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9
Court of Criminal Appeal 8 December 2015

Obeid v R

[2015] NSWCCA 309

Also reported as (2015) 91 NSWLR 226
Fraud & dishonesty
COURTS JURISDICTION APPLICATION TO QUASH INDICTMENT CONSTITUTION ACT 1902 (NSW) SS 13A, 14A ELEMENTS OF OFFENCE R V QUACH [2010] VSCA 106

Citation: Obeid v R [2015] NSWCCA 309
Court: Court of Criminal Appeal, New South Wales
Date: 8 December 2015
Judge(s): Bathurst CJ; Beazley P; Leeming JA

Background

The appellant was a former member of the NSW Legislative Council. He was arraigned on an indictment charging him with one count of wilfully misconducting himself in a public office. The charge alleged that, between August and November 2007, he made representations to an officer of the Maritime Authority of NSW to secure a favourable outcome for a company in which he held an undisclosed commercial, beneficial, family, or personal interest.

After pleading not guilty, the appellant applied to have the indictment set aside, stayed, or quashed. The primary judge (Beech-Jones J) dismissed that application following two days of argument, and declined to certify the judgment as appropriate for appeal. The appellant then sought leave to appeal to the Court of Criminal Appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). The Crown did not oppose leave, and the appeal proceeded with expedition given the adjourned trial.

  • Whether the Supreme Court of NSW had jurisdiction to hear and determine the charge, or whether the matter fell within the exclusive jurisdiction of the Legislative Council
  • Whether a member of the Legislative Council is a "public officer" for the purposes of the common law offence of wilful misconduct in public office
  • Whether the indictment should be stayed because parliamentary privilege would prevent the alleged misconduct from being proved
  • Whether the indictment was defective in extending the charge to conduct "connected to" the appellant's office (rather than conduct performed strictly in the course of it)
  • Whether the primary judge erred in formulating the duty owed by a member of Parliament

Decision

Jurisdiction. The Court affirmed that a court's first duty is to determine whether it has jurisdiction, and that this question should not ordinarily be deferred. Members of Parliament are subject to the ordinary criminal jurisdiction of the courts, including the Supreme Court. The Court held that jurisdiction-conferring provisions should not be read down by implication or by imposing limitations not found in their express terms. The Supreme Court was not found to lack subject-matter jurisdiction over the charge.

Public officer. The Court held that a member of the NSW Legislative Council is a "public officer" to whom the common law offence of wilful misconduct in public office extends. The Court reached this conclusion by reference to established authority and to s 12 of the Constitution Act 1902 (NSW), which provides that members of the Legislative Council hold public offices.

Parliamentary privilege. The Court drew a distinction between a member's function of communicating with the Executive and its employees on the one hand, and communications that have the requisite nexus with proceedings in Parliament on the other. The Court found nothing in the indictment to suggest that the particular communications alleged had any connection to parliamentary proceedings. Parliamentary privilege, including Article 9 of the Bill of Rights 1689, therefore presented no bar to the prosecution.

"Connected to" office, and the duty question. The phrase "or connected to" in the indictment was consistent with the second element of the offence as formulated by the Victorian Court of Appeal in R v Quach [2010] VSCA 106. The Court declined to depart from that decision, noting that NSW intermediate appellate courts may only depart from a Victorian Court of Appeal decision if it is "plainly wrong," and the Court was not so convinced. The fifth element of the offence, requiring that the misconduct be of a sufficiently serious quality to merit criminal punishment, was found to confine the offence's scope appropriately. On the duty issue, the Court held that the primary judge had merely expressed a preliminary view, not a binding determination, and that the precise articulation of any duty could await the course of the trial.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Non-publication order made in respect of the judgment pending determination of the trial (subsequently discharged on 7 April 2016).
  • Question of whether non-publication orders should apply to the judgment and the primary judge's judgments remitted for consideration by the trial judge.

Key Takeaways

  • The Court of Criminal Appeal confirmed that members of NSW Parliament are subject to the ordinary criminal jurisdiction of the Supreme Court and are not shielded by any exclusive parliamentary jurisdiction in relation to criminal charges.
  • A member of the NSW Legislative Council constitutes a "public officer" for the purposes of the common law offence of wilful misconduct in public office, by virtue of both established common law authority and s 12 of the Constitution Act 1902 (NSW).
  • Parliamentary privilege does not automatically protect communications between a member of Parliament and Executive officers; the privilege attaches only where there is a genuine nexus with proceedings in Parliament.
  • Where the NSW Court of Criminal Appeal is asked to depart from a decision of the Victorian Court of Appeal on a common law matter, the threshold is that the prior decision must be "plainly wrong," following the High Court's approach in Farah Constructions v Say-Dee.
  • The serious-quality requirement embedded in the fifth element of the wilful misconduct offence, namely that the conduct be of a gravity warranting criminal punishment having regard to the nature and importance of the office, operates to limit the reach of the offence and was found by the Court to confine the charge appropriately in this context.

Legislation and Cases Referenced

Legislation
- Constitution Act 1902 (NSW), ss 12, 13A, 14A
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 17
- Bill of Rights 1689 (1 Will & Mar sess 2 c 2), art 9
- Supreme Court Act 1970 (NSW), s 23
- Australia Act 1986 (Cth), ss 1, 3
- Parliamentary Privileges Act 1987 (Cth), s 16
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 8

Key Cases
- R v Quach [2010] VSCA 106; 201 A Crim R 552
- R v Chaytor [2010] UKSC 52; [2011] 1 AC 684
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
- R v Bembridge (1783) 3 Dougl 327; 99 ER 679
- R v Boston (1923) 33 CLR 386
- Attorney General's Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73
- Arena v Nader (1997) 42 NSWLR 427
- Bass v Permanent Trustee Company Ltd [1999] HCA 9; 198 CLR 334
- Egan v Willis [1998] HCA 71; 195 CLR 424
- R v Dytham [1979] 1 QB 722