R v Obeid (No 4)

[2015] NSWSC 1442

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Obeid (No 4) [2015] NSWSC 1442

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:

(1) The accused be granted leave under s 132A(1) of the Criminal Procedure Act to apply for an order for a trial by judge alone up to and including 23 September 2015.

 

(2)   The accused's notice of motion filed 23 September 2015 be dismissed.

 

(3)   The proceedings be listed for directions at 9.30am on 12 October 2015.

 (4)   There be liberty to apply on one day's notice.

Catchwords:

CRIME – application for judge alone trial – second application – Criminal Procedure Act 1986, s 130A – whether interests of justice warrant treating earlier refusal as not binding – whether earlier refusal “flawed” – whether material change in circumstances from earlier refusal – persistent adverse publicity labelling accused as corrupt – means of allaying publicity – whether factual issues for jury to consider – whether factual issues involving application of community standards – no matter raised that warrants treating earlier order as not binding – fresh consideration warrants refusal in any event – not appropriate for certification under s 5F(3)(b).

Legislation Cited:

- Court Suppression and Non-publication Orders Act 2010 – s 10, s 132
- Criminal Appeal Act 1912 – s5F(3)(b)
- Criminal Procedure Act 1986 – s 130A, s 132
- Evidence Act 1995 – s 38
- Independent Commission against Corruption Act 1988

Cases Cited:

- Australian Competition and Consumer Commission v Cascade Coal Pty Limited and Ors [2015] FCA 607
- Douglas v John Fairfax & Sons Limited [1983] 3 NSWLR 126
- Greiner v Independent Commission against Corruption (1992) 28 NSWLR 125
- John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344
- Pellegrino v Director of Public Prosecutions (Cwlth) [2008] NSWCCA 17; 71 NSWLR 96
- R v Belghar [2012] NSWCCA 86; 217 A Crim R 1
- R v Jamal [2008] NSWCCA 177; 72 NSWLR 258
- R v McNeil [2015] NSWSC 357
- R v Obeid [2015] NSWSC 897
- R v Obeid (No 2) [2015] NSWSC 1380
- R v Quach [2010] VSCA 106; 201 A Crim R 522
- R v Simmons, R v Moore No 4 [2015] NSWSC 259
- R v Stanley [2013] NSWCCA 124
- R v Yuill (1993) 69 A Crim R 450
- State of Western Australia v Rayney [2011] WASC 326; 42 WAR 383

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:
Solicitor for Public Prosecutions – Crown
Breene & Breene – Respondent

File Number(s):

2015/053925

Publication restriction:

Restriction lifted.

Judgment (revised from ex tempore)

1. On 23 September 2015, the accused Edward Moses Obeid filed a notice of motion seeking an order under s 132 of the Criminal Procedure Act 1986 that he be tried by a judge alone. The notice of motion was returnable on 25 September 2015 and was argued on that day. This judgment concerns that notice of motion.

Background

2. On 8 May 2015, Mr Obeid was arraigned in this court on an indictment that charged him with one count of wilful misconduct in public office. He pleaded not guilty. His trial was then fixed to commence on 12 October 2015. On 21 September 2015, I varied that date so that it is now fixed to commence on 19 October 2015. I did so because I had been informed that the parties believed that the week commencing 12 October 2015 could be usefully devoted to narrowing the factual matters in dispute for the purposes of shortening the trial.

3. On 7 July 2015, Johnson J dismissed an application by Mr Obeid for an order that he be tried by judge alone: R v Obeid [2015] NSWSC 897 (“Obeid (No 1”)). His Honour ordered that there be a non-publication order under s 10 of the Court Suppression and Non-publication Orders Act 2010 in respect of that application and the judgment in Obeid (No 1).

4. On 8 July 2015, his Honour made a similar order prohibiting the publication of the listing of Mr Obeid's trial. Since that time, such orders have been made in respect of all interlocutory proceedings and judgments, including this one.

5. Mr Obeid filed an application for leave to appeal from Obeid (No 1) under s 5F(3) of the Criminal Appeal Act 1912. His application was listed to be heard on 29 August 2015. However, in the days prior to that application being heard the Crown served a proposed amended indictment and amended Crown Case Statement. On 26 August 2015, the application for leave to appeal was adjourned on the basis that a fresh application for a judge-alone trial would or at least might be made.

6. In the meantime, on 9 September 2015 leave was granted to the Crown to file the amended indictment. However, at that time, Mr Obeid raised a demurrer to the amended indictment and otherwise sought to quash it or stay the proceedings in respect of it.

7. On 22 September 2015 I overruled his demurrer and otherwise dismissed his notice of motion seeking to quash the indictment or stay the proceedings: R v Obeid (No 2) [2015] NSWSC 1380 (“Obeid (No 2)”).

8. In Obeid (No 2) at [14] to [21] I set out the terms of the amended indictment and the nature of the Crown case. I will not repeat those paragraphs. This judgment should be read together with the judgment in Obeid (No 2) as well as the judgment in Obeid (No 1).

