Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 12) [2020] NSWSC 1946
Court: Supreme Court of New South Wales
Date: 15 October 2020
Judge: Fullerton J
Background
This decision arises in a criminal trial in which three accused faced charges of conspiracy involving alleged ministerial misconduct. The conspiracy was said to span from 1 September 2007 to 31 January 2009 and concerned, among other things, the communication of confidential information relating to coal exploration licences in the Bylong Valley region of New South Wales.
The Crown sought to tender a 132-page document called the "Phone Summary," compiled under section 50 of the Evidence Act 1995 (NSW). The summary captured 7,294 instances of phone contact between eight individuals across a four-year period, including all three accused and several others connected to the alleged conspiracy.
The central dispute was whether the Phone Summary met the admissibility requirements under section 50 and, more particularly, whether the phone contact evidence was capable of being relevant to proving the conspiracy and the accused's participation in it.
Legal Issues
- Whether the Phone Summary satisfied the preconditions for admissibility under section 50 of the Evidence Act 1995 (NSW)
- Whether the Phone Summary, in the absence of evidence about the content of the calls, was relevant under section 55 of the Evidence Act or was instead "intractably neutral"
- Whether the Phone Summary should be edited to exclude phone contact outside the period of the alleged conspiracy
Decision
Issue 1: Satisfaction of the section 50 preconditions
Fullerton J was satisfied that the preconditions to admissibility under section 50 of the Evidence Act had been met (at [24]). The court applied the three-part test identified by Ward J in Re Idylic Solutions Pty Ltd; ASIC v Hobbs [2012] NSWSC 568 and found those requirements satisfied on the materials before it (at [25]-[26]).
Issue 2: Relevance and the "intractably neutral" argument
The accused argued that, without any evidence of the content of the calls, phone contact between parties with established personal and professional relationships was inherently neutral and incapable of proving anything. The court rejected that submission (at [28]). Fullerton J accepted that the content of most calls could not be categorically established and that innocent explanations existed for the frequency of contact between the accused. However, the court found that the Phone Summary was not intractably neutral: concentrated periods of contact at specific points in the Crown's chronology of key events, including contact between Moses Obeid and Mr Macdonald around critical dates, were capable of supporting proof of the facts in issue when considered as part of the Crown's broader circumstantial case (at [28]). The court gave as examples certain contact in June 2008 when a potential investor engaged Moses Obeid regarding coal mining activities, and a cluster of calls on 16 February 2009, the day the extended expression of interest process closed (at [28]).
Issue 3: Phone contact outside the conspiracy period
The court declined to edit the Phone Summary to remove contact outside the alleged conspiracy period of 1 September 2007 to 31 January 2009 (at [29]). Contact between non-conspirators and between the accused and non-conspirators was found to be of some assistance to the Crown, though the court described it as of marginal weight (at [29]). The broader four-year timeframe was also regarded as providing a comparator against which concentrated contact during the conspiracy period could be assessed (at [17]).
Issue 4: Probative weight reserved
The court was careful to note that its ruling on admissibility should not be read as reflecting any view on the ultimate probative weight of the Phone Summary. That question was expressly left for closing submissions and the judgment on verdict (at [30]). The court also noted that, sitting without a jury, any risk of overweighting or unfairness in the Crown's use of the Phone Summary could be addressed at that later stage (at [31]).
Orders Made
- Phone Summary admitted into evidence.
Key Takeaways
- Under section 50 of the Evidence Act 1995 (NSW), a documentary summary of voluminous phone records can be admissible even where there is no direct evidence of the content of the calls recorded, provided the preconditions in that section are met and the summary is capable of rationally affecting the probability of a fact in issue (at [24], [27]).
- A submission that phone contact evidence is "intractably neutral" will not necessarily succeed merely because innocent explanations exist for that contact. The Supreme Court found that concentrated contact at key moments in a chronology of events can carry circumstantial weight as part of a broader evidentiary case (at [28]).
- Admissibility under section 50 is a distinct question from probative weight. The court expressly reserved assessment of how much weight the Phone Summary ultimately deserved, leaving that for final submissions and verdict (at [30]).
- Objectionable content within accompanying explanatory notes, such as statistical analysis or material involving the application of judgment, is not a permissible component of a section 50 summary or documents tendered to aid its interpretation. The Crown in this case withdrew that portion of the explanatory notes on objection (at [4]).
- Where a criminal trial proceeds before a judge alone, the court indicated that risks of unfair prejudice arising from the use of a summary document can be managed through closing submissions and the reasoning in the judgment on verdict, rather than necessarily by excluding the document at the admissibility stage (at [31]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) , s 50
Cases
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286
- Re Idylic Solutions Pty Ltd; Australian Securities and Investments Commission (ASIC) v Hobbs [2012] NSWSC 568