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Supreme Court 13 November 2020

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 14)

[2020] NSWSC 1948

Fraud & dishonestyPublic order & justice offences

Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 14) [2020] NSWSC 1948
Court: Supreme Court of New South Wales
Date: 13 November 2020
Judge: Fullerton J

Background

Three accused, a former New South Wales Minister for Mineral Resources and two co-accused, were on trial (judge alone) for conspiracy to commit wilful misconduct in public office. The charge arose from the alleged grant of a coal exploration licence at Mount Penny, New South Wales, in circumstances alleged to have favoured the private interests of the co-accused and their family members.

The trial had been running since 10 February 2020. By day 52, the Crown served a revised statement of particulars, updating the case it had originally particularised in March 2019. A further revision followed on day 59. The accused objected, arguing the amendments introduced a different or alternative case theory at an advanced stage of proceedings, causing procedural unfairness.

The core dispute was whether the Crown should be permitted to amend its particulars in this manner, or whether doing so would occasion unfair prejudice to the accused by shifting the case they had been required to meet.

  • Whether the Crown's revised statement of particulars amounted to the introduction of a new or alternative case theory, rather than a legitimate refinement of the existing case.
  • Whether permitting the amendments would cause procedural unfairness to any of the accused.
  • What principles govern the amendment of Crown particulars during an ongoing criminal trial.
  • The significance of the Crown withdrawing one of the originally pleaded acts of misconduct (the third alleged act), and whether that withdrawal undermined the Crown case as opened.

Decision

Fullerton J examined the nature and extent of the changes between the 2019 Statement of Particulars and the Revised Statement of Particulars served during the trial. The court considered whether the revisions departed materially from the case the Crown had opened and the way proceedings had been conducted, applying established principles governing particulars in criminal trials, including those drawn from Johnson v Miller, Gerakiteys v The Queen, and The King v Weaver.

The court found that the amendments did not introduce a fundamentally different or new case theory. The revised particulars were assessed as a refinement of the existing particularised case, consistent with the manner in which the Crown had opened and conducted the trial. The accused had not sought further particulars at earlier stages and had not been deprived of a fair opportunity to meet the Crown's allegations.

On the withdrawal of the third alleged act of misconduct, the Crown no longer pressed that particular act. Each accused reserved the right to rely on that withdrawal as a factor bearing on the ultimate strength of the Crown case. The court noted this, though the withdrawal did not itself determine the outcome of the amendment application.

The court permitted the Crown to proceed on the basis of the Revised Statement of Particulars, concluding that no procedural unfairness to the accused had been established sufficient to prevent the amendments.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Amendments to Crown particulars during a criminal trial will not necessarily constitute procedural unfairness merely because they are served at an advanced stage, provided they represent a refinement rather than a departure from the case as opened and conducted.
  • The principles from Johnson v Miller (1937) 59 CLR 467, Gerakiteys v The Queen (1984) 153 CLR 317, and The King v Weaver (1931) 45 CLR 321 guided the court's assessment of what Crown particulars must do: define the case the accused is required to meet, without introducing new or alternative theories mid-trial.
  • Where accused have not sought further particulars at earlier stages of proceedings, that circumstance is relevant to assessing any claimed prejudice from later amendments.
  • The Crown's withdrawal of a pleaded act of misconduct during trial does not automatically defeat the prosecution; the remaining alleged acts may still support the charge, though the accused may rely on the withdrawal when contesting the overall sufficiency of the Crown's case.
  • A judge-alone trial under s 132 of the Criminal Procedure Act 1986 (NSW) does not alter the procedural obligations on the Crown with respect to particulars and fair notice of the case to be met.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 20, 132

Cases
- Anderson v R (1991) 53 A Crim R 421
- Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8
- Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
- King v The Queen (1986) 161 CLR 423; [1986] HCA 59
- Maitland v R; Macdonald v R [2019] NSWCCA 32
- Mok v R (1987) 27 A Crim R 438
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 6) (Supreme Court (NSW), Fullerton J, 19 July 2019, unrep)
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 7) [2019] NSWSC 1916
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 8) [2019] NSWSC 1915
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 9) [2019] NSWSC 1785
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 13) [2020] NSWSC 1947
- The King v Weaver (1931) 45 CLR 321; [1931] HCA 23