Sections 130A and 132 of the Criminal Procedure Act 1986

9. This being Mr Obeid's second application for a trial by judge alone, an issue arises as to the operation of s 130A of the Criminal Procedure Act. Along with s 132 it provides:

“130A Pre-trial orders and orders made during trial bind trial Judge

(1)   A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.

(2)   If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless:

(a)   in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or

(b)   that order is inconsistent with an order made on appeal.

(3)   If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding.

(4)   In this section, pre-trial order means any order made or given after the indictment is first presented but before the empanelment of a jury for a trial.

(5)   To avoid doubt, this section extends to a ruling given on the admissibility of evidence.

…

132 Orders for trial by Judge alone

(1)   An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).

(2)   The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

(3)   If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

(4)   If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

(5)   Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(6)   The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

(7)   The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that:

(a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and

(b)   the risk of those acts occurring may not reasonably be mitigated by other means.”

10. Senior counsel for Mr Obeid on this application, Mr James QC, submitted that s 130A had no application at this point because Johnson J made no “pre-trial order” as a consequence of Obeid (No 1), but instead “declined to make an order under s 132”. However, the relevant order of his Honour was the order dismissing Mr Obeid’s notice of motion filed 19 May 2015 seeking a judge-only trial: Obeid (No 1) at [98]. It is that order which is the subject of the application for leave to appeal. It follows that that order is binding on me as the trial judge unless I consider that it is “in the interests of justice” that it should not be so: s 130A(1).

11. Otherwise underlying the debate on this application was an issue as to the approach to be taken to s 130A(1). It can be accepted that the phrase “interests of justice” is a commonly employed phrase which has been held to be of wide import and comprehend many factors (see State of Western Australia v Rayney [2011] WASC 326; 42 WAR 383. Hence, that phrase is also to be found in s 132(4). However, context is important and the present context involves the deployment of that phrase as the threshold for revisiting a matter already determined. In that context, the “interests of justice” extends to the necessity to avoid the unnecessary re-agitation of matters already determined so as to avoid a waste of resources, and to respect principles of finality even in respect of a matter determined on an interlocutory basis.

12. In my view the starting point for an application to which s 130A applies is to consider whether there has been some material change in circumstances since the previous ruling. This is the approach adopted for the revisiting of interlocutory orders in civil proceedings (see Douglas v John Fairfax & Sons Limited [1983] 3 NSWLR 126 at [134]). In so stating I do not consider the necessity to demonstrate a material change in circumstance exhausts the circumstances in which the interests of justice may warrant a departure from an earlier order.

13. Mr James QC made a number of submissions directed to why it should be concluded that the interests of justice warrant a departure from the outcome of Obeid (No 1) and, in particular, a conclusion that it is not binding. I will address those submissions. Some of the matters put forward are consistent with what I have just stated as to the scope of s 130A, but some are not. However, I note that one aspect of his submissions appears to rise to the level of contending that I should simply address the matter entirely afresh, and if I come to a different conclusion to that of Johnson J then it would follow that “the interests of justice” would justify giving effect to that different view. I do not consider that approach is correct. If it were, then s 130A would be rendered otiose. However, out of an abundance of caution and in deference to the points made, I will also address the matter on that basis.

14. Before outlining the reasoning of Johnson J in Obeid (No 1) and addressing the matters put forward in support of the application, I note that the parties appear to have overlooked that s 132A(1) of the Criminal Procedure Act precludes this application being made without leave as it was made less than 28 days before the date fixed for the trial. However, given that the application was foreshadowed outside the 28 day period, I consider that such leave should be granted: Obeid (No 1).

Obeid (No 1)

15. In Obeid (No 1) at [26] Johnson J cited his own judgment in R v McNeil [2015] NSWSC 357 at [27] to [39] concerning the principles relevant to an application for trial by judge alone. I respectfully adopt, and to the extent necessary will apply, his Honour's synthesis of some of the relevant principles.

16. The basis for the application for a trial by judge alone before Johnson J was the sustained adverse publicity that Mr Obeid had been subjected to over a number of years. A number of affidavits were read before his Honour evidencing that publicity. Those affidavits together with additional affidavits were read on this application. I will return to consider them afresh shortly.

17. In Obeid (No 1), Johnson J summarised the submissions concerning the effect of that material at [33] to [37], [42] to [45] and [101]. In relation to that material, his Honour found that there had been a “steady flow of adverse media publicity that had surrounded [Mr Obeid] for some years” at [53]. However, his Honour also accepted at [65] that “there has been a falling off in the publicity concerning [Mr Obeid]” in that it peaked in 2013, commenced to drop off in 2014, with a further peak at the time of the ICAC report concerning him, but with a steady drop off in 2015.

18. His Honour considered that the reduction in the adverse publicity concerning Mr Obeid was “significant” and was indicative of a “fade factor” being a circumstance in which the effect of adverse publicity concerning an event or person fades over time.

19. In Obeid (No 1) his Honour referred to the capacity of jurors to disregard extraneous publicity and prejudicial material. Ultimately, his Honour concluded as follows (at [74] to [76]):

“I am satisfied that some steps may be taken in this case to reduce the impact of publicity, at the very least by maintenance of the non-publication order concerning this application. These steps should be considered, in conjunction with the strong directions which will undoubtedly be given by the trial judge in advance of empanelment of a jury, and after empanelment together with the operation of s 68C Jury Act 1977.

I am satisfied that these measures will serve to assist a fair trial of the Applicant.

I do consider that the adverse media and other publicity requires, in the interests of justice, an order for trial by judge alone in this case.”

20. His Honour then addressed other matters that bore upon this application especially the issues likely to arise at trial.

21. Bearing in mind s 132(5) of the Criminal Procedure Act his Honour found that “there is scope for consideration of objective community standards in determination of issues in the trial” at [88]; and concluded that “the likely issues in the trial include significant matters which are appropriate for determination by a jury”, at [94].

22. The issues that his Honour was referring to included the third element of the offence of wilful misconduct in public office as stated by Redlich JA in R v Quach [2010] VSCA 106; 201 A Crim R 522 at [22], namely, whether Mr Obeid wilfully misconducted himself by breaching his duty as a member of the legislative council (see Obeid (No 1) at [86]), and the fifth element, namely, whether the misconduct is “serious and meriting criminal punishment”, having regard to the responsibilities of the office and office-holder, the importance of the public objects which they serve, and the nature and extent of departure from those objects (Obeid (No 1) at [87]).

23. His Honour also identified that “at the trial it would be necessary for a jury to undertake an assessment” of the credibility of some of the witnesses; Obeid (No 1) at [93].

24. At this point it is appropriate to address a number of submissions that were made by Mr James QC concerning Obeid (No 1).

25. In support of this application, the Court was provided with Mr Obeid's written submissions in support of his application for leave to appeal from the judgment in Obeid (No 1). That said, Mr James QC said that no part of this application involved a revisitation of Obeid (No 1) as though this Court were sitting on appeal or some form of quasi appeal from that judgment. The Court was asked to note but not resolve the issues raised by the submissions that were lodged with the Court of Criminal Appeal.

26. However, the written submissions in support of this application nevertheless contended that his Honour's judgment in Obeid (No 1) was “flawed and should not be followed”. In oral submissions Mr James QC maintained that contention. The matters put in support of that contention are outlined in the written submissions of Mr Obeid on this application at [40] to [42].

27. The first matter is said to be that the finding in Obeid (No 1) at [76] that his Honour did “not consider that the adverse media and other publicity requires, in the interests of justice, an order for trial by judge alone” involved a misstatement of the relevant test. Mr James QC explained that this contention was to the effect that his Honour erred by imposing an onus or burden on Mr Obeid to show why a trial by jury should not be ordered (see R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 at [96]. This contention is misconceived.

28. Before his Honour could have concluded that an order for a judge-alone trial was warranted, his Honour had to be positively satisfied that it was “in the interests of justice” to so order. The relevant part of his Honour's reasons in Obeid (No 1) merely records that his Honour was not so satisfied.

29. The second complaint set out in the written submissions in support of this application was that in concluding that there were factual issues involving the application of objective community standards that would arise at Mr Obeid's trial, Johnson J failed to specifically identify them. That contention is also misconceived. I have already outlined the matters that his Honour clearly identified.

30. The third complaint was to the effect that if issues such as intention, dishonesty and credibility which his Honour referred to in Obeid (No 1) militate against making an order for a judge-alone trial, then there would be little room for s 132’s operation. However, despite the attempts in the course of submissions to wish s 132(5) out of existence, it has stubbornly remained in the section. The section evinces a clear preference on the part of Parliament for the determination by juries of the factual issues referred to in s 132(5) in trials concerning serious criminal charges. That matter is not determinative but it is clearly of significance to any application for a judge-alone trial.

31. It follows that none of the asserted “flaws” in Johnson J’s judgment in Obeid (No 1) have any substance. Generally I note that I have serious misgivings about such issues even being raised on this application. Once it was accepted (as it had to be) that this is not a forum to appeal his Honour's judgment, then in my view the submission that it was flawed should not have been pursued.

Publicity

32. As noted, on this application the affidavits read before Johnson J were read again, as well as additional affidavits updating the position in relation to publicity concerning Mr Obeid since July 2015. Given that one matter relied on is the cumulative effect of adverse publicity over time, it is appropriate to summarise the entirety of that material all of which I have considered.

33. In describing this material, I note that the principal focus of Mr Obeid's contention on this application concerns the publicity surrounding the findings made against him by the Independent Commission against Corruption, (“ICAC”), in various enquiries to the effect that he was corrupt and that the overall effect of the material is said to be that he was a corrupt person.

32. According to his written submissions there have been a number of ICAC enquiries in the last three years that have resulted in findings of corrupt conduct against Mr Obeid, namely Operation “Jasper”, Operation “Cabot”, and Operation “Meeka”, as well as Operation “Cyrus” which concerns the events the subject of these proceedings. ICAC's report on Operation Cyrus was published in June 2014.

