Citation: R v Maitland (No 5) [2017] NSWSC 167
Court: Supreme Court of New South Wales
Date: 28 February 2017
Judge: Adamson J
Background
Two accused, Macdonald and Maitland, faced charges arising from the grant of an exploration licence for coal under the Mining Act 1992 (NSW). Macdonald, a former Minister for Mineral Resources, was alleged to have committed wilful misconduct in public office by granting consent to Doyles Creek Mining Pty Ltd (DCM) to apply for an exploration licence, and later by granting that licence outright. The prosecution alleged he was substantially motivated by a desire to benefit Maitland and DCM rather than the interests of New South Wales.
Maitland was charged as an accessory before the fact to both of Macdonald's alleged offences. The Crown case was that Maitland aided, abetted, counselled, and procured the commission of those offences in the periods leading up to each alleged act of misconduct.
At the close of the Crown case, Maitland's counsel made several applications seeking to have the prosecution terminated before the defence case was required to be put.
Legal Issues
- Whether a letter dated 21 August 2008, signed by Macdonald, was capable of constituting "consent" under s 13(4) of the Mining Act 1992 (NSW) as a matter of law, and if so, whether that question was one for the judge or the jury.
- Whether the evidence, taken at its highest, was sufficient to establish Maitland's knowledge of the mental element of Macdonald's alleged offences, so as to support a finding of accessorial liability.
- Whether a Prasad direction (a procedural step inviting the jury to return a verdict of not guilty without hearing the defence case) was appropriate in the circumstances.
Decision
First application: Directed verdict on the consent question
Adamson J analysed the relevant provisions of the Mining Act 1992, noting that s 13(4) prohibits an application for an exploration licence in a minerals allocation area without Ministerial consent, and that the entire state had been constituted a Mineral Allocation Area for coal. Critically, the Act imposes no formal requirements for the giving of that consent. The question of whether the 21 August 2008 letter was capable of amounting to consent under s 13(4) was identified as a question of law for the judge. However, whether that letter actually did constitute consent on the facts was a question of fact for the jury. Her Honour found the letter was capable, as a matter of law, of constituting consent, and declined to direct a verdict of acquittal on count 2.
Second application: Directed verdict on accessorial knowledge
For Maitland to be convicted as an accessory before the fact, the Crown needed to prove he knew of the mental element of Macdonald's alleged principal offence, specifically that Macdonald was substantially motivated by a desire to benefit Maitland and DCM rather than the public interest. Applying the principle from Doney v The Queen (1990), a directed verdict is only appropriate where there is no evidence capable of supporting a conviction. Adamson J found that, taking the evidence at its highest, it was sufficient to go to the jury on both counts. The second application was refused.
Third application: Prasad direction
A Prasad direction allows a trial judge to invite the jury to return a not guilty verdict at the close of the Crown case without hearing counsel's addresses or a summing-up, if the jury considers the Crown has not proved its case. Adamson J held this procedure was inappropriate in the present case. The evidence was complex, the Crown case was circumstantial, and the jury had not yet been taken through all the documentary evidence. Given those circumstances, any adequate explanation of the Crown's case to accompany the direction would negate the whole purpose of the procedure, as the Court of Criminal Appeal had warned in Seymour v R [2006].
Orders Made
• Refuse the applications for direct verdicts of acquittal
• Refuse the application for a Prasad direction
Key Takeaways
- Under s 13(4) of the Mining Act 1992 (NSW), no formal requirements govern the giving of Ministerial consent to apply for an exploration licence. Whether a document satisfies the consent requirement is, at its threshold, a question of law for the judge, but whether it actually constitutes consent on the facts is a question for the jury.
- A directed verdict of acquittal is only available where no evidence capable of supporting a conviction exists. Where evidence taken at its highest could support the required findings, the matter must proceed to the jury.
- Accessorial liability before the fact requires the Crown to prove the alleged accessory knew the mental element of the principal offender's alleged offence, not merely the external facts.
- A Prasad direction is inappropriate in complex, document-heavy cases where the jury has not yet been taken through the evidence. The Supreme Court here followed the warning in Seymour v R that the direction's utility depends on the jury being able to assess the Crown case without judicial assistance, which is unworkable in such circumstances.
- All three applications by Maitland's counsel were refused, and the trial proceeded to the defence case.
Legislation and Cases Referenced
Legislation
- Mining Act 1992 (NSW), ss 13, 14, 15, 16, 22, 368
- Interpretation Act 1987 (NSW), s 34
Cases
- Doney v The Queen (1990) 171 CLR 207
- Giorgianni v The Queen (1985) 156 CLR 473
- May v O'Sullivan (1955) 92 CLR 654
- Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
- Obeid v Australian Competition and Consumer Commission (2014) 226 FCR 471; [2014] FCAFC 155
- R v Prasad (1979) 23 SASR 161
- R v Dickson; R v Issakidis (No 10) [2014] NSWSC 1482
- Seymour v R [2006] NSWCCA 206