Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 3) [2019] NSWSC 898
Court: Supreme Court of New South Wales
Date: 18 June 2019
Judge(s): Fullerton J
Background
This decision arose in the course of a criminal trial in which three accused faced charges relating to an alleged conspiracy connected to the Mount Penny Coal Release Area in New South Wales. The accused included a former government minister and members of a prominent family with interests in rural properties within that coal release area.
The central property in dispute was Cherrydale Park, purchased in September 2007 by a trustee company associated with the Obeid family. The Crown alleged that, after Cherrydale Park fell within the Mount Penny Coal Release Area, the accused took steps to conceal ownership of the property and coordinated the acquisition of adjacent properties by associates, all with a view to maximising financial returns from anticipated mining activity.
Two interlocutory evidentiary rulings were sought. The first concerned a large number of draft documents relating to the attempted restructuring of Cherrydale Park's ownership. The second concerned an email sent by the Chief of Staff of the accused minister to an officer of the Department of Natural Resources, and whether an inference was available as to why that enquiry was made.
Legal Issues
- Whether draft and unexecuted documents relating to the attempted transfer of legal ownership of Cherrydale Park were admissible, principally against the objection of one accused on grounds of relevance.
- Whether an inference was available that a water licence enquiry made by the minister's Chief of Staff was made on behalf of the minister, at the request of a co-accused.
- Whether the acquisition of Cherrydale Park in 2007 was itself admissible as an act in furtherance of the conspiracy.
- Whether evidence of the acquisition of adjacent properties by associates of the accused was admissible, and whether any unfair prejudice required its rejection.
Decision
Issue 1: Admissibility of draft documents relating to Cherrydale Park ownership changes
The court admitted the draft and unexecuted documents relating to the various attempts to change the registered proprietorship of Cherrydale Park between October 2008 and March 2009. The court was satisfied that these steps, taken at the instigation or with the encouragement of both accused Obeids, were admissible to prove the existence of the alleged conspiracy, including its scope and object (at [17]). The evidence was also found to be probative of the degree of control the accused Obeids exercised over the registered proprietorship of the property (at [18]).
The court found the Call Option Deed dated 5 January 2009, together with related documents, was designed to ensure that anticipated profits from any sale of Cherrydale Park to Cascade Coal would devolve back to the Obeid family trust, notwithstanding the attempted transfer of legal title to a nominee company (at [11]).
Issue 2: Admissibility of evidence concerning adjacent properties
The court declined to reject evidence concerning the acquisition of Donola and Coggan Creek by associates of the accused Obeids on grounds of unfair prejudice. It found that any risk the jury might treat this material as evidence of an uncharged conspiracy could be addressed by appropriate directions (at [8]).
Issue 3: Whether the 2007 acquisition was an act in furtherance of the conspiracy
The Crown expressly disavowed any contention that the acquisition of Cherrydale Park in September 2007 was itself an act in furtherance of the conspiracy or evidence of participation in it. The court accepted that position (at [22]). However, evidence that the accused minister knew of the Obeid family's ownership of Cherrydale Park as early as September 2007 was found admissible to prove both that he later lied to his Chief of Staff about that knowledge, and that he agreed to participate in the conspiracy with awareness of its nature and scope (at [23]-[26]).
Issue 4: Inference available from the water licence email
The court held that, despite the Chief of Staff's claimed inability to recall who directed him to make the water licence enquiry, a strong inference was available that the enquiry was made on behalf of the accused minister at the request of a co-accused (at [36]). That inference was reinforced by the co-accused's own statement to the vendor that he would ask "his mate" to look into the licences, and by evidence that a departmental contact subsequently reached out to the vendor about the property (at [37]-[38]).
Orders Made
- Evidence admitted (at [17]-[18] and [36])
Key Takeaways
- Draft and unexecuted documents can be admissible in a conspiracy prosecution where they are probative of the existence, scope, and object of the alleged conspiracy, even where the transactions they contemplated were never completed (at [17]-[18]).
- Evidence of property acquisitions by third parties who are friends or associates of an accused may be admitted where it is capable of proving the accused's coordinated conduct in furtherance of the alleged conspiracy, provided any risk of unfair prejudice can be remedied by jury directions (at [8]).
- The Supreme Court confirmed that an available inference need not be the only rational inference: the court is satisfied of admissibility where the inference contended for is available on the evidence, even if other explanations exist, leaving the ultimate question of fact to the jury (at [20], [36]).
- A witness's inability to positively exclude a particular inference, combined with an inability to nominate any plausible alternative, may itself support the availability of a strong inference favourable to the Crown (at [35]-[36]).
- The court drew a clear distinction between evidence going solely to one accused (such as a lie told by the accused minister to his Chief of Staff) and evidence tendered against all accused to prove the conspiracy's existence and nature; only the latter use was contested, and it was admitted (at [25]-[26]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated