R v Obeid (No 9)

[2016] NSWSC 520

Supreme Court

New South Wales

Medium Neutral Citation:	R v Obeid (No 9) [2016] NSWSC 520
Hearing dates:	22 April 2016
Date of orders:	29 April 2016
Decision date:	29 April 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1)   The parties, ICAC and the State of New South Wales confer in relation to the orders necessary to give effect to this judgment; (2) Pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 this judgment not be published until further order.
Catchwords:	PUBLIC INTEREST IMMUNITY – Cabinet documents – Ministerial correspondence – Cabinet advice – criminal proceedings – wilful misconduct in public office – alleged corruption of government processes by Legislative Councillor – balancing exercise – access to some documents granted – some refused.
Legislation Cited:	- Court Suppression and Non-publication Orders Act 2010 (NSW) – s 10 - Evidence Act 2005 (NSW) – s 130, Division 1, 1A, 1C or 3 of Part 3.10
Cases Cited:	- Alister v The Queen (1984) 154 CLR 404 - Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453; 98 FCR 31 - The Commonwealth v Northern Land Council (1993) 176 CLR 604 - Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563 - Obeid v R [2015] NSWCCA 309 - R v Basha (1989) 39 A Crim R 337 - R v Obeid (No 2) [2015] NSWSC 1380 - R v Obeid (No 7) [2016] NSWSC 132 - R v Quach [2010] VSCA 106; 201 A Crim R 522 - Sankey v Whitlam [1978] HCA 43; 142 CLR 1 - State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60
Texts Cited:	J.D.Heydon, Cross on Evidence (LexisNexis Butterworths, 8th Australian ed, 2010
Category:	Procedural and other rulings
Parties:	Regina – Applicant Edward Moses Obeid – Respondent
Representation:	Counsel: S. Robertson – Independent Commission against Corruption T. Glover – Roads & Maritime Services and Sydney Harbour Foreshore Authority B. Hughes SC – Accused   Solicitors: Solicitor for Public Prosecutions – Crown Breene & Breene – Accused Crown Solicitor – State of New South Wales
File Number(s):	2015/053925
Publication restriction:	Restriction lifted.

Judgment

1. On 22 April 2016, the Court heard argument on an application made by the State of New South Wales (the “State”) that the accused, Edward Moses Obeid, be denied access to certain documents placed before the Cabinet of New South Wales in 2007 concerning the adoption of a proposed Commercial Lease Policy (“CLP”) applicable to property owned by the Maritime Authority of New South Wales. The State contended that access should be refused on the basis that the public interest in preventing their disclosure outweighs the public interest in access being granted.

2. For the reasons that follow, I uphold this claim in relation to some of the documents the subject of the application but reject it in respect of two documents which are briefly described below. In providing reasons for this conclusion, it is necessary to be circumspect in describing the content of any of the documents to avoid any inadvertent undermining of the interest that the State seeks to uphold. Further, given the discussion below of the evidence adduced at an aborted trial of Mr Obeid in February 2016, and that his retrial is due to commence on 6 June 2016, an interim non-publication order under s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) will be made preventing the publication of this judgment until further order. In the ordinary course, it is to be expected that the order will be lifted at the conclusion of Mr Obeid’s trial.

Background

3. 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. Thereafter, various interlocutory applications were heard and determined. On 10 February 2016, Mr Obeid was arraigned before a jury panel on an amended indictment that charged him with that offence.

4. On 24 February 2016, the jury were discharged prior to the closure of the Crown case: R v Obeid (No 7) [2016] NSWSC 132. The reasons for the discharge are immaterial to this application. A new trial date has been fixed for 6 June 2016.

5. After the jury were discharged, the solicitors for the accused sought access to material held by the Independent Commission Against Corruption (“ICAC”) that was the subject of a prosecution disclosure notice served by the New South Wales Director of Public Prosecutions during 2015. The notice listed all, or at least most, of the material retained by ICAC in respect of the inquiry that led to this prosecution. After some debate as to whether that material was required to be made available to the accused, he caused a subpoena to be issued to ICAC. When the subpoena was called upon, ICAC did not object to the production of any of the material sought. Instead, various emanations of the State have objected to the accused being granted access to some discrete parts of the material retained by ICAC on the basis that they are either the subject of legal professional privilege or are Cabinet documents such that the public interest warrants the refusal of access. The former claims either have been, or are in the process of being, resolved by negotiation. This judgment deals with the latter claims. In respect of both sets of claims it is not contended that there was any form of “waiver”, if that were possible, by the production per se of the material to ICAC for the purpose of its investigation.

The Crown and Defence cases

6. To determine whether the interests of justice warrant the granting of access to any of the documents, it is necessary to identify the matters in issue at the aborted trial. There is no reason to believe they will not be issues at the retrial.

7. The amended indictment presented against Mr Obeid states as follows:

“Between 1 August 2007 and 30 November 2007 in Sydney in the State of New South Wales, then holding public office as a Member of the Legislative Council of New South Wales, [he] did in the course of and connected to his public office wilfully misconduct himself by making representations to Stephen Paul Dunn, the Deputy Chief Executive Officer and General Manager, Maritime Property Division of the Maritime Authority of New South Wales, with the intention of securing an outcome from the said Maritime Authority favourable to Circular Quay Restaurants Pty Ltd in respect of its tenancies of properties at Circular Quay knowing at the time he made the representations that he had a commercial and/or beneficial and/or family and/or personal interest in the said tenancies which he did not disclose to Stephen Paul Dunn.”

8. A brief summary of the prosecution case is set out in R v Obeid (No 2) [2015] NSWSC 1380 at [15] to [22] (“Obeid No 2”) which should be read together with this judgment. As is clear from the amended indictment, the offence is alleged to have been committed between 1 August 2007 and 30 November 2007 and concerns Mr Obeid's alleged dealings with Mr Dunn, a senior employee of the Maritime Authority of New South Wales (“the Maritime Authority”) while Mr Obeid was a member of the Legislative Council of New South Wales.

9. Prior to the discharge of the jury at the aborted trial, the Crown Prosecutor adduced evidence from the former Chief Executive Officer of the Maritime Authority, Christopher Oxenbould. Mr Oxenbould described the evolution of a proposed CLP applicable to property owned by the Maritime Authority from early 2005 until its adoption by Cabinet in November 2007. In summary, the various iterations of the CLP from March 2005 until August 2007 allowed some limited scope for existing commercial lease holders to negotiate a renewal of their leases upon their expiry, but the general tenor of the policy was to require such leases be the subject of a market based tender or an expression of interest process in which existing leaseholders could only participate on the same basis as new entrants. Mr Oxenbould stated that Minister Tripodi, who assumed responsibility for the Maritime Authority from February 2006, [1] supported this approach, although he, Mr Oxenbould, preferred a policy that favoured direct negotiations upon the expiry of an existing lease. [2]

   1. Transcript 18/2/16 p.396.4

   2. Transcript 19/2/16 p.416.6

10. Mr Oxenbould stated that within the Maritime Property division of the Maritime Authority there was a strongly held view that the process of renewal for the Circular Quay leases, including the leases referred to in the amended indictment, was a special case compared with those addressed in the proposed CLP. In particular, this view was that irrespective of the terms of the CLP they should only be renewed by a process of competitive tender. [3] (The evidence does not suggest that this was conveyed to the Circular Quay lessees during the period 2005 to 2007.)

    3. Transcript 18/2/16 p.356, p.362.20, p367.19, p.368.30

11. Mr Oxenbould recalled that around mid-2007, the fate of the proposed CLP and the Circular Quay leases became linked. [4] He stated that in September 2007, a draft CLP favouring direct negotiations with existing lease holders was produced by the staff members responsible for progressing the CLP, namely Mr Low and Mr Dunn. [5] He said that this policy was approved by the Minister and then by Cabinet in late November 2007 with some immaterial revisions. The revised CLP was applied to the Circular Quay leases which led to the renewal of the leases at Circular Quay, including the tenancies referred to in the amended indictment.

    4. Transcript 19/2/16 at p.413.48

    5. Transcript 19/2/16 p.428.24, pp 436 to 437

12. Mr Low also gave evidence at the aborted trial. He stated that he joined the Maritime Authority as General Manager of Ports in November 2006 [6] . He assumed responsibility for progressing the CLP. He recalled that in “[early] conversations the Minister was [in] favour of open tenders” [7] . He stated that at the direction of Mr Dunn a new draft of the policy was prepared which favoured direct negotiations over lease renewals rather than open tenders. [8] He recounted a conversation with Minister Tripodi in relation to a new iteration of the CLP which favoured direct negotiations as follows: [9]

“… I raised [the revised policy] with the Chief Executive and also with the Minister and in relation to the Minister I called his office and he rang me back personally some time later and I ran through the changes to the policy, one of which was retail leases. He didn't make any particular comment about that the change to section 4.5 about retail leases …”

6. Transcript 22/2/16 p.517.5

7. Transcript 22/1/16 at p. 539.29

8. Transcript 22/2/16 p 539.38

9. Transcript 22/2/16 p.539.43

13. At the time the jury were discharged the Crown Prosecutor was yet to call Mr Tripodi. Mr Dunn had not given evidence before the jury but he had given evidence on a “Basha inquiry” in their absence (R v Basha (1989) 39 A Crim R 337). In that inquiry Mr Dunn stated that he was appointed as Deputy Chief Executive Officer of the Maritime Authority on 15 August 2007 and then General Manager, Maritime Property Division approximately one week later. [10] He reported to Mr Oxenbould, [11] and assumed responsibility for finalising the CLP. [12] Mr Dunn had previously been Director of Fisheries between 1999 and 2004. For some period during that time Mr Obeid was the Minister for Fisheries. Since that time Mr Dunn had met with Mr Obeid occasionally. [13]

    10. Transcript 17/2/16 p.305.50

    11. Transcript 17/2/16 p.295.50

    12. Transcript 17/2/16 p.296.7

    13. Transcript 17/2/16 p.306

14. Mr Dunn stated that, either immediately before or shortly after he commenced working for the Maritime Authority, he received a call from Mr Obeid [14] . He said that Mr Obeid asked him to meet with a barrister, Paul Scanlan, who was the representative of the Circular Quay tenants who they felt they had been mistreated by the Maritime Authority. [15] Mr Dunn agreed that in the call Mr Obeid “did no more than or less than request [him] to meet with Mr Scanlan to hear their grievances” [16] . Mr Dunn and Mr Low then met with Mr Scanlan on 28 August 2007. He advised the then Minister, Mr Tripodi, that he had been contacted by Mr Obeid and asked to meet Mr Scanlan. Mr Dunn said that after he met Mr Scanlan he investigated the various matters that Mr Scanlan put to him on behalf of the Circular Quay lessees. [17] He said that he was not advised by Mr Obeid or anyone else that Mr Obeid or any member of his family had an interest in the leases “other than a belief by some of the Maritime staff that [one of the tenants] Mr Abood was name dropping Mr Obeid during conversations”, although he did not know that Mr Abood was related to Mr Obeid. [18] He stated that, if Mr Obeid’s interest had been disclosed, then he would have advised Mr Oxenbould and the Minister of the existence of a conflict of interest on Mr Obeid's part and referred to it in the material placed before Cabinet. [19]

    14. Transcript 17/2/16 p.308.19

    15. Transcript 17/2/16 p.296.46

    16. Transcript 17/2/16 p.297.3

    17. Transcript 17/2/16 p.301

    18. Transcript 17/2/16 p.310.13

    19. Transcript 17/2/16 p.311

15. Mr Dunn was not pressed during the Basha inquiry on the reasons why he proposed a change to the CLP or reversed the approach that had previously been adopted with the Circular Quay lessees, except that he agreed that his “conclusion that there was substance based in what Mr Scanlan had represented to [him] was reached by virtue of [his] investigation and uninfluenced by Eddie Obeid’s request that [he] meet him” [20] .

    20. Transcript 17/2/16 p.302.9

16. The elements of the offence of wilful misconduct in public office were enunciated in R v Quach [2010] VSCA 106; 201 A Crim R 522 at [46] per Redlich JA (Ashley JA and Hansen AJA agreeing) as follows:

“… the elements of the offence are:

(1)   a public official;

(2)   in the course of or connected to his public office;

(3)   wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;

(4)   without reasonable excuse or justification; and

(5)   where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.”

17. The aborted trial was conducted on the basis that with respect to element (1) the jury would be instructed that, as a matter of law, a Member of the Legislative Council is a public official (see Obeid v R [2015] NSWCCA 309 at [119] to 123]). Elements (2), (3) and (5) were said to be in issue. At the time trial was aborted no submission had been made as to whether there was evidence that might amount to a reasonable excuse or justification for Mr Obeid's intervention, so for the present element (4) can be put aside.

18. At the very least it was apparent from Senior Counsel for Mr Obeid's opening and his questioning of the witnesses noted above that it was to be contended on Mr Obeid's behalf that, even if Mr Obeid's communication with Mr Dunn was unwise or perhaps “improper” because of his interest in the leases, it was nevertheless a minor transgression and had no consequential effect on either the progress of the CLP or the negotiations between the Maritime Authority and the lessees. Accordingly, I apprehend that at the retrial it will be contended that Mr Obeid's intervention in the negotiations was so minor in nature and effect that it neither amounted to misconduct (much less wilful misconduct) to satisfy element (3) but, even if it did, it did not merit criminal punishment so as to satisfy element (5).

The documents the subject of the claim

19. The documents that were originally the subject of the claim for public interest immunity were set out in exhibit PM-1 to the affidavit of Paul Miller affirmed 19 April 2016. Only Tabs 1 and 5 of exhibit PM-1 were tendered as the accused’s application for access to the balance of PM-1 was not pressed. The documents behind Tab 1 related to a Cabinet proposal to adopt a commercial leasing policy in the period December 2005 to March 2006, which did not eventuate. The documents behind Tab 5 related to the Cabinet’s adoption of the (revised) CLP on 26 November 2007. Of these documents, the claim for public interest immunity was not pressed in relation to the bulk of them, including the relevant Cabinet minutes, much of the Cabinet correspondence and advice and, in the case of Tab 5, the record of Cabinet’s decision. This position was taken because either the contents of this material were ventilated during an ICAC inquiry or the documents have been provided to the accused as part of the process of prosecutorial disclosure.

20. In the end result, the documents the subject of this application were reduced to the following. First, there are eight items of Cabinet correspondence in the period December 2005 to March 2006 relating to a proposal that Cabinet adopt a commercial leasing policy. [21] None of the authors of that correspondence are Crown witnesses. One of the authors gave evidence at the relevant ICAC inquiry.

    21. Pages 27 to 31 and 33 to 37 behind Tab 1 to exhibit PM-1; see transcript 22/04/16 at p.6.22 to .26

21. Second, there are six items of Cabinet correspondence relating to the Cabinet’s adoption of the commercial leasing policy on 26 November 2007. [22] The author of one item of correspondence is a Crown witness, namely, Mr Tripodi. The author of one of the other items of correspondence was a witness before ICAC, but is not a Crown witness. [23]

    22. Pages 168, 172 to 173 and 178 to 183 behind Tab 5 to exhibit PM-1; see transcript 22/04/16 at p.9.34 to .37

    23. Page 173

22. Third, there is a memorandum constituting advice from within the Department of Premier and Cabinet concerning the proposal. [24]

    24. Pages 169 to 170 behind Tab 5 to exhibit PM-1.

23. Mr Miller is the General Counsel of the Department of Premier and Cabinet. As part of his duties he has drafted Cabinet minutes, Cabinet submissions and records of Cabinet decisions. He has attended meetings as Secretary to the Cabinet in the absence of the Cabinet Secretary. In his affidavit he describes the process of Cabinet decision making including that of Cabinet subcommittees. He also describes the necessity for secrecy and confidentiality of the proceedings of Cabinet in a manner consistent with that discussed in the authorities. Mr Miller emphasised that such confidentiality promotes “an environment in which Ministers are free to provide to Cabinet all the information relevant to an issue on a frank and candid basis” (at [25]).

24. Mr Miller also describes the various categories of documents included in exhibit PM-1, specifically “Cabinet minutes” being in effect a proposal for Cabinet, Ministerial Advice and Correspondence, “Cabinet advices” being advices prepared by the Department of Premier and Cabinet, Treasury advice to the Budget committee, records of Cabinet decisions and instructions to Parliamentary Counsel. It follows from [20] to [22] that only two of these categories are relevant, namely, Ministerial Advice and Correspondence and Cabinet Advices, although, as noted, some Cabinet minutes and records of Cabinet decisions concerning the CLP were either tendered at the ICAC inquiry or have been made available to the Accused.

25. In relation to Ministerial Advice and Correspondence, Mr Miller stated that correspondence from Ministers to the Premier containing the views of individual Ministers on policies proposed in Cabinet minutes are made available to all Cabinet members and “treated the same way as a Cabinet submission” (at [40]). He stated:

“[42]   Those preparing Cabinet Minutes or other advice for Ministers or Cabinet are often reliant on obtaining advice and information other persons within government and, on occasion, outside of government on issues to be discussed in the Cabinet Minutes. If those people preparing the advice for Cabinet are unable to obtain such advice and information without fear that such advice and views could be publicly disclosed then they may not seek such advice at all or if they do obtain such advice they may seek it in more limited terms. Further, those providing their advice or views may feel inhibited in the information they place in the document and affect the way in which other information is presented. This in turn will significantly detract from the quality of the advice being provided to Cabinet which in turn will detrimentally impact on the quality of the decision making ability of Cabinet.

[43]   In summary, it is vital to the development of public policy and the good administration of the affairs of the State that:

a.   Ministers in Cabinet are able to have a free and candid discussion on issues that come before it for determination;

b.   Ministers and Cabinet are able to obtain full and frank advice from government officers and external experts on issues that come before a Cabinet for determination;

c.   Those advising the Ministers and Cabinet are able to obtain full and frank advice and views of other government officers and external experts on matters in respect of which they are providing advice to a Cabinet.

[44]   The threat of disclosure of documents that contain information about any of the above matters will adversely affect the proceedings of Cabinet and the quality of the advice given to Cabinet and will therefore inhibit Cabinet’s decision-making process. Such disclosure would tend to mute and impede the advice given to Cabinet and mute and impede the discussions and deliberations of Cabinet on future matters, including unrelated matters, because Ministers and those preparing advice for Cabinet could no longer be confident that their confidentiality would be respected and upheld by the courts.”

26. In relation to Cabinet advices Mr Miller stated:

“[46]   These advices are not merely briefing notes but rather they comprise the primary way in which the Department of Premier and Cabinet provides advice to the Premier in respect of Cabinet Minutes placed by Minister before Cabinet. The documents analyse proposals being put by a Minister to Cabinet and note current policy issues relevant to the proposals being put. These advices also make recommendations to the Premier as to the position that he or she should take in respect of those proposals. The disclosure of such advice would undermine the collective responsibility of Ministers by disclosing the proposals and views put by the Premier to Cabinet or the relevant committee as well as possibly disclosing that Ministers took different views on an issue. Further, if such briefings were liable to be disclosed it would be very difficult for public servants to provide the necessary advice in a concise, rigorous and uninhibited manner.

[47]   The disclosure of such documents would undermine collective responsibility and breach the confidentiality of Cabinet’s process in the same way as would the disclosure of documents that directly reveal the content of deliberations of Cabinet. The risk of disclosure of such documents would also mean that Ministers and the Cabinet may not seek such advice or if they do then the risk of disclosure may reduce the quality and extent of that advice.”

27. In Sankey v Whitlam [1978] HCA 43; 142 CLR 1 (“Sankey”) both Gibbs ACJ (at pp 45 and 46) and Stephen J (at pp 59 to 60) referred to the deference that should be afforded to the reasons advanced by a suitably qualified deponent for preserving the secrecy of Cabinet documents, although their opinion is not determinative. Accordingly I attach significant weight to the views expressed by Mr Miller in the above extracts and the balance of his affidavit. However, as Mr Miller acknowledges in his affidavit, he “is not in a position to depose to the public interest in the disclosure of the documents in these proceedings” which turns upon an assessment of their significance or potential significance to the prosecution of the accused.

Cabinet documents and Public Interest Immunity

28. It was common ground on this application that the determination of the State’s objection to access was to be made in accordance with the common law, and not s 130 of the Evidence Act 2005 (NSW) which concerns the exclusion of evidence of matters of State. Section 131A of the Evidence Act operates to extend various provisions found within Divisions 1, 1A, 1C and 3 of Part 3.10 of the Evidence Act, including s 130, to most pre-trial applications for disclosure of documents. However it does not operate in the circumstance where the person objecting to the provision of the documents, which in this case is the State, is not the person required to produce the documents, which in this case is ICAC: State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 (“PTTC”) at [32].

29. At common law, the approach to be adopted to the determination of a claim for public interest immunity was stated in The Commonwealth v Northern Land Council (1993) 176 CLR 604 (“NLC”) at 616 namely:

“The claim for public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence.”

30. Further in relation to a so-called “class claim”, the Court in NLC added (at 617):

“In a case where a document fell into a class of document the disclosure of which would be injurious to the public interest regardless of the contents, a court could conclude that ‘disclosure would not really be detrimental to the public interest’ [as stated by Gibbs ACJ in Sankey at 43] only in circumstances where there was a competing public interest, such as the public interest in the advancement of justice, which outweighed the public interest in the preservation of confidentiality.”

31. As stated, the claim for public interest immunity rests upon the status of the documents as Cabinet documents “regardless of [their] contents”. Each of NLC, Sankey and PTTC concerned Cabinet documents. In PTTC at [45]ff, Allsop P distilled a number of principles from Sankey and NLC concerning a public interest immunity claim in respect of such documents as follows:

“45. A number of propositions can be taken from their Honours' reasons to guide consideration of this issue. It is in the public interest that deliberations of Cabinet, including the decisions made by Cabinet, should remain confidential in support of the collective responsibility of Cabinet government: NLC at 615. It is the position of the body as responsible for the creation of state policy at the highest level that engenders the need for protection: NLC at 615. Thus, an important consideration is the protection of deliberations leading to the formulation of state policy, though this proposition should not be taken as meaning that only formulation of policy is to be protected. The threat of disclosure may impede or mute free and vigorous exchange in Cabinet: NLC at 615. Decision-making and policy development by Cabinet is to be uninhibited: NLC at 616. The division of claims into ‘class’ and ‘contents’ claims is rough, but acceptable, to differentiate types of documents the disclosure of which would injure the public interest, irrespective of contents, and those which ought not to be disclosed because of their contents: NLC at 616. Documents revealing Cabinet deliberations and decisions fall within the former class. But their immunity is not absolute: NLC at 616. The immunity must be weighed against the public interest in the administration of justice: NLC at 616. …

…

48. Their Honours [in NLC] then went on to say at 617 that the currency or controversiality of the subject matter is relevant to the balancing process. The character of the subject matter is, implicitly, also important. Their Honours had already spoken of policy and its formulation through the deliberations of Cabinet. Their Honours then emphasised that immunity of documents of Cabinet deliberations and Cabinet documents (ordinarily attracted irrespective of contents) is not absolute: NLC at 617-618. A court will initially lean against disclosure: NLC at 618. Whether circumstances are sufficient to displace the immunity depends in part on the nature of the class. As to this the majority [NLC] said at 618:

‘In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. The process of determining whether an order for disclosure of documents in that class should be made remains one of weighing the public interest in the maintenance of confidentiality against the public interest in the due administration of justice, but the degree of protection against disclosure which is called for by the nature of that class will dictate the paramountcy of the claim for immunity in all but quite exceptional situations.

Indeed, for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. In criminal proceedings the position may be different.’ (emphasis added)

…

50. Cabinet documents in the form of documents recording the matters put to Cabinet for discussion (such as minutes for the consideration of Cabinet) have been held to be in the same position as records of the deliberations or decisions of Cabinet: Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453; 98 FCR 31 at 42-43 [42]-[45]; Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563 at 573 [69] and J.D.Heydon, Cross on Evidence (LexisNexis Butterworths, 8th Australian ed, 2010) at p 961 [27065]. Thus, broadly, records of Cabinet deliberations and decisions and documents revealing the deliberations of Cabinet will be regarded as attracting the protection conferred by public interest immunity or by that afforded to matters of State, subject to the balancing of the competing interests. The public interest in preserving the secrecy of such documents will ordinarily be given considerable weight in the balancing process.

…

52. Conformably with the weighing or balancing process discussed in NLC and inhering within s 130 [of the Evidence Act], relevant considerations to take into account are whether the documents concern policy, the currency and contemporaneous controversiality of the subject matter, the character of the subject matter otherwise, for instance whether national security or high policy and the forensic relevance of the documents: see the Full Court in Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38; North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 at [16] (Wilcox J); Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [34] (Jagot J); and RP Data v Western Australian Land Information Authority [2010] FCA 922; 188 FCR 378 at [23] (Barker J)”

32. The documents the subject of this application do not record the “actual deliberations” of Cabinet such that the statement in NLC at p. 618 that “exceptional circumstances” would need to be demonstrated before access is granted is not apposite. However, communications between Ministers concerning Cabinet proposals and advice to the Cabinet nevertheless attract the protection of public interest immunity (Sankey at p 99 per Mason J). Further, the documents the subject of this application concern the formation of policy which is a factor weighing against disclosure, however their subject matter, namely the leasing policy of the Maritime Authority, is neither controversial nor contemporaneous. The outcome of Cabinet’s deliberations has been known for many years and, while it was not the subject of much evidence, the formation of the CLP was at least touched upon during an ICAC inquiry. Overall, and bearing in mind Mr Miller’s evidence, I accept that there is a public interest that weighs against the disclosure of the documents noted in [20] to [22], but that finding is based solely on their status as either communications between Ministers about a Cabinet proposal or advice to the Cabinet and not upon any particular aspect of the CLP or the content of the communications.

33. Against this must be weighed the competing public interest in the administration of justice. Each of NLC and PTTC concerned applications for the disclosure of documents for use in civil proceedings. NLC concerned proceedings to set aside an agreement between a Land Council and the Commonwealth Government on the grounds of unconscionability. PTTC concerned commercial litigation between a state owned corporation and a private company. However these are criminal proceedings, the subject matter of the charge is maladministration of political office which is said to be connected to a Cabinet decision, a number of related documents that would ordinarily be the subject of a public interest immunity claim on the same basis are either part of the Crown case or have been disclosed to the accused and the documents are sought by the accused to aid in his defence. At a level of generality above a consideration of the contents of particular documents, these factors weigh significantly in favour of disclosure.

34. In Sankey at p 42, Gibbs ACJ rejected the proposition that State papers were “absolutely protected from production” instancing a potential “great injustice … in cases in which the documents were necessary to support the defence of an accused person” (see also Alister v The Queen (1983) 154 CLR 403 at 414 per Gibbs CJ, and p 456 per Brennan J). In Sankey, Cabinet documents were sought to aid a private prosecution of a former Prime Minister and senior Ministers on conspiracy charges alleged to have arisen out of their conduct while in office. According to Stephen J, in such a case a number of “particular considerations” arose from the “unusual character” of the proceedings (at p 56) which his Honour described as follows:

“The character of the proceedings has a triple significance. First, it makes it very likely that, for the prosecution to be successful, its evidence must include documents of a class hitherto regarded as undoubtedly the subject of Crown privilege. But, then, to accord privilege to such documents as a matter of course is to come close to conferring immunity from conviction upon those who may occupy or may have occupied high offices of State if proceeded against in relation to their conduct in those offices. Those in whom resides the power ultimately to decide whether or not to claim privilege will in fact be exercising a far more potent power: by a decision to claim privilege dismissal of the charge will be well-nigh ensured. Secondly, and assuming for the moment that there should prove to be any substance in the present charges, their character must raise doubts about the reasons customarily given as justifying a claim to Crown privilege for classes of documents, being the reasons in fact relied upon in this case. Those reasons, the need to safeguard the proper functioning of the executive arm of government and of the public service, seem curiously inappropriate when to uphold the claim is to prevent successful prosecution of the charges: inappropriate because what is charged is itself the grossly improper functioning of that very arm of government and of the public service which assists it. Thirdly, the high offices which were occupied by those charged and the nature of the conspiracies sought to be attributed to them in those offices must make it a matter of more than usual public interest that in the disposition of the charges the course of justice be in no way unnecessarily impeded. For such charges to have remained pending and unresolved for as long as they have is bad enough; if they are now to be met with a claim to Crown privilege, invoked for the protection of the proper functioning of the executive government, some high degree of public interest in non-disclosure should be shown before his privilege should be accorded.”

35. The emphasis in this passage on ensuring that persons who occupy high office are answerable for crimes they may have committed reflects the fact that Sankey concerned an attempt to access Cabinet documents to aid in a prosecution. As noted, the present case concerns an application by the accused to obtain documents for the purposes of their defence. However, at the very least, no more restrictive approach is warranted in such cases where the accused seeks access as opposed to the prosecution. Moreover, the above passage highlights what may be implicit in the balancing test that must be applied in such cases, namely, that where the very subject matter of criminal proceedings is the alleged corruption of the processes of government, especially at a Cabinet level, a claim for public interest immunity over documents pertaining to that process is that much harder to maintain.

Submissions

36. The written and oral submissions made on behalf of the State comprehensively addressed the case law concerning claims for public interest immunity over Cabinet documents and the factors warranting access being denied in this case, which in turn reflected the matters raised by Mr Miller. I have in large part accepted its analysis and placed significant weight on Mr Miller’s affidavit although, as I have stated, care needs to be taken in weighing up the competing interests in a case where the subject matter of the prosecution is the alleged corruption of government processes.

37. Further, while the State was armed with full knowledge of the contents and effect of the documents which enabled it to make detailed submissions in support of matters warranting a denial of access, understandably it lacked familiarity with the aborted trial and the accused’s case, which hampered its ability to address the public interest in favour of granting access. In its written submissions, the Crown focused on the terms of the amended indictment and the Amended Crown Case Statement (see Obeid No 2 at [10]) which refer to Mr Obeid’s interactions with Mr Dunn and Mr Dunn’s interactions with Mr Scanlan. The State submitted, inter alia, that none of the documents in respect of which access was sought refer to the accused, Mr Dunn or Mr Scanlan, or any meeting they attended. Accordingly, the State submitted that the public interest in the disclosure of the documents was low.

38. The difficulty with this submission is that it overlooks element (5) of the offence of wilful misconduct in public office, which requires proof beyond reasonable doubt that the accused’s misconduct was serious and merited criminal punishment. The submission also overlooked Mr Oxenbould’s evidence that at some point the fate of the Circular Quay leases became bound up with the fate of the CPL. The former requires a normative assessment and it cannot be said that the boundaries of that assessment exclude a consideration of the causative impact of the alleged misconduct on the renewal of the Circular Quay leases (Obeid No 2 at [120]). The latter warrants some inquiry into the Cabinet process that led to the adoption of the CPL.

39. The accused’s submissions suffered from the opposite limitation to the State’s in that he is completely familiar with the issues in the trial but, understandably, was unable to address the contents of the documents the subject of this application. His submissions noted that the Crown brief served on him included confidential Cabinet minutes, some Cabinet correspondence and Cabinet advice, and records of Cabinet decisions. He contended that the documents that are sought “are in the highest category of relevance to the real issues in dispute in the proceedings”, especially when the Crown proposes to call the former Minister who took the CLP to Cabinet, Mr Tripodi. He contended that the circumstances in which the CLP was developed, amended, submitted to the Minister, submitted to Cabinet and approved by Cabinet are relevant to a jury’s determination of each of the third to fifth elements of the offence set out in [16] above. Thus he submitted that, given the serious nature of the charge, the necessity to ensure a fair trial requires that he be granted access to the documents in question.