33. In his affidavit sworn 24 September 2015, Mr Obeid's solicitor Mr Breene explained that he had caused to be conducted various media searches of the Australian print and electronic media for the period 14 May 2015 to 22 September 2015 using the terms “Eddie Obeid”, “corrupt”, “criminal”, or “guilty”. This search revealed 110 press articles and 56 television or radio excerpts. Annexed to Mr Breene's affidavit is a listing of the articles and the newspapers they were published in, as well as a listing of some of the headlines.

34. It is apparent from the listings that a number of the articles and broadcasts are a republication of each other. Many were published or broadcast out of metropolitan Sydney, and a number of them related to proceedings commenced by Mr Obeid himself: “Obeid sues State Government”. Copies of some of the print articles are attached to Mr Breene's affidavit. None of those articles concern the events the subject of these proceedings. Instead they address a variety of topics including the proceedings commenced by Mr Obeid, other civil proceedings, and matters of public comment concerning ICAC generally. Within many of those articles are brief passages which either refer to the fact that findings of corruption were made against Mr Obeid or add the adjective “corrupt” or “disgraced” in front of his name, or both.

35. Mr Breene also annexed to his affidavit a transcript of an electronic broadcast which was available online: "Corruption Watch Dog ICAC Costing NSW Taxpayers Millions in Legal Fees". The same observations apply to that broadcast.

36. In addition, Mr Breene annexes a table of media articles appearing in the print media between 20 June 2014 and 22 September 2015 that report on the making of corrupt findings by ICAC against Mr Obeid. The full articles are not made available except to the extent they were included in the material just noted. There are 29 such references. The last such reference was in an article published on 9 July 2015 which related to a different enquiry to the ICAC enquiry that led to the subject charge. The last reference to the events the subject of this charge in the articles was on 9 May 2015, which was the day after Mr Obeid appeared in this court to be arraigned. The article was reporting on that event.

37. This material reveals that for almost five months there has been almost no fresh reporting of any matter connecting Mr Obeid adversely to the events the subject of these proceedings. There has not been any specific article that has dealt in depth with any suggestion that Mr Obeid was corrupt. However, there still have been a number of references in articles to his being corrupt or otherwise “disgraced”, and there have been references to the fact that ICAC has made findings to that effect concerning him generally.

38. Mr Breene's affidavit sworn 24 September 2015 also annexes an article that is available online from the website of The Sydney Morning Herald dated 1 December 2012 which refers to one of its journalists having received an award for reporting on Mr Obeid. Apparently within that article there is a link to an article written by that journalist dated 19 May 2012 which addresses the events the subject of these proceedings. Prior to any trial, it is to be hoped that the article will be removed. However, as I will explain, it is not really contested on this application that if a potential juror wished to view prejudicial material concerning Mr Obeid by making searches online they could do so.

39. In addition, Mr Breene's affidavit sworn 24 September 2015 contains a “Google trending analysis” for the period January 2011 to September 2015 concerning the phrases “Eddie Obeid”, “Obeid”, “Ian Macdonald”, “Luke Foley” and “Mike Baird”. As I understand, the last two names are included as two points of comparison.

40. The trend analysis shows a substantial spike in searches on “Eddie Obeid” or “Obeid” in January 2013, with little interest for the other names. From that time the interest in “Eddie Obeid” or “Obeid” wanes. In early 2014 interest in Mr Baird increased rapidly, which is not surprising given it coincided with him becoming Premier. The same applies to Mr Foley who became leader of the opposition around January 2015.

41. Finally in his affidavit sworn 24 September 2015, Mr Breene recounts that he caused to be conducted an enquiry of the Google search engine to ascertain the number of hits on various search terms associated with Mr Obeid.

42. For example, the search term “Eddie Obeid” and “corrupt” yielded approximately 13,800 hits. It is noticeable that the number of hits yielded by this search in September 2015 is significantly less than those for the same search terms undertaken in May 2014 to which I will shortly refer. How many of these hits actually yielded articles on the topic that was being searched for is not known.

43. Before Johnson J, and on this application, an affidavit of Robert Oliver Szuszkiewicz sworn 19 May 2015 was read. He recorded that in March 2015 a number of posters were placed on telegraph poles in the Rockdale area with pictures of Mr Obeid and a Federal Liberal politician inviting voters to “Teach them both a lesson”. The timing of the posters coincided with the State election. It is not suggested that the posters remained in place for any significant period.

44. An affidavit of Mr Breene sworn 19 May 2015 annexed a search of the Australian press concerning the terms “Eddie Obeid” and “corrupt” or “criminal” for the period 1 January 2012 to 13 May 2015. The search revealed 1,800 press articles and 2,004 TV and radio articles. Copies of a number of those articles are annexed to his affidavit from pages 215 to 615. I have reviewed those pages. In broad terms they chronicle Mr Obeid’s time before ICAC to his appearance in this court from early 2015 to May 2015. The articles are generally prominently placed in the newspapers and are always adverse to him. They included articles on the events the subject of these proceedings although not many.

45. In his affidavit Mr Breene also recounts that he caused to be conducted an inquiry of the Google search engine of the kind he later conducted in September 2015. He searched to ascertain the number of hits on various search terms associated with Mr Obeid. For example, for the phrases “Eddie Obeid” and “corrupt”, this search yielded 20,600 hits compared with 13,800 hits in September 2015.

