Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 2) [2019] NSWSC 775
Court: Supreme Court of New South Wales
Date: 18 June 2019
Judge(s): Fullerton J
Background
This decision arose from a criminal trial in which the Crown alleged that the accused participated in a conspiracy involving the improper disclosure of confidential government information about coal exploration licences at Mount Penny. The defendants included a former Minister and members of the Obeid family. The alleged motive was to advance the financial interests of the Obeid family through mining ventures.
The Crown sought to tender a chain of emails exchanged on 9 and 10 November 2010 among a chartered accountant, a solicitor-director, a tax consultant, and Paul Obeid (son of one accused and brother of another). The emails concerned the tax implications of a proposed $60 million transfer of interests in the Mount Penny Joint Venture with Cascade Coal Pty Ltd.
The Crown argued the emails were probative of the accused's motive, specifically that they sought a long-term income stream from the exploitation of information obtained through the alleged conspiracy. Two of the accused, Moses Obeid and Edward Obeid, objected to the tender on hearsay grounds and, in the alternative, on relevance.
Legal Issues
- Whether the email trail was admissible as business records under section 69 of the Evidence Act 1995 (NSW)
- Whether statements made by Paul Obeid in his email constituted admissions by Moses Obeid and Edward Obeid under section 87(1)(a) of the Evidence Act, on the basis that he made them with actual or ostensible authority on their behalf
- Whether, even if authorised, Paul Obeid's statements were capable of constituting admissions adverse to the interests of the accused for the purposes of the definition in the Dictionary to the Evidence Act
Decision
Issue 1: Business records exception under section 69
The court was not satisfied that the preconditions for the business records exception were met (at [18]). To qualify, the email trail would need to form part of the records kept by Lands Legal in the course of or for the purposes of that firm's business, and the representations within it would need to have been made or recorded in the course of or for the purposes of that business (at [16]). The court found it was not clear that Paul Obeid's email, sent to the accountant Mr Sassine and then forwarded by him, was kept by the solicitor Mr Chalabian as a business record of Lands Legal, or that the representations it contained were made in the course of or for the purposes of Mr Chalabian's legal practice (at [17]).
Issue 2: Admissions by authority under section 87(1)(a)
The court rejected the Crown's submission that Paul Obeid had actual or ostensible authority to make statements on behalf of Moses Obeid or Edward Obeid when providing information to an accountant for tax advice purposes (at [26]). The Crown pointed to instructions Paul Obeid, Moses Obeid, and Gerard Obeid had each given to a solicitor between 2008 and 2009 regarding property acquisitions and negotiations with Cascade Coal. The court was not persuaded that authority exercised in those earlier transactions extended, almost two years later, to Paul Obeid providing background information to an accountant relaying queries from a tax adviser (at [25]-[26]). The court noted the position might have been different had the Crown called Mr Sassine to give evidence about the circumstances in which he sought information from Paul Obeid in November 2010 (at [27]).
Issue 3: Whether the statements constituted admissions
Even accepting for the sake of argument that Paul Obeid was providing information on behalf of all beneficiaries of the Obeid Family Trust No 2, including Moses Obeid and Edward Obeid, the court was not persuaded that his statements were capable of constituting admissions by either of the accused (at [28]). Paul Obeid's statements about the coal potential of Cherrydale Park and the family's interest in mining operations did not, of themselves, tend to prove that the accused participated in an unlawful agreement to obtain confidential government information in breach of ministerial duties (at [28]).
Orders Made
- Evidence not admitted (the tender of the relevant pages of the Crown Tender Bundle was rejected).
Key Takeaways
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Under section 69 of the Evidence Act 1995 (NSW), a document produced to or held by a law firm is not automatically a business record of that firm. The court must be satisfied that the specific document was kept in the course of, or for the purposes of, the firm's business, not merely in the personal or non-legal capacity of a solicitor who also held another role.
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Authority established by prior joint instructions to a solicitor on related but distinct transactions does not automatically carry over to authorise a party to make statements on behalf of co-principals in different circumstances, to different persons, and at a considerably later time (at [25]-[26]).
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For a statement to be admissible as an admission under section 87(1)(a), the court must be satisfied both that the maker had authority to speak on behalf of the accused and that the statement is capable of being adverse to the accused's interests in the outcome of the proceedings. Satisfying only one limb is insufficient (at [22], [28]).
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The absence of a witness who could explain the circumstances in which information was sought and provided was identified by the court as a gap in the Crown's evidence that might have supported the authority question under section 87(1)(a) (at [27]).
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Statements showing a family group's financial interest in developing a mining resource do not, without more, constitute admissions capable of proving participation in an alleged criminal conspiracy to obtain confidential information through the misconduct of a public official (at [28]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 69, 87(1)(a)
Cases
- Not stated