R v Obeid (No 5)

[2015] NSWSC 1967

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Act 2010 (NSW), it being necessary to prevent prejudice to the proper administration of justice, this judgment is not to be published.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 other rulings
Parties:	Regina – Applicant Edward Moses Obeid – Respondent
Representation:	Counsel: P. Neil SC – Crown G. Reynolds SC, S. Nixon and D. Hume – Respondent   Solicitors: Solicitor for Public Prosecutions – Crown Breene & Breene – Respondent
File Number(s):	2015/053925
Publication restriction:	Restriction lifted.

EX TemporE Judgment (revised from Transcript)

1. On 14 December 2015 I granted the accused, Edward Moses Obeid, leave to file in court a notice of motion seeking an order that these proceedings be stayed pending the hearing of an application by him for special leave to appeal from the judgment of the Court of Criminal Appeal dated 8 December 2015 (Obeid v R [2015] NSWCCA 309). I listed the motion for hearing before me today.

2. Mr Obeid is due to stand trial in this Court on 10 February 2016. For the reasons that will be explained, at least one practical effect of granting the order sought by Mr Obeid would be to vacate that trial date and adjourn the trial for a substantial period. For the reasons that follow, the motion will be dismissed and I decline to vacate the trial date.

3. Consistent with previous determinations in relation to these proceedings and it being necessary to prevent prejudice to the proper administration of justice, I will order pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 that this judgment is not to be published.

Background

4. It is necessary to outline the background to this application in some detail. On or about 20 February 2015 a notice was issued out of the District Court of New South Wales to Mr Obeid advising him of the intention of the Director of Public Prosecutions to file an indictment against him on 13 March 2015. Pursuant to a direction issued under s 128(2) of the Criminal Procedure Act1986 an indictment was filed in this Court.

5. On 8 May 2015 Mr Obeid was arraigned in this Court on one count of the common law offence of willfully misconducting himself in public office. He pleaded not guilty. His trial was fixed to commence on 12 October 2015.

6. Although there has been an amendment to the indictment in the meantime, from the commencement of the proceedings, the gravamen of the criminality alleged against Mr Obeid is as described in R v Obeid (No 2) [2015] NSWSC 1380 at [14] to [22] (“Obeid No 2”) which should be read together with this judgment. The crime is alleged to have been committed between 1 August 2007 and 30 November 2007 and concerns Mr Obeid's alleged dealings with a senior employee of the Maritime Authority of New South Wales while Mr Obeid was a member of the Legislative Council of New South Wales.

7. The only pre-trial application that was notified at the time of Mr Obeid's arraignment was an application under s 132(1) of the Criminal Procedure Act for his trial to be heard by a judge alone. This application was heard by Johnson J on 26 June 2015. His Honour dismissed the application on 7 July 2015 (R v Obeid [2015] NSWSC 897; “Obeid No 1”). Mr Obeid sought leave to appeal from that judgment pursuant to subs 5F(3) of the Criminal Appeal Act1912.

8. On or about 20 August 2015 the Crown notified Mr Obeid that it intended to apply for leave to amend its indictment and provided an amended Crown case statement. This appears to have resulted in an adjournment of the application for leave to appeal from Obeid No 1 which had been listed for hearing on 29 August 2015.

9. On 9 September 2015 I granted the Crown leave to amend its indictment. I also granted Mr Obeid leave to file in Court a notice of motion raising a demurrer to the amended indictment and otherwise seeking to quash the indictment or stay the proceedings. Argument over that application proceeded into the next day with written submissions filed in subsequent days.

10. On 21 September 2015, and prior to providing a judgment on the demurrer application, I varied the commencing date for the trial from 12 October 2015 to 19 October 2015. This course was taken because I was informed that the week of 12 October 2015 would be used for discussions between the parties for the purpose of narrowing the issues in dispute at the trial.

11. On 22 September 2015 I overruled the demurrer and otherwise dismissed Mr Obeid's motion (Obeid No 2). Although a number of matters were addressed in that judgment two matters in particular should be noted. First, I addressed and rejected a contention that a Member of the Legislative Council of New South Wales did not hold a "public office" for the purposes of the common law offence of wilful misconduct in public office (Obeid No 2 at [24] to [62]). Second, I addressed and rejected a contention that this Court did not have jurisdiction to entertain the charge against Mr Obeid because the subject matter of the charge was within the "exclusive cognisance" of the Legislative Council or that a hearing of the charge would infringe Article 9 of the Bill of Rights as it applies in New South Wales (Obeid No 2 at [122] to [159]).

12. On 28 September 2015 I refused an application under s 5F(3)(b) of the Criminal Appeal Act to certify the orders made on 22 September 2015 as proper ones for appeal (R v Obeid (No 3) [2015] NSWSC 1441). On the same day I heard and refused a further application for a trial by judge alone (R v Obeid (No 4) [2015] NSWSC 1442; “Obeid No 4”).

13. In the meantime Mr Obeid filed an application for leave to appeal from the judgment in Obeid No 2. His application was listed for hearing on 7 October 2015. On 2 October 2015 Mr Obeid applied to RA Hulme J, sitting as the Court of Criminal Appeal, to adjourn that application. His Honour granted the adjournment and listed the application for leave to appeal for hearing on 20 November 2015. In view of that, on 8 October 2015, I vacated the trial date of 19 October 2015. Instead, I listed the trial to commence on 10 February 2016 on the understanding that the Court would not sit on 12 February 2016. Those dates were chosen to suit the convenience of counsel whom it was said will appear for Mr Obeid at the trial.

14. The application for leave to appeal was heard by the Court of Criminal Appeal (Bathurst CJ, Beazley P and Leeming JA) on 20 and 24 November 2016. As noted, judgment was handed down on 8 December 2015. Their Honours granted leave to appeal but dismissed the appeal.

15. Five issues were addressed by the Court of Criminal Appeal which largely reflected the matters argued in Obeid No 2, namely, the jurisdiction of this Court to hear the charge, whether a Member of the Legislative Council is a public officer, whether the hearing of the charge would infringe Article 9 of the Bill of Rights, whether the formulation of the elements of the crime of wilful misconduct in public office stated in R v Quach [2010] VSCA 106; 201 A Crim R 522 is correct and whether I erred in provisionally formulating a duty of a Member of the Legislative Council in terms that are analogous to that owed by a fiduciary. The Court of Criminal Appeal resolved the first four issues adversely to Mr Obeid. In relation to the fifth issue the Court noted the view expressed in Obeid No 2 on that topic was provisional and stated that its final formulation should await the trial (at [151]).

16. On 15 December 2015 an application for special leave to appeal was filed on behalf of Mr Obeid. The two special leave questions identified in the application relate to the first two issues determined by the Court of Criminal Appeal just noted.

17. Finally, at this point it should be noted that none of the matters determined by the Court of Criminal Appeal turned on the amendment to the indictment that was foreshadowed in August 2015. So much of the Crown case as turned on those amendments was only a very minor part of the argument the subject of Obeid No 2 and was irrelevant to the renewed application for trial by judge alone determined by Obeid No 4 (see Obeid No 4 at [96]).

Likely Delay

18. As noted, the Court of Criminal Appeal's judgment was handed down on Tuesday, 8 December 2015. The first date in 2016 on which the High Court is hearing applications for special leave to appeal is 12 February 2016. As noted, the trial is due to commence on 10 February 2016. Somewhat belatedly, on 16 December 2015, Mr Obeid's solicitor made an inquiry of the High Court's Registry and was advised, not surprisingly, that, "the February 12 special leave list is completely full", that if submissions were filed quickly, it was nevertheless "extremely unlikely" that any such application could be heard on 12 February 2016 and that it was more likely to be heard in March or April 2016. Nevertheless, it was always open to Mr Obeid shortly after the Court of Criminal Appeal published its judgment to quickly file a special leave application and to at least apply to a single judge of the High Court to have the matter listed for hearing on 12 February 2016 with a truncated timetable for the exchange of written submissions. If successful this approach would have effectively preserved the trial date in that empanelment could have been put back to 15 February 2016 when the outcome of the special leave application would be known. I can indicate that if that course was to in fact transpire, I would be likely to accede to such an application as the dates of 10 and 11 February 2016 could still be utilised for pre-trial applications.

