Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 5) [2019] NSWSC 1489
Court: Supreme Court of New South Wales
Date: 18 June 2019
Judge: Fullerton J
Background
Three accused faced charges of conspiracy to commit wilful misconduct in public office. The Crown alleged that a serving NSW Minister for Mineral Resources agreed with two other accused to provide confidential information concerning a coal exploration licence area known as Mount Penny, in exchange for improperly advancing that family's financial interests. The alleged misconduct occurred through a series of acts between May 2008 and January 2009.
The Crown sought to lead two categories of evidence at trial bearing on the Minister's motivation for participating in the alleged conspiracy. The first concerned a lunchtime meeting in February 2006 at which senior ALP figures discussed the Minister's parliamentary future, and an agreement reportedly reached that he would be preselected for one further term on the condition he retire before its expiry. The second concerned evidence from a former Premier about political factions within the ALP and the patronage one of the other accused had shown toward the Minister.
All accused objected to this evidence. The court was asked to rule on whether each category was relevant and admissible, and for what purposes and against whom.
Legal Issues
- Whether evidence of the Noble House Restaurant meeting on 20 February 2006 and the agreement reached there was relevant to facts in issue in the trial, particularly the Minister's motivation for participating in the alleged conspiracy.
- Whether that meeting evidence was admissible against all three accused as probative of the existence and nature of the conspiracy itself.
- Whether the Noble House evidence could be used to rebut any suggestion that the Minister had no reason to risk his political career.
- Whether evidence from the former Premier about ALP factions and the patronage shown toward the Minister by one accused was admissible opinion evidence, and whether it was relevant to motivation and to proving the conspiratorial relationship.
Decision
Issue 1: Admissibility of the Noble House meeting evidence against the Minister
Fullerton J admitted the Noble House evidence against the Minister on two related grounds of motivation. First, the jury could find that a person who knew his parliamentary career was drawing to a close might be more willing to misuse his ministerial position during that window, between May 2008 and January 2009 (at [10]). Second, the jury could find the Minister may have been motivated by hope of financial benefit from the sale of Cherrydale Park or from arrangements his alleged co-conspirators might make with the mining company exploiting the Mount Penny coal resource, at a time when he was facing ongoing financial pressures he had himself described at the lunch (at [11]).
Her Honour rejected the submission that the evidence was irrelevant because the agreement was ultimately not honoured. The fact of the agreement alone was sufficient to allow the jury to find that, after the lunch, the Minister apprehended his parliamentary career was limited, and that he might therefore have been willing to use the time available to him for the purposes the Crown particularised (at [13]). The counter-argument, that a minister facing greater consequences than mere career loss would be less rather than more likely to engage in misconduct, was characterised as a question of fact for the jury to resolve, not a basis for excluding the evidence (at [14]).
Issue 2: Admissibility of the Noble House evidence against all three accused
The court declined to admit the Noble House evidence as probative of the conspiracy against all accused. In the absence of any evidence that the other two accused were aware of the agreement about the Minister's limited parliamentary tenure, or any basis for inferring such awareness, the court could not see how the meeting evidence was relevantly probative of a conspiracy whose illegal agreement was initiated in September 2007 and fully executed by January 2009 (at [17]). A further ruling on any residual use of that evidence was deferred to await the conduct of the defence case at trial (at [18]).
Issue 3: Admissibility of the former Premier's faction and patronage evidence
The court admitted evidence from the former Premier as relevant to the Minister's motivation and to proving the conspiratorial relationship between the Minister and one accused. Her Honour rejected the objection that this evidence was inadmissible as opinion, finding it was grounded in the witness's direct experience and observation as a long-term ALP member and leader of the Parliamentary Labor Party, rather than in inference or speculation (at [25]). The submission that the evidence was "stretched, contrived and highly speculative" was also rejected: the existence of competing or alternative motivations does not neutralise the capacity of this evidence to support the Crown's case that the Minister was motivated, at least in part, by a desire to repay a debt of gratitude to the accused who had actively promoted his ministerial appointments (at [27]). Because whether the Minister did in fact wilfully misconduct himself is central to proof of the conspiracy itself, evidence of what motivated him is relevant not only against him but against all three accused (at [28]).
Orders Made
- The evidence is admissible against all three accused.
Key Takeaways
-
Evidence that an accused believed his parliamentary career was time-limited was held to be relevant to whether he might have been more willing to misuse his ministerial position during that finite period, even where the agreement giving rise to that belief was not ultimately honoured (at [13]-[14]).
-
The Supreme Court drew a clear distinction between the use of the Noble House meeting evidence against the Minister (admitted as probative of motivation) and its use against all accused as proof of the conspiracy itself: without evidence that the other accused knew of the career-limiting agreement, the broader use was not established (at [17]).
-
Factual evidence about political faction dynamics and observed patronage relationships, given by a witness from direct experience and observation, is not inadmissible merely because it involves an assessment of conduct or relationships (at [25]).
-
Competing explanations for a defendant's motivation do not, as a matter of law, render evidence of one particular motivation irrelevant or inadmissible; the weight to be given to such evidence remains a question for the jury (at [27]).
-
Where an act of misconduct is the central element of a conspiracy charge, evidence probative of the defendant's motivation to commit that act is also admissible against co-accused as relevant to whether the conspiracy itself existed (at [28]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated