] NSWSC 1380 “Obeid (No 2)”).
On 25 September 2015 senior counsel for Mr Obeid, Mr Reynolds SC, made an application that I certify, pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912, that the orders made on 22 September 2015 are proper ones for determination on appeal. Mr Reynolds SC contended that three of the matters determined by Obeid (No 2) were of a jurisdictional or quasi-jurisdictional nature such as to warrant certification, namely, whether a member of the legislative council (an “MLC”) is a “public officer” for the purposes of the offence of wilful misconduct in public office, whether the prosecution of Mr Obeid infringed s 9 of the Bill of Rights in its application in New South Wales and whether this court's jurisdiction to try him was excluded because the subject matter of prosecution was within the exclusive cognisance of the Legislative Council.
He also submitted that other aspects of the matters addressed by Obeid (No 2) were appropriate for review by the Court of Criminal Appeal, principally the analysis of the duty owed by an MLC set out in Obeid (No 2) at [74] to [75] and an asserted divergence between the approach taken in the formulation of one element of the offence by the courts of the United Kingdom as opposed to the Courts of this country (see Obeid (No 2) at [88] to [98]).
Today, 28 September 2015, the Crown Prosecutor opposed the application for certification on a number of bases, including the contention that appeals on questions of law are not within the scope of s…

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 3)

Details

AGLC: Content removed [2015] NSWSC 1441
Case: [2015] NSWSC 1441
Decision Date: 28 September 2015

CaseChat Overview and Summary

In the case of R v Obeid (No 3), the respondents applied for the trial judge to certify an order under section 5F(3)(b) of the Criminal Appeal Act 1912. The application stemmed from a criminal trial in which the appellants, Obeid and others, were found guilty of various charges. The dispute before the court concerned the judge's decision to overrule a demurrer and reject the appellants' application for a stay of proceedings. The primary legal issue the court needed to address was whether the trial judge's decision constituted a quasi-jurisdictional error warranting certification of the order for appeal.

The court considered the nature of the error alleged and whether it met the criteria for a quasi-jurisdictional point under the relevant legislation. The court exercised caution in certifying the order, considering the seriousness of the process involved and the potential impact on the administration of justice. The court determined that the trial judge's decision did not amount to a quasi-jurisdictional error and, therefore, declined to certify the order. This decision was based on the conclusion that the error, while significant, did not fall within the narrow category of quasi-jurisdictional errors that would justify certification.

The court's reasoning was grounded in the established legal principles governing certification of orders under the Criminal Appeal Act 1912. It found that the trial judge's actions did not deprive the appellants of a fair trial or infringe upon a fundamental aspect of the legal process. As a result, the application for certification was refused. No further orders were made, and the case remained in its current procedural state.

Orders