AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
232
Court of Criminal Appeal 13 September 2017

Obeid v R

[2017] NSWCCA 221

Also reported as (2017) 96 NSWLR 155 (2017) 350 ALR 103
Fraud & dishonesty
CRIMINAL LAW APPEAL CONVICTION APPEAL SENTENCING COMMON LAW OFFENCE

Citation: Obeid v R [2017] NSWCCA 221
Court: NSW Court of Criminal Appeal
Date: 13 September 2017
Judges: Bathurst CJ, Leeming JA, R A Hulme J, Hamill J, N Adams J

Background

The appellant was a former member of the NSW Legislative Council who had been convicted by a jury of the common law offence of misconduct in public office. The conduct alleged was that he made representations to a public servant with the intention of securing an outcome that would produce pecuniary benefits for himself or members of his family.

Following conviction, the appellant challenged both the conviction and the sentence imposed by the trial judge. The appeal raised substantial questions about the scope of parliamentary privilege, the nature of the duty owed by members of parliament to the public, and several aspects of the jury directions given at trial.

The case was a five-judge bench, reflecting the constitutional significance of several of the issues raised.

The conviction appeal raised the following questions:

  • Whether the duty said to have been breached by the appellant was valid in law
  • Whether the charge fell within the exclusive cognisance of the NSW Parliament (meaning only Parliament, not the courts, could deal with it)
  • Whether the trial judge misdirected the jury on the "wilfulness" element of the offence
  • Whether the jury's finding on "wilfulness" was unreasonable or unsupported by evidence
  • Whether the trial judge misdirected the jury on the "seriousness" element
  • Whether a miscarriage of justice arose from the conduct of the appellant's legal representatives at trial

The sentence appeal raised these questions:

  • Whether Part 4A of the Crimes Act 1900 (NSW) was the correct statutory analogue for sentencing purposes
  • Whether the trial judge erred in finding the appellant was solely motivated by personal or family financial gain
  • Whether the trial judge improperly took into account that the jury had been satisfied the conduct merited criminal punishment
  • Whether the appellant was denied procedural fairness on a mitigating factor under s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether damage to the institutions of government constitutes "loss or damage" under s 21A
  • Whether the sentence was manifestly excessive

Decision

The duty and its formulation

The Court held unanimously that members of parliament are appointed to serve the people of the state, including their constituents, and that this gives rise to a duty of trust capable of founding the offence of misconduct in public office. The trial judge's direction, which described the duty in terms of acting in the public interest and not using parliamentary position to promote personal pecuniary interests, was not an impermissible "double duty." It simply reflected the positive and negative aspects of the one underlying obligation.

The jury was directed that it must be satisfied beyond reasonable doubt that the appellant's sole purpose was to advance his or his family's pecuniary interests. The Court found this formulation was, if anything, more favourable to the appellant than a direction requiring only that the improper purpose be a substantial or dominant one. No error was established.

Parliamentary privilege and exclusive cognisance

A central argument was that the charge fell within the exclusive cognisance of Parliament, meaning the courts should have declined jurisdiction or exercised a "self-denying" ordinance. The Court rejected this comprehensively. The indictment did not rely on or impeach any speech or proceeding within Parliament, and it made no allegations concerning the internal practices of the Legislative Council. Courts and Parliament may have concurrent jurisdiction over criminal conduct. The conduct at issue took place outside the chamber and was not protected by parliamentary privilege. The Court also noted that the NSW Legislative Council, unlike some other Australian chambers, has not been statutorily conferred the power to punish, and the power to punish a former member for conduct outside the chamber would be well beyond any implied power.

Wilfulness, seriousness, and the remaining conviction grounds

The Court found no error in the jury directions on "wilfulness." The jury was correctly directed that it had to be satisfied the conduct amounted to a breach of the duties and obligations of a member of parliament, and there was no requirement that the appellant knew his conduct was unlawful as a matter of law. The remaining conviction grounds, including the allegation of miscarriage of justice arising from the conduct of the appellant's legal representatives, were also dismissed.

The sentence appeal

The Court granted leave to appeal against sentence but dismissed the appeal on all grounds. No error was established in the trial judge's selection of Part 4A of the Crimes Act as the relevant sentencing analogue. The finding that the appellant was solely motivated by personal or family financial gain was open on the evidence. The trial judge did not err in taking the jury's verdict into account in the manner alleged, nor was procedural fairness denied. Although the sentence was described by several judges as heavy, given the appellant's age, ill-health, prior good character, and the public opprobrium he had suffered, no patent legal error was identified and the sentence was not found to be manifestly excessive or plainly unjust.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction dismissed.
  • Leave to appeal against sentence granted; appeal against sentence dismissed.

Key Takeaways

  • The common law offence of misconduct in public office extends to members of parliament who use their position to advance their own or their family's pecuniary interests, provided the elements of wilfulness and seriousness are established.
  • A charge against a parliamentarian does not engage exclusive cognisance, and courts are not required to decline jurisdiction, where the conduct alleged occurred outside the chamber and does not impeach any speech or parliamentary proceeding.
  • The NSW Legislative Council's lack of statutory power to punish its members is a significant factor against recognising any implied punitive power extending to a former member's conduct outside the chamber.
  • In dismissing the sentence appeal, the Court confirmed that damage to the institutions of government may constitute relevant harm for sentencing purposes under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), though the precise scope of this was not elaborated upon at length.
  • No error arises from directing a jury on a "sole purpose" standard for improper motive where that formulation is at least as favourable to the accused as any alternative formulation requiring only a substantial or dominant improper purpose.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), Part 4A, ss 249B, 307B
  • Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 3A, 44(2)
  • Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 5F
  • Parliamentary Privileges Act 1987 (Cth), ss 5, 7, 16
  • Constitution Act 1902 (NSW), s 14A
  • Australia Act 1986 (Cth), ss 1, 3
  • Bill of Rights 1689 (1 Will & Mar sess 2 c 2), art 9
  • Evidence Act 1995 (NSW), s 48
  • Independent Commission Against Corruption Act 1988 (NSW), s 9

Key Cases

  • Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
  • R v Chaytor [2011] 1 AC
  • R v Quach (2010) 27 VR 310; [2010] VSCA 106
  • R v Boulanger [2006] 2 SCR 49
  • R v Boston (1923) 33 CLR 386; [1923] HCA 59
  • Egan v Willis (1998) 195 CLR 24; [1998] HCA 1
  • McCloy v State of NSW (2015) 257 CLR 178; [2015] HCA 34
  • Prebble v Television New Zealand Ltd [1995] 1 AC 321
  • Canada (House of Commons) v Vaid [2005] 1 SCR 667
  • Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
  • Alford v Magee (1952) 85 CLR 437; [1952] HCA 3
  • Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285; [1987] HCA 11
  • House v The King (1936) 55 CL