46. In addition, Mr Breene obtained searches on the social media sites Twitter, Facebook and YouTube in respect of the phrase “Eddie Obeid”. He exhibited over 200 pages of printed-out commentary from those sites concerning Mr Obeid. I have reviewed that material. It is generally abusive.

47. Mr Breene also obtained and annexed various printouts from the website of the publisher of the book “He who must be Obeid”, as well as 20 pages of printouts from the websites and I have reviewed that material. The websites contain commentary on the book which expressly or implicitly agrees with its premise that Mr Obeid used his public position to advance his financial interests.

48. Mr Breene swore an affidavit on 25 May 2015. Exhibited to that affidavit is a copy of the book “He who must be Obeid”. The book was tendered on this application.

49. After oral argument concluded the Court was provided with a schedule of particular portions of the book to consider. I have considered those portions and reviewed the book generally. Its overriding theme is that Mr Obeid used his position and influence over others to advance his financial interests. It uses pejorative language (“Edward Moses Obeid, OAM, was also the most corrupt politician the country has ever seen” page 1; “The Obeids’ duplicity and treachery was unfathomable”, page 358). Only a small portion of the book's 388 pages of text dealt with the events the subject of these proceedings, being mostly chapter 16.

50. The evidence produced by the Crown established the book was unavailable for sale between August 2014 and December 2014. Otherwise there is no evidence as to its level of distribution or sales.

51. In an affidavit sworn 25 June 2015, Mr Breene recounted the results of searching Google trends which is no different to the search annexed to his affidavit sworn 24 September 2015. It annexes press articles that were published between 14 May 2015 and 25 June 2015, whose effect has already been described, he also annexed a report of ICAC Inspector Mr David Levine, as well as the terms of reference of the review panel into the Independent Commission against Corruption Act 1988 (“ICAC Act”) which was chaired by the Honourable Murray Gleeson SC.

52. Mr Breene annexed Mr Obeid's Wikipedia page which included a number of references to the outcome of ICAC enquiries so far as they concern him. He also annexed a copy of the judgment of Foster J in Australian Competition and Consumer Commission v Cascade Coal Pty Limited and Ors [2015] FCA 607 in which his Honour declined to make a non-publication order in respect of parts of the statement of claim in those proceedings which concern Mr Obeid and members of his family.

53. On 8 July 2015, Mr Szuszkiewicz swore an affidavit annexing certain articles published on or about 8 or 9 May 2015 which referred to the listing of this matter for trial in October 2015. Again, some of the articles applied the adjective “disgraced” to Mr Obeid.

54. The Crown read six affidavits of Jessica Chan. The relevant parts of those affidavits were as follows:

55. In the most recent affidavit sworn 23 September 2015, Ms Chan included her own Google trend search results for “Eddie Obeid” which yielded a similar result to that of Mr Breene's, namely a spike in interest in late 2013 and a diminished interest since then.

56. She also confirmed the last of the material on ICAC's website concerning Operation Cyrus, being an enquiry into the subject matter of these proceedings, was removed on 18 September 2015.

57. In her affidavit sworn 29 May 2015, Ms Chan analysed the 1,800 articles referred to in Mr Breene's affidavit of 19 May 2015 as follows.

58. First, of the 1,800 newspaper articles forming exhibit TJB1 to that affidavit, she deduced that 485 of them were both published within metropolitan Sydney and had Mr Obeid and ICAC as the primary subject of the article and referred to Mr Obeid in an inflammatory manner.

59. Second, of the 1,085 unique articles, that is articles that were not duplicates of each other, published in a newspaper with a Sydney distribution, she identified that the peak period for published articles was reached during 2013, this reduced slightly in 2014, and there was a marked drop off relatively in the first five months of 2015.

60. Third, of the 485 articles published within the metropolitan Sydney area that had Mr Obeid and ICAC as the primary or secondary subject of the article, again the peak publications occurred in 2013, lessened in 2014 and significantly reduced in the first five months of 2015.

61. Fourth, of the 2004 news radio broadcasts which made reference to Mr Obeid, she deduced that 1,098 concerned broadcasts that were within the Sydney metropolitan area, and of those 1,098, the peak occurred in 2013, namely 580. It lessened in 2014, 436, and there was a significant reduction in the first five months of 2015, namely 43.

62. This review of the material bears out the findings of Johnson J in Obeid (No 1) at [53], namely, that there has been a “steady flow of adverse media publicity” concerning Mr Obeid over a number of years, but that there has also been a significant diminution in that publicity in the course of 2015, especially since he was arraigned (see Obeid (No 1) at [65]).

63. In particular there has been relatively little publicity since May 2015 of any material concerning the events the subject of these proceedings or of ICAC's findings concerning those events, although in the articles concerning other topics there are repeated references made to Mr Obeid being “corrupt” or “disgraced”, and in some cases to his having been found to be corrupt.