36. It follows from the above that I accept the force of much that is submitted on behalf of the accused. However three matters should be noted. First, the documents the subject of this application do not concern the circumstances in which the CLP was developed, amended and submitted to the responsible Minister, but only the circumstances in which it was submitted to and approved by Cabinet. Second, as stated, at present I do not see that the fourth element of the offence of wilful misconduct in public office has any role to play. To date there has not been any attempt to identify any reasonable excuse or justification for Mr Obeid’s conduct. Third, I do not accept that every aspect of the development of the CLP is of significance to the prosecution case. Instead, what is significant is those aspects of the CLP that relate to the renewal of the Circular Quay leases without an open tender or a market-based expression of interest process.

Outcome

41. Both parties stated that they were content for the Court to inspect the documents for the purpose of weighing up the competing interests. In Alister, Gibbs CJ stated that, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, “the Court must attach special weight to the fact that the documents may support the defence” and that, while a so-called “fishing expedition” would not be permitted, it “may be enough that it appears ‘on the cards’ that the documents will materially assist the defence” (at p 414). In this case, given the anticipated issues on retrial and that the subject of the documents is related to the very process of government that the accused is alleged to have corrupted, I was satisfied that inspection by the Court was appropriate. Having inspected the documents, I will address each in turn.

Pages 27 to 31 and 33 to 37 of PM-1

42. This material consists of correspondence from Ministers to the Premier in the period January to March 2006. None of the authors of the letters nor its recipient are Crown witnesses. The letters do not refer to the accused or any Crown witness. They do not address any aspect of the CLP or any other government policy which has any relevance to the circumstances pertaining to the Circular Quay leases. The correspondence is of little utility, if any, to the defence case. The interests of justice do not outweigh the public interest in the maintenance of the secrecy of these documents. Access to these documents will be refused.

Pages 168, 172, 173 and 181 to 183 of PM-1

43. This material consists of correspondence from Ministers to the Premier in the period November 2007 to February 2008. None of the authors of the letters nor its recipient are Crown witnesses. The letters do not refer to the accused or any Crown witness other than the basal fact that one of them is a Minister. They do not address any aspect of the CLP or any other government policy which has any relevance to the circumstances pertaining to the Circular Quay leases. The correspondence is of little utility, if any, to the defence case. The interests of justice do not outweigh the public interest in the maintenance of the secrecy of these documents. Access to these documents will be refused.

Pages 169 to 170 of PM-1

44. This is a memorandum of advice dated 15 November 2007 from the Department of Premier and Cabinet concerning the CLP. The contents of the memo directly concern the abrupt change in the approach to lease renewals in the CLP that occurred in September 2007 (see [11]). The subject matter of the memorandum is of real significance to the issues in the prosecution. While it is doubtful that the accused would consider deploying it, in his case the public interest warrants his having access to it so that he might exercise care in questioning Crown witnesses including Mr Tripodi. The interests of justice and, in particular, the interest in the accused having access to this document outweighs the public interest in maintaining its secrecy. Access to this document will be granted.

Pages 178 to 180 of PM-1

45. This is a letter dated 21 November 2007 from the then Minister Tripodi to the Premier. It addresses a particular consideration that weighs in favour of the adoption of the CLP. It could assist in any cross examination designed to show that Minister Tripodi’s apparent acceptance of the revised CLP was based on its merits and was completely unrelated to the accused’s intervention in the process for the renewal of the Circular Quay leases. The interests of justice and, in particular, the public interest in the accused having access to this document outweighs the public interest in maintaining its secrecy. Access to this document will be granted.

Proposed Orders

46. At the hearing of this application, the parties, ICAC and the State requested the opportunity to be heard in relation to the appropriate orders necessary to give effect to the Court’s judgment. In any event, a delay between judgment and the entry of orders is appropriate. In Sankey, at p 43, Gibbs ACJ stated that no order for production of documents should be enforced “until the government concerned has had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so”.

47. Accordingly at this point I will simply indicate the orders I propose to make, but not make them, namely:

1. Decline to grant the Director of Public Prosecutions or the Accused access to the documents listed in schedule 1.

2. The documents listed in schedule 1 and the documents located behind Tabs 2 to 4 and 6 to 10 of exhibit PM-1 to the affidavit of Paul Miller affirmed 19 April 2016 be returned to the Independent Commission Against Corruption.

3. The Accused and the Director of Public Prosecutions be granted access to the documents listed in Schedule 2.

48. Instead, at this point, I will make the following orders:

1. The parties, ICAC and the State of New South Wales confer in relation to the orders necessary to give effect to this judgment.

2. Pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 this judgment not be published until further order.

Schedule 1

Pages 27 to 31, 33 to 37, 168, 172, 173 and 181 to 183 of Exhibit PM-1 to the affidavit of Paul Miller affirmed 19 April 2016.

Schedule 2

Pages 169 to 170 and 178 to 180 of Exhibit PM-1 to the affidavit of Paul Miller affirmed 19 April 2016.

Endnotes

Decision last updated: 11 February 2020