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R v Obeid (No 5)

R v Obeid (No 5)

Case [2015] NSWSC 1967 17 December 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Obeid (No 5) [2015] NSWSC 1967
Hearing dates: 17 December 2015
Date of orders: 17 December 2015
Decision date: 17 December 2015
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The notice of motion filed 14 December 2015 be dismissed.
(2) Pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), it being necessary to prevent prejudice to the proper administration of justice, this judgment is not to be published.

Catchwords: Criminal Law – application to stay criminal proceedings pending application for special leave to appeal from Obeid v R [2015] NSWCCA 309 – effect of stay would be to cause significant delay in criminal trial – approach to application – same approach as that of intermediate court of criminal appeal considering stay pending application for special leave – factors – R v Elliot – delay in criminal trial as a result of interlocutory appeal is per se prejudicial – assessment of prospects of special leave – proposed questions concern jurisdiction and whether parliamentarian is a public officer for purposes of common law offence of wilful misconduct in public office - nevertheless prospects of special leave being granted very low – applicant unlikely to be successful in appeal – points available if applicant convicted – prejudice to applicant if application not granted – no substantial effect on legal rights – will endure stress and potential reputational damage – less weight attributed to that effect compared with delay to trial – application dismissed
Legislation Cited: • Australia Act 1986 (Cth)
• Australia Act 1986 (UK)
• Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8
• Criminal Appeal Act 1912 (NSW), s 5F(3)
• Criminal Procedure Act 1986 (NSW), s 128, s 132
• Judiciary Act 1903 (Cth)
Cases Cited: • Abibadra & Ors v The Queen [2011] HCA Trans 171
• Adler v The Queen [2004] HCA Trans 546
• Bacon v Rose & Anor [1972] 2 NSWLR 793
• Jennings Constructions v Burgundy Royale Investments (No 1) [1986] HCA 84; 161 CLR 681
• Michael Aubrey (aka Albury) v The Queen [2013] HCA Trans 110
• Obeid v Ipp (No 2) [2015] NSWSC 1852
• Obeid v R [2015] NSWCCA 309
• Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia (No 2) [1998] HCA 32; 72 ALJR 869
• R v Boston [1923] HCA 59; 33 CLR 386
• R v Chaytor [2011] 1 AC 684
• R v Elliott [1996] HCA 21;185 CLR 250
• R v Obeid [2015] NSWSC 897
• R v Obeid (No 2) [2015] NSWSC 1380
• R v Obeid (No 3) [2015] NSWSC 1441
• R v Obeid (No 4) [2015] NSWSC 1442
• R v Quach [2010] VSCA 106; 201 A Crim R 522
• Rinehart v Welker [2012] NSWCA 1
• Sankey v Whitlam [1978] HCA 43; 142 CLR 1
Category: Procedural and…

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 5)

Details

AGLC: Content removed [2015] NSWSC 1967
Case: [2015] NSWSC 1967
Decision Date: 17 December 2015

CaseChat Overview and Summary

The applicant, Mr Obeid, sought an order staying the criminal proceedings against him pending an application for special leave to appeal. The matter was before the High Court of Australia, with the Court of Appeal's decision in Obeid v R [2015] NSWCCA 309 being the subject of the application. The application was made by Mr Obeid, a former member of parliament, who was charged with multiple counts of bribery, misconduct in public office, and conspiracy. The legal issues before the High Court were whether the application to stay should be granted and the appropriate approach to be taken when considering such an application. The Court was required to balance the prejudice to Mr Obeid if the stay was not granted against the delay that would result if it was granted.

The High Court determined that the appropriate approach to be taken when considering an application to stay criminal proceedings pending an application for special leave to appeal was the same as that of the intermediate court of criminal appeal. The Court considered the factors set out in R v Elliot, which held that delay in a criminal trial as a result of an interlocutory appeal was per se prejudicial. The Court assessed the prospects of special leave being granted and found that while the proposed questions of law concerned jurisdiction and the definition of 'public officer' for the purposes of the common law offence of misconduct in public office, the prospects of special leave being granted were very low. The Court considered the points available if Mr Obeid was convicted, the prejudice to him if the application was not granted, and the potential reputational damage he would suffer. However, the Court gave less weight to these factors compared with the delay to the trial. Ultimately, the application was dismissed, and the criminal proceedings against Mr Obeid would continue.

Orders