64. As noted, on this application there has been a focus on this latter aspect, in particular, it is contended the effect of the publicity is such that it would re-enforce in a jury panel's mind that Mr Obeid is generally corrupt and that in fact he has been found to be so by a body with public standing, indeed one of a quasi-judicial nature which is presided over by former judges. In view of that contention, I will address this aspect of the publicity further by making three points.

65. The first is that I consider it very unlikely that members of the jury panel will have any recollection or understanding, much less any detailed recollection or understanding, of so much of the publications described above that concerns the events the subject of these proceedings. Those events are anything but notorious or famous.

66. However, it is also clear that if a juror was so minded they could locate material concerning those events, possibly including ICAC's findings, by searching on the internet. Of itself, that conclusion does not advance the application for a trial by judge alone very far. Such an enquiry by a juror would constitute an offence under s 68C of the Jury Act 1977, and it would be a flagrant violation of the directions that will be given at trial. Further, it is to be noted, given that there has been no publication of the listing of Mr Obeid's trial, there is little or no reason to conclude that any prospective juror would be making such enquiries.

67. Second, given the number of articles and the level of commentary, and notwithstanding the recent diminution in the level of publicity, it seems likely that the members of the jury panel, or at least some of them, will have been exposed to adverse publicity concerning Mr Obeid including material labelling him as corrupt or disgraced.

68. Third, there is also a reasonable possibility that members of the jury panel, or at least some of them, would be aware that he has been so labelled by a body with at least some form of public standing, namely, ICAC, although it is less likely that they will be aware of the status of the person who presided over ICAC, or any specific connection between those findings and the subject matter of these proceedings, bearing in mind that both of those features was not a prominent aspect of publicity during any of the relevant periods.

69. In considering the effect of this material upon the determination of whether the “interests of justice” favour a judge-alone trial, regard must be had to the means to allay their effect on a fair trial: R v Stanley [2013] NSWCCA 124 at [43] per Barr AJ.

70. Those means include, but are not restricted to, advising members of the jury panel to apply to be excused if they consider there is a matter affecting their capacity to decide the matter impartially, especially any prejudicial view they hold concerning the accused, and repeatedly directing the jury that they must solely restrict themselves in their deliberations to the evidence and the submissions advanced in the courtroom and put aside anything they have heard outside it.

71. It is to be remembered that this is not a trial in which the Crown would lead material that, although highly relevant by its subject matter, is likely to prejudice a jury against the accused. Nor is it a matter where the alleged crime itself has achieved any notoriety such that a juror may believe they already know the supposedly salient or even sensational facts, and something about the accused’s connection with them. Instead, the concern raised by the material is knowledge or suspicion of a prejudicial tendency or characteristic of the accused, namely, to be corrupt. In my view that is precisely the type of concern which the measures I have identified will be effective against. This precise position was addressed by the statement by Kirby ACJ in R v Yuill (1993) 69 A Crim R 450, 453 to 454 as follows:

“Courts will assume that jurors, properly instructed, will accept and conform to the direction of the trial judge to decide the case solely on the evidence placed before them in the court: see Demirok (1977) 137 CLR 20 at 22. There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled.”

74. This passage reflects the collective wisdom of numerous decisions emphasising the experience of the Courts as to the capacity and propensity of jurors to approach their tasks in accordance with their oaths by deciding the matter only according to the evidence that is to be adduced in accordance with the directions they are given (see R v Jamal [2008] NSWCCA 177; 72 NSWLR 258 at [17]; John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344 at [103]).

75. Consistent with this, I do not consider that the publicity that has been directed at Mr Obeid displaying the characteristics that I have stated is such that there is an appreciable risk that jurors will not act in accordance with the directions they are given and imperil a fair trial.

Amended indictment and approach to primary facts

76. At this point it is appropriate to address one matter raised on behalf of Mr Obeid as warranting a reconsideration of Johnson J’s refusal to make an order for a trial by judge alone, namely, the grant of leave to the Crown to rely on an amended indictment.

77. The previous form of indictment is set out in Obeid (No 1) at [3], and the Crown Case Statement said to reflect that indictment is set out in Obeid (No 1) at [19].

78. The relevant change is that whereas the previous indictment alleged Mr Obeid encouraged Mr Dunn to cause the Maritime Authority to deal favourably with the lessees, the amended indictment alleges that he made “representations” to Mr Dunn to secure an advantage for the lessees without disclosing his interest in the leases to Mr Dunn.

79. The version of the Crown Case Statement that accompanied the previous version of the indictment referred to Mr Dunn having been informed of Mr Obeid's interest in the leases. These references have been deleted from the version that accompanies the amended indictment.

80. However, the earlier version of the Crown Case Statement also included, as an alternative, an allegation that Mr Obeid misused his position in communicating with Mr Dunn “irrespective of whether [Mr] Dunn understood that Edward Obeid had a financial interest” in the leases (see [29] set out in Obeid (No 1) at [19]).

81. Thus, in this respect the amended indictment reflects a case that is a refinement rather than a change to the case previously propounded by the Crown.

