Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 1) [2019] NSWSC 322
Court: Supreme Court of New South Wales
Date: 18 June 2019
Judge(s): Fullerton J
Background
Three accused faced trial on a charge of conspiracy to commit wilful misconduct in public office. The Crown alleged that a former Minister for Mineral Resources agreed to misuse his ministerial position to benefit members of a prominent family and their associates, specifically in relation to the grant of a coal exploration licence over an area known as Mount Penny. The alleged benefit included increasing the value of rural properties owned by family-associated entities within that coal release area, and securing a share in the profits of any future mining venture.
The Crown accepted that the object of the conspiracy had been fully executed by 31 January 2009. However, it sought to adduce a substantial body of evidence of commercial transactions and dealings extending well beyond that date, particularly up to May 2012, including the family members' negotiations with two mining companies, Monaro Mining NL and Cascade Coal Pty Ltd, and the eventual termination of a joint venture in 2010 that generated approximately $30 million.
Each of the accused mounted what was described as a "global objection" to this post-conspiracy evidence, contending that it was irrelevant, or alternatively that any probative value was outweighed by the risk of unfair prejudice and should be excluded under sections 135 or 137 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether evidence of events and commercial transactions occurring after the conspiracy had been fully executed (after 31 January 2009) was relevant and admissible against any or all of the accused.
- Whether a sufficient nexus existed between the post-conspiracy conduct of Moses Obeid (particularly his dealings with Cascade Coal) and the existence or scope of the charged conspiracy.
- Whether the post-conspiracy evidence should be discretionarily excluded under sections 135 or 137 of the Evidence Act on the grounds that its probative value was outweighed by the danger of unfair prejudice, undue waste of time, or that it would be misleading or confusing.
- Whether the EOI process should be characterised as two separate processes ("First (Limited) EOI Process" and "Second (Extended) EOI Process"), and whether that characterisation limited the Crown's evidence.
Decision
Issue 1: Admissibility of pre-conspiracy and concurrent conspiracy evidence
The court confirmed that a considerable body of documentary and witness evidence was admissible to prove the existence of the conspiracy, its scope, and the participation of each accused. This was so either by operation of the co-conspirators rule or under section 87(1)(c) of the Evidence Act, which provides for the admission of statements made with implied authority in furtherance of a common purpose (at [1]). This point was not in dispute.
Issue 2: Relevance and admissibility of post-31 January 2009 evidence
The court rejected the argument that the Crown should be confined to evidence of events within the timeframe during which the conspiracy was current. It held that evidence of Moses Obeid's conduct after 31 January 2009, including his dealings with Monaro Mining and Cascade Coal, was not tendered under the co-conspirators rule or section 87(1)(c). Rather, it was tendered for non-hearsay purposes as circumstantial evidence probative of the existence and scope of the conspiracy, and of the financial motives of Moses Obeid and Edward Obeid in participating in it (at [17]). The court found that the inferences the Crown sought to draw, connecting the pre-conspiracy information flows to Moses Obeid's post-conspiracy entrepreneurial conduct, were available to the jury (at [62]).
Issue 3: The EOI process characterisation
The court declined to accept the accused's characterisation of the expression of interest process as bifurcated into two hermetically separate processes. The reopened process was treated as an extension of the same EOI process with a broader cohort of tenderers. Monaro Mining's continued participation in that process until June 2009 alone undermined the foundation of the global objection (at [38]).
Issue 4: Discretionary exclusion under sections 135 and 137
The court found no basis for discretionary exclusion. It accepted that the $30 million generated under the Rights Termination Agreement was significant, and acknowledged the volume and complexity of the transactional evidence. However, it held that those risks could be adequately addressed by jury directions, and that the Crown's undertaking to present the evidence carefully, economically, and with visual aids was an appropriate response to the comprehension challenges involved (at [79]-[81]). The court noted that if, during the trial, the volume of evidence threatened to mislead the jury, the question of exclusion could be revisited (at [80]). It was not satisfied that the risk of unfair prejudice was such as to warrant exclusionary discretion under sections 135 or 137 (at [83]).
Orders Made
- Evidence admitted for limited purpose, with appropriate directions to be crafted to ensure the jury understands the limits on its use, particularly in the case against the former Minister and, to the extent determined at trial, against the two family members.
Key Takeaways
- Evidence of conduct occurring after a charged conspiracy has been fully executed can be admissible as circumstantial evidence probative of the conspiracy's existence and scope, provided the Crown can identify a relevant nexus between that conduct and the conspiracy charged (at [39], [62]).
- Under section 87(1)(c) of the Evidence Act 1995 (NSW), statements made with implied authority in furtherance of a common purpose are admissible as admissions, but this provision does not displace the admissibility of circumstantial evidence tendered for a non-hearsay purpose (at [1]).
- The Supreme Court confirmed that it is not necessary for the Crown to show that a co-accused could have anticipated the precise steps taken by others to exploit the fruits of a conspiracy, or the ultimate financial magnitude of those benefits (at [15]).
- Where risks of jury prejudice arising from voluminous and complex transactional evidence can be adequately managed by directions, discretionary exclusion under sections 135 or 137 of the Evidence Act is not warranted, though a court may revisit that assessment during the trial (at [80], [83]).
- A court may decline to accept an artificially narrow characterisation of the events the Crown seeks to prove where the evidence establishes that relevant dealings in fact continued beyond the boundary the accused seek to impose (at [38]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
- Mining Act 1992 (NSW)
Cases
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Maitland v R; Macdonald v R [2019] NSWCCA 32
- R v Baladjam (No 38) [2008] NSWSC 1458
- R v Milne (No 1) [2010] NSWSC 932