19. However, Mr Obeid chose not to take, or even try to take, that course. Instead he has sought a stay of the proceedings generally pending the hearing of an application for special leave on an unspecified date most likely in April 2016 accompanied by an undertaking from his solicitor to pursue the application with expedition. It follows that to accede to the application would involve adjourning the trial date to some unspecified time. Given the state of the lists in this Court, and the fact that Mr Obeid is not in custody, a new trial date would not be likely to be fixed before July 2016, being almost 13 months after the proceedings were first commenced and almost nine years after the events that gave rise to them. An adjournment of the trial for that period would be a significant disruption to the ordinary process of criminal proceedings. The delay may in fact be worse given that Mr Obeid has commenced civil proceedings against persons associated with the Independent Commission Against Corruption's (“ICAC”) inquiries into him, including the inquiry that led to the charge the subject of these proceedings (see Obeid v Ipp (No 2) [2015] NSWSC 1852). Those proceedings are listed to be heard in May 2016. A significant amount of publicity is likely to be generated by that matter especially if Mr Obeid gives evidence in his own case and, in turn, that may bear upon the timing of any criminal trial.

Approach

20. The approach that I will adopt to this application is that which I conclude would be adopted by an intermediate Court of Appeal hearing an application to stay criminal proceedings pending an application for special leave to appeal to the High Court.

21. In Rinehart v Welker [2012] NSWCA 1 ("Rinehart") the Court of Appeal held that the approach to be adopted to whether a stay of the judgment or order should be made in civil proceedings pending an application for special leave to appeal to the High Court was that enunciated by Brennan J in Jennings Constructions v Burgundy Royale Investments (No 1) [1986] HCA 84; 161 CLR 681 at 684 ("Jennings"), namely, that "exceptional circumstances must be shown" before the jurisdiction to grant a stay is exercised. Further, in Jennings Brennan J held (at 685) that if a stay is necessary to preserve the subject matter of the appeal, the factors relevant to an assessment of whether a stay should be granted are whether there is a substantial prospect of special leave being granted, the conduct of the applicant for the stay, whether the grant of a stay will cause loss to the respondent and where the balance of convenience lies.

22. To an extent, these principles have an analogous application in relation to criminal proceedings, especially their emphasis on an assessment of the prospects of success of the application for special leave to appeal. However, as I will explain, the analogy is not a complete one. Three related matters should be noted.

23. First, the judgments in Rinehart and Jennings identified the subject matter of the appeal and the necessity to preserve it as a pre-condition to the grant of a stay. In Rinehart at [18] the Court of Appeal cited the following passage from the judgment of Hayne J in Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia (No 2) [1998] HCA 32; 72 ALJR 869 at [3] to [4], namely:

“To speak only of preserving the subject-matter of litigation may in some cases obscure the fact that the jurisdiction can be invoked, if to grant a stay is necessary to prevent the exercise of rights of appeal being rendered futile or their exercise in circumstances where restoration of the status quo cannot be achieved.

The jurisdiction to grant a stay is, however, an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.” (emphasis added)

24. In the context of this matter the reference in this passage to the exercise of the “rights of appeal” not being rendered futile is critical. The reference to the "restoration of the status quo" should be seen in that context. Thus the focus of this part of the inquiry is on damage to legal rights. In this case, and subject to the matter next considered, a refusal of special leave will have no effect on Mr Obeid's legal rights in that, if he is convicted, he will still be able to agitate the points he now wishes to argue in a further application to the High Court.

25. Second, Senior Counsel for Mr Obeid, Mr Reynolds SC, identified a “right” of Mr Obeid that was said to be imperilled by the continuation of the prosecution against him as being the "right not to be exposed proceedings that have no legal substance" (see Sankey v Whitlam [1978] HCA 43; 142 CLR 1 at 24 per Gibbs ACJ; "Sankey"). Mr Reynolds SC cited Sankey and the decision of Street CJ in Eq in Bacon v Rose & Anor [1972] 2 NSWLR 793 as authorities for his ultimate proposition that any concerns about the fragmentation of the process of a criminal trial are of less weight where the point sought to be raised is one that either goes to the jurisdiction of the Court or the validity of the charge in question. In my view care should be taken in relying on those decisions in the present context. The decisions cited concerned either a civil court or an appellate court exercising a declaratory and not an appellate jurisdiction in respect of criminal proceedings (described as "administrative or ministerial" by Street CJ in Eq in Bacon at 797). However, this case concerns an application for leave to make a further interlocutory appeal in circumstances where the Court of Criminal Appeal and, to the extent relevant I, have already determined that the “right” identified by Mr Reynolds SC by reference to Sankey is not imperilled.

26. Third, ultimately the approach adopted by the High Court to interlocutory appeals in criminal cases and which therefore informs applications such as this one was enunciated in the following passage in R v Elliott [1996] HCA 21; 185 CLR 250 at 257:

“Obviously two considerations are in competition here. On the one hand, the prosecution is entitled no less than the defence to a trial according to correct rulings on questions of law. On the other, interlocutory appeals in criminal trials delay the trial and are likely to produce miscarriages of justice in ways unrelated to the ruling. The personal and financial stress of criminal trials, the dimming of witnesses' memories and the sheer delay between criminal conduct and the administration of condign punishment are factors which weigh heavily in favour of expediting the process of the criminal trial even though incorrect rulings have to be accepted by the prosecution in order to achieve that object, subject to s 450A. The legislative scheme gives greater weight to the dispatch of criminal trials than it has given to protecting the prosecution's ability to appeal against rulings which it thinks to be incorrect.

It follows that a grant of special leave in the present case would significantly frustrate the process of the criminal trial as prescribed by the Victorian Parliament. This Court has long been extremely reluctant to intervene in criminal trials by granting special leave to appeal against interlocutory decisions. The present case, though it raises important questions for consideration, does not warrant a departure from the practice of this Court and the policy that is manifest in the Crimes Act (Vict).” (emphasis added)

27. The judgment in Elliott concerned a proposed interlocutory appeal by the Crown but it is equally applicable to such an application by the accused. The approach stated in Elliott has been consistently applied to such applications by accused persons in the High Court (see, for example, Abibadra & Ors v The Queen [2011] HCA Trans 171; Michael Aubrey (aka Albury) v The Queen [2013] HCA Trans 110) including in cases where a reasonably arguable constitutional point was raised (see, for example, Adler v The Queen [2004] HCA Trans 546).

27. The written and oral submissions made on behalf of Mr Obeid by Mr Reynolds SC repeatedly emphasised the lack of supposed urgency in the hearing of the charge against him and the lack of prejudice that would be suffered by the Crown if there was to be another reasonably lengthy adjournment of the trial.

28. The above passage from Elliott illustrates the fallacy in this approach which appears to draw upon an analogy with the delay in the hearing of civil proceedings in considering whether a stay or lengthy adjournment pending an application for special leave to appeal should be granted in a criminal case. In criminal cases the imperilling of the expeditious dispatch of the trial of serious charges by interlocutory appeals is per se prejudicial and as such is to be avoided as much as possible. It is both in the community's and in the accused's interests that such proceedings be heard as quickly as possible. Delays, especially delays caused by interlocutory appeals, have the potential to undermine public confidence in the criminal justice system. In this case the delay between the alleged "criminal conduct" and the potential "administration of condign punishment" is already significant (see Elliott). Further, the passage of time since the events the subject of the charge has the real potential to affect the recollections of the various witnesses, in particular the evidence of the person referred to in the indictment which is likely to be of great significance to the outcome of the case. The fact that he may have previously given evidence before the ICAC is of little moment.

29. It follows from what I have already found that the delay and relevant prejudice that would be occasioned by acceding to the motion in its present form is a substantial barrier to it being granted.

Prospects of Success

31. It follows from the above that one matter of great significance to the application is the prospects of success of the application for special leave to appeal.

32. As noted, the application for special leave to appeal identifies the first two matters determined by the Court of Criminal Appeal described above as matters that warrant a grant of special leave. The written submissions contend that the so-called exclusive cognisance point "involves multiple points of the highest jurisprudential and constitutional importance", that the second point exposes an issue on which there was a "2:2 split" in the High Court (in R v Boston [1923] HCA 59; 33 CLR 386), that there is "substantial doubt" in relation to the Court of Criminal Appeal's reasoning and that this case is a suitable vehicle for the determination of those points.

33. In amplification of those submissions, the written submissions point to various alleged errors in the Court of Criminal Appeal's reasoning and assert that the various arguments put to the Court of Criminal Appeal were not addressed. The submissions also emphasise how the first special leave question is jurisdictional in nature and the submissions rise to the level of contending that it is "inappropriate for this Court to proceed to hear a matter in which there are substantial doubts about its jurisdiction". This contention rose even higher in oral submissions as it was submitted that, if I was to preside over the trial of Mr Obeid, I would be at risk of being declared to be in contempt of Parliament (citing the precedent from 1667 referred to in R v Chaytor [2011] 1 AC 684 at [114]).

34. Detailed submissions were provided in support of all these points, which I have considered. However, bearing in mind the approach stated in Elliott, I consider that the prospects of special leave to appeal being granted are very low. Four matters should be noted.

35. First, the question of "exclusive cognisance" was decided by the Court of Criminal Appeal on the (very favourable) assumption to Mr Obeid that the "powers and privileges of the Legislative Council are, subject to statute, the same as those of the House of Commons" ([2015] NSWSC 309 at [18]) and without determining whether the Australia Act 1986 (Cth) and the Australia Act 1986 (UK) (“the Australia Acts”) had that effect. This occurred in circumstances where a deliberate decision had been made not to issue notices under s 78B of the Judiciary Act 1903 (Cth) agitating that issue (at [16]). No reliance was placed on the Australia Acts in the proceedings before me (Obeid No 2 at [148]). On this application, Mr Reynolds SC contended that the absence of s 78B notices does not represent any impediment to his relying on the Australia Acts. I will not enter further into that debate, which may raise a question about the operation of s 106 of the Constitution. It suffices to note that this is potentially a significant matter affecting the suitability of these proceedings as a vehicle for the determination of the first issue on an interlocutory appeal.

36. Second, the Court of Appeal's judgment was unanimous. A reading of that judgment does not suggest any room for substantial doubt on the answer to the two principal points said to found an application for special leave.

37. Third, given the fragmentation of the process of criminal justice that ensues from interlocutory appeals in such cases, another matter affecting whether special leave will be granted is likely to be an assessment of whether the appeal is likely to succeed. Experience suggests that there is a category of case that raises issues of general legal importance that are the subject of a grant of special leave to appeal even though the High Court does not consider that the particular applicant's prospects of ultimate success are strong. Such cases often result in the appeal being dismissed but the High Court's judgment represents a definitive statement of the law on the particular topic. However, an interlocutory appeal in criminal proceedings, where the same points can be the subject of an appeal if the applicant is convicted, generally does not fall into that category.

38. In that regard, and as noted, Mr Reynolds SC's submissions sought to detail the alleged flaws in the Court of Criminal Appeal's reasoning. Ultimately, he contended that the principal flaw in the Court's judgment in respect of both issues was the Court's alleged failure to state a definitive legal test from which the conclusions on jurisdiction and public officer followed. Assuming, without deciding, that that is a correct analysis of the Court of Criminal Appeal's judgment and that constitutes a "flaw", that is a type of point best considered in any appeal following conviction, but not in an interlocutory appeal.

39. In the end result, for Mr Obeid to ultimately be successful in any appeal, he will have to persuade the High Court that parliamentarians who act outside the parliamentary chamber and use their position to secure pecuniary advantages for themselves or their associates from the executive are immune from the jurisdiction of the criminal courts and that, unlike other public officials, they are immune from the offence charged. Such an outcome would be counterintuitive, to put it politely. I regard Mr Obeid's prospects of demonstrating that to be very low.

40. Fourth, of the points raised in support of the application, perhaps the strongest is the contention that a jurisdictional argument of substance might constitute an exceptional circumstance as referred to in Elliott. However, for the reasons given by the Court of Criminal Appeal, that argument is particularly weak. The conduct did not occur in the parliamentary chamber and there is nothing to suggest it was in any way connected to such proceedings in the chamber. In relation to the concept of public officer, I consider that the strong trend of authority is that parliamentarians are such persons, and that conclusion accords with the underlying rationale for the offence in question.

41. Bearing in mind the test stated in Elliott, I consider Mr Obeid's prospects of obtaining special leave to appeal to be very low.

Other Factors

42. Most of the balance of the points raised in support of this application concern prejudice and the effect of delay. They have already been addressed. However, three matters in particular should be noted.

43. First, one part of Mr Reynolds SC's written submissions contends that there would be "massive prejudice" to Mr Obeid if a stay is not granted in that he will be faced with the "stress and expense of a criminal trial" for which there may be no jurisdictional basis and, if convicted but his special leave points are later vindicated, he will suffer "needless huge damage to his reputation".

44. As stated, the focus of considering prejudice on applications such as this concerns the effect of a refusal or a grant of stay on legal rights and interests. However, I accept that matters of this kind can also be considered.

45. I attribute very little weight to a suggestion of harm occasioned by the expense of a criminal trial. There is no evidence before the Court as to Mr Obeid's means. However, I note that since at least August 2015 Mr Obeid has had two teams of counsel working on his case. Over time this Court has been advised of five different counsel who would appear at the trial on his behalf, four of whom are senior counsel.

46. Even without evidence, I can accept that facing a criminal trial will occasion stress to Mr Obeid, although unresolved pending charges also weigh heavily on accused persons.

47. As for reputational damage, I pass over the reputational benefit that Mr Obeid may derive if he is acquitted. The premise of both applications for a trial by judge alone was that Mr Obeid's reputation had already been irreparably damaged by ICAC's investigations into him and the subsequent publicity. In Obeid No 4 at [69] I accepted that contention to an extent. However, I accept that if Mr Obeid is convicted, further damage to his reputation is likely to follow, and that may not be totally remedied if he is later vindicated on appeal. Nevertheless, in balancing the competing interests that arise from a significant delay in a criminal trial occasioned by an interlocutory appeal, the potential for unremediable reputational damage from the trial proceeding is a matter that does not carry substantial weight compared to the relevant prejudice that arises from a delay in the trial.

48. Second, it was suggested that there was some inconsistency between the Crown agreeing to the vacation of the earlier trial date following the adjournment of Mr Obeid's application for leave to appeal from Obeid No 2 and the refusal of the Crown to agree to the vacation of the trial date at this point. Given the different stages of the judicial hierarchy that are involved and the difference between the test for leave to appeal compared with the test for special leave to appeal, there is no such inconsistency.

49. Third and lastly, it was contended that there may be other prosecutions pending in this Court that raise the same issues as are the subject of the special leave application. The Crown disputed this, and I am in no position to resolve that dispute. If there are such cases then the Court of Criminal Appeal's judgment governs the position.

Conclusion

50. When the true prejudice arising from the delay in the trial that is likely to arise if this application were granted is identified, it becomes clear that the interests of justice do not warrant acceding to it. When that is considered with the above assessment of the prospects of success of the application for special leave to appeal and with the fact that the points sought to be raised by Mr Obeid can be agitated in the event that he is convicted, the result is that the application must be dismissed.

Orders

51. Accordingly, the orders of the Court are:

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.

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Amendments

07 April 2016 - Sentence added to "Publication Restricted" field on cover sheet.

28 June 2016 - Restriction lifted.

Decision last updated: 11 February 2020