82. In any event, none of these changes has any bearing on the judgment in Obeid (No 1). Nothing in that judgment turned upon these aspects of the Crown case. They do not bear upon his Honour's assessment of the significance of the publicity or the nature of the factual issues the jury were likely to address especially his Honour's characterisation of them as “factual issues that require the application of objective community standards” (s 132(5)).

83. Since Obeid (No 1), the Court has been advised that based on discussions between counsel it is anticipated that there will be agreement on various factual matters that may shorten the length of the trial.

76. Mr James QC's written submissions on this application stated that the “approach is such that it is unlikely that questions of credit, which might fall within the traditional role of the jury will arise” (at [11]). This approach is certainly to be encouraged but at the moment it is only an aspiration rather than a reality. Further, in the Crown's written submissions on this application, reference is made to a number of witnesses who the Crown proposes to call who to date have been unwilling to cooperate with the Crown. These include members of Mr Obeid's extended family.

77. The Crown submissions indicate that it intends to apply under s 38 of the Evidence Act 1995 for leave to cross-examine these witnesses. It seems that that application is likely to be opposed.

78. It is not necessary to enter into any debate over the use of that provision at this point. Suffice to state that the calling by the Crown of witnesses who to date have been uncooperative suggests there are still likely to be witnesses whose credit on some matters may be in doubt, and that there are matters of primary fact for the jury to consider including by reference to their observation of the manner in which some witnesses give evidence.

Objective community standards

87. As stated in Obeid (No 1) at [90], Johnson J concluded that the issues raised by the third and fifth elements of the offence of wilful misconduct in public office were “issues that required the application of objective community standards”. I address these elements in some detail in Obeid (No 2), especially at [108] to [110] in relation to wilful misconduct and [111] to [121] in relation to whether the misconduct is serious. Further, in Obeid (No 2) at [63] to [85] I address the underlying issue of the scope and nature of the public duty owed by an MLC. In my respectful view, the discussion of those matters in Obeid (No 2) only serves to demonstrate the correctness of this aspect of Obeid (No 1).

88. A number of points were raised concerning this aspect of the matter by Mr James QC which I will address.

89. First, Mr James QC contended that by their professional training and experience judges are just as well equipped or even better equipped to make judgments on factual issues of this kind compared to juries. However, whether or not that is so is irrelevant. As I have stated, while the existence of such an issue is not determinative of these applications, s 132(5) evinces a clear parliamentary preference that such issues should be determined by juries in cases where persons are charged with serious criminal offences (see R v Belghar at [96], [97] and [100] per McClellan CJ at CL).

90. Second, Mr James QC placed reliance on the judgment in Greiner v ICAC (1992) 28 NSWLR 125 as having a significant bearing on this issue. In Greiner an issue arose concerning the identification of the standards relevant to an assessment of whether the conduct of a premier and a minister constituted reasonable grounds for their dismissal so as to satisfy s 9(1)(c) of the ICAC Act. In his written submissions Mr James QC pointed to a passage in Greiner in which Gleeson CJ stated that such standards must be identified and applied but not created (at 147). Priestley JA made an observation to the same effect (at 171). As I understand it, the relevance of this is said to be that the task of identifying such standards is therefore not suitable for a jury but only for a judge.

91. In part that contention is foreclosed by s 132(5). Otherwise it overlooks Obeid (No 2). In Obeid (No 2) at [76] I identified the scope of the directions that would be given to a jury in relation to the functions and duties of an MLC. Thus at one level the task of identifying the standards has been undertaken by a judge and the jury will be instructed accordingly. Further, I also identified the nature of the inquiry that must be undertaken to determine whether a breach was wilful (Obeid (No 2) at [108]). Further, the formulation of the fifth element identifies the factors for the jury to consider in determining whether it is made out. Hence, in this case the jury will not simply be left to provide a subjective opinion on the appropriateness or otherwise of Mr Obeid's conduct.

92. Mr James QC also submitted that the nature of the pre-trial publicity will have the effect “predicted by Priestley JA and restated by Gleeson CJ in Greiner”. I understand this to be a contention that the more the elements of the offence require an assessment to be undertaken by reference to community standards, the more likely they will be influenced by an adverse view of Mr Obeid derived from pre-trial adverse publicity. However, that contention travels no higher than being another alleged instance of the potential for an unfair trial based on adverse publicity, a matter I have already addressed.

93. Third, at one point in his written submissions Mr James QC contended that Greiner stated the parameters of the offence of wilful misconduct in public office, at least for the purposes of these proceedings. It does not. Greiner did not involve any consideration of this offence and did not otherwise concern the standards applicable to parliamentarians who have not been commissioned as ministers of the Crown. The relevant discussion of the standards applicable to parliamentarians for these proceedings is set out in Obeid (No 2) at [63] to [85].

Conclusion on section 130A

94. I return to s 130A(1) of the Criminal Procedure Act and the question of whether in the court's opinion it would not be in the interests of justice for Johnson J’s order to be binding.

95. The matters said to warrant consideration of his Honour's orders were the change in the Crown case as exemplified in the amended indictment, the likelihood of fewer or even no disputes over matters of primary fact, the supposedly flawed nature of the judgment in Obeid (No 1) and the fact that the orders made by Johnson J are currently the subject of challenge in the Court of Criminal Appeal.

96. It follows from the above that none of these matters considered individually or collectively warrant a conclusion that it is in the interests of justice for his Honour's orders not to be binding. The amendment of the indictment and the consequential “changes” to the Crown case are immaterial to a determination of whether a trial by judge alone should be ordered. The prospects of agreement over many matters of primary fact remain just that, and it is nevertheless likely that there will still be a number of such matters for the jury to consider. The alleged flaws in Obeid (No 1) that were raised before this court are without merit. The fact that orders made as a consequence of Obeid (No 1) are under challenge is irrelevant. They remain valid unless and until they are set aside.

Fresh consideration

97. Nevertheless, contrary to my preferred view as to the operation of s 130A(1), I will reconsider the matter afresh. I have reviewed the entirety of the factual material concerning the adverse publicity and the arguments put in support of the application for trial by judge alone. Having considered that material, I will address the various factors that bear upon an assessment of whether it is in the interests of justice to order a trial by judge alone (see R v Simmons, R v Moore No 4 [2015] NSWSC 259; “Simmons”). In doing so I accept that there is no presumption in favour of a trial by jury (Simmons [55] to [57]), although, as stated, the court still needs to be affirmatively satisfied that it is in the “interests of justice” to so order.

98. I have already addressed the effect of the adverse publicity and the significance of the directions that will be given to the jury. Further, I accept that Mr Obeid's preference for a trial by judge alone is a matter to be considered (Simmons at [58] to [60]), although it is not determinative. In this case I accept that there is a genuine basis for Mr Obeid to have concern about the effect of adverse publicity on his capacity to obtain a fair trial, although for the reasons I have stated I do not consider that there is an appreciable risk that there will not be a fair trial if it is held in front of a jury.

99. Even if the efficiencies of a trial by judge alone are a matter that can be considered (Simmons at [67]), I do not accept they would make much difference to this matter. The trial is likely to be relatively short by this court's standards. Any reduction in the length of the hearing that would be derived from the matter proceeding by way of a judge alone trial is likely to be counterbalanced by the time involved in writing a judgment concerning the outcome. There may be an unresolved question as to whether the determination of factual issues, such as credibility, are truly matters that tend in favour of a trial by jury compared to trial by judge alone (see Simmons at [73] to [82]). I will assume in Mr Obeid's favour that they do not.

100. Mr James QC submitted that one advantage of a judge alone trial would be that the parties would have the benefit of reasons which in a matter such as this would aid transparency (see Simmons No 4 at [70]). There is some force in this, but I do not consider that it adds much to the application. The Crown case is not particularly complex factually. The nature of the defence case is not yet known. At least in the event of a conviction then the path to that result should be apparent from the structure of the directions in the summing-up. When the defence case is outlined the same observations may apply in respect of an acquittal.

101. There remains the issue posed by s 132(5). Even if one assumes in Mr Obeid's favour that the issue of whether any breach by him was wilful or not is not a matter which falls within s 132(5), the issue presented by determination of the fifth element most certainly answers the description of a “factual issue that requires the application of objective community standards”. If ever there was a significant issue for a jury to apply objective community standards in hearing a serious criminal charge, it is in the application of the fifth element of the crime of wilful misconduct in public office, especially as it applies to parliamentarians.

102. When proper regard is had to that matter in the context of s 132 of the Criminal Procedure Act, as well as to my earlier findings concerning the adverse publicity and my assessment of the other relevant factors, the result is that I am not satisfied that it is “in the interests of justice” to order a trial by judge alone.

Section 5F(3)(b) of the Criminal Appeal Act

103. Against the contingency that I might dismiss the application, Mr James QC submitted that I should certify this matter as a proper one for appeal pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912. The principles governing such an application are set out in Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17, 71 NSWLR 96 [5] to [9]. In particular, I must exercise caution in doing so as certification precludes the Court of Criminal Appeal from considering whether a grant of leave is appropriate or not. In circumstances where the application to certify is opposed and where the appropriateness of the matter being appealed is not beyond doubt, I decline to certify.

Orders

104. In addition to dismissing Mr Obeid's application, I will list the matter for mention a week before the trial to ascertain its progress and will grant the parties liberty to apply.

105. Further, I note that just prior to hearing this matter I heard an application for the court to certify the orders made in Obeid (No 2) under s 5F(3)(b) of the Criminal Appeal Act. In the course of that application another senior counsel appearing for Mr Obeid suggested for the first time that there may be an application to exclude some of the Crown's evidence on the basis that its adducement involves a breach of parliamentary privilege. It needs to be clearly understood that any such application should be made prior to the trial commencing.

106. Accordingly, the court orders that:

1. The accused be granted leave under s 132A(1) of the Criminal Procedure Act to apply for an order for a trial by judge alone up to and including 23 September 2015.

2. The accused's notice of motion filed 23 September 2015 be dismissed.

3. The proceedings be listed for directions at 9.30am on 12 October 2015.

4. There be liberty to apply on one day's notice.

**********

Amendments

28 June 2016 - Restriction lifted.

Decision last updated: 11 February 2020