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Supreme Court 25 November 2020

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 15)

[2020] NSWSC 1949

Fraud & dishonesty
EVIDENCE HEARSAY EXCEPTIONS ADMISSIONS ADMISSIONS MADE WITH AUTHORITY

Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 15) [2020] NSWSC 1949
Court: Supreme Court of New South Wales
Date: 25 November 2020
Judge(s): Fullerton J

Background

Three accused faced trial on an indictment alleging a conspiracy by which a former Minister of the Crown would wilfully misconduct himself in his ministerial duties to benefit members of the Obeid family in connection with the granting of a coal exploration licence at Mount Penny, New South Wales. Two of the accused, referred to here as the senior accused and his son, were alleged to have participated in that agreement with the third accused, the former Minister.

Between October 2009 and December 2012, the two Obeid accused gave interviews to several journalists, and separately made statements during the execution of a search warrant at premises associated with their family. The Crown sought to tender various statements from those occasions as admissions against interest or as lies told with a consciousness of guilt. Two individuals, Mr Lewis and Mr Campo, had also communicated with one of the journalists by email, and the Crown sought to tender those emails against the accused as admissions made in furtherance of a common purpose under the Evidence Act.

The accused objected to the whole body of evidence on multiple grounds: that it was inadmissible hearsay, that it did not satisfy the preconditions for admission as consciousness of guilt lies, and that if admissible it should be excluded by the court's discretionary powers.

Legal Issues

  • Whether email representations by third parties (Mr Lewis and Mr Campo) were admissible against the accused under s 87(1)(c) of the Evidence Act as representations made in furtherance of a common purpose
  • Whether newspaper articles were admissible for non-hearsay purposes
  • Whether out-of-court statements by each accused were capable of constituting consciousness of guilt lies at common law
  • Whether out-of-court statements qualified as admissions against interest under s 81 of the Evidence Act
  • Whether s 83 of the Evidence Act prohibited using one accused's admissions against a co-accused, and whether the concept of joint admissions could overcome that prohibition
  • Whether any admissible evidence should nonetheless be excluded under ss 90, 135, or 137 of the Evidence Act

Decision

Issue 1: Admissibility of the Lewis and Campo emails under s 87(1)(c)

The court rejected the tender of the email correspondence between Mr Lewis and Mr Campo and the journalist. The Crown could not satisfy s 87(1)(c) because the representations were not made in furtherance of a common purpose shared with the accused within the meaning of the conspiracy charged (at [20]-[22]). The court held that framing a separate common purpose around "realisation of the whole deal in relation to the three properties" was an artifice to circumvent the section's requirements (at [22]). The Crown's alternative argument that the emails were admissible as a business record did not overcome the need to satisfy s 87(1)(c) (at [23]).

Issue 2: Non-hearsay use of newspaper articles

The court admitted Ms Ong's article for a non-hearsay purpose against the former Minister, as proof that its publication prompted him to make false claims consistent with a consciousness of guilt (at [25]). The court declined to admit Ms Davies' article for a non-hearsay purpose against the Obeid accused because there was no evidence establishing that the article's publication caused the relevant accused to negotiate with Cascade Coal, and the inference sought by the Crown could not be drawn as a matter of law in the absence of supporting facts (at [26]).

Issue 3: Consciousness of guilt lies

Of 36 representations the Crown alleged were consciousness of guilt lies, the court found that only 10 were capable of supporting the inference that they were deliberately false statements told when the accused were conscious of having conspired with the former Minister in the manner alleged (at [48]-[49]). The court rejected the argument that the timing of the charges relative to when the alleged lies were told was legally relevant to this question (at [47]). For the remaining 26, the court was not satisfied of the requirements, citing insufficient precision about the circumstances or events said to make the statements demonstrably false, insufficient materiality, or an absence of a demonstrable link between the alleged lie and consciousness of guilt of the specific conspiracy charged (at [58]).

Issue 4: Admissions against interest under s 81

The court was satisfied that the tape-recorded December 2012 interview with journalists provided a sufficiently reliable foundation to find that the statements attributed to the accused were made by them (at [74]). The quality of Ms Davies' and Ms Ong's notes presented greater difficulty, and the court was satisfied only that certain specific representations from those interviews were "made" by the relevant accused to the standard required by s 88 of the Evidence Act (at [75]-[78]). Of the representations admitted, the court identified several categories capable of being adverse to the accused's interests in the outcome of the trial, including statements about knowledge of property arrangements, contact with the former Minister, and claimed ignorance of associated companies (at [87]-[91]). The court rejected Edward Obeid's representation about computer illiteracy as failing the adversity test, noting that the sufficiency of other evidence of participation was the proper focus rather than the absence of electronic communications (at [111]-[112]). Representations by Moses Obeid during the search warrant execution were rejected because the court was not satisfied the statements were deliberate rather than inadvertent (at [113]-[114]).

Issue 5: Joint admissions and s 83

Section 83 of the Evidence Act prohibits evidence of one accused's admission being used against a co-accused unless the co-accused consents or s 87(1)(c) applies (at [93]-[94]). The concept of "joint admissions" is not recognised in the Evidence Act and the court found the label unhelpful (at [97]-[98]). However, the court found that the extended uninterrupted dialogue of the December 2012 interview, in which both accused actively participated, used first-person plural language, and at times expressly adopted each other's statements, was capable of rendering certain representations admissible against both accused as individual admissions against interest (at [98]-[101]).

Issue 6: Discretionary exclusion

The court found no basis to exclude the admitted evidence under ss 90, 135, or 137 of the Evidence Act (at [115]-[119]). The circumstances in which the accused spoke to journalists, including any media pressure they may have felt, did not engage the unfairness contemplated by s 90. The voluntary and informed nature of the accused's participation in the December 2012 interview, conducted with awareness of the public inquiry under way, reinforced that conclusion (at [118]).

Orders Made

The court's rulings are reflected in the schedule to the judgment and at the following paragraphs:

  • Email correspondence between Mr Lewis, Mr Campo and Ms Davies: rejected as inadmissible (at [23])
  • Ms Ong's article: admitted for a non-hearsay purpose against the former Minister (at [25])
  • Ms Davies' article: rejected for the non-hearsay purpose advanced against the Obeid accused (at [26])
  • Rulings on individual line entries of representations: set out in the schedule to the judgment

Key Takeaways

  • Under s 87(1)(c) of the Evidence Act, a representation by a person who is not a party to proceedings is only admissible against an accused as an admission if it was made in furtherance of a common purpose that is the very subject of the conspiracy charged. A judicially constructed substitute purpose designed to bring third-party representations within the section will not suffice (at [21]-[22]).

  • Before an out-of-court statement qualifies as a consciousness of guilt lie, the Crown must identify with precision why the statement is demonstrably false, establish a material link between the lie and the specific offence charged, and satisfy the court that the lie was deliberate rather than inadvertent. Generalised assertions of adversity are insufficient (at [43]-[45]).

  • The timing of criminal charges relative to when alleged lies were told does not affect the legal question of whether those statements are capable of constituting consciousness of guilt lies (at [47]).

  • Section 83 of the Evidence Act prevents one co-accused's admission being used against another in joint criminal proceedings unless consent is given or s 87(1)(c) applies. However, extended collaborative dialogue in which both accused actively participated and repeatedly adopted each other's statements may render individual representations admissible against both accused as admissions against interest, without needing to invoke the concept of joint admissions (at [93]-[94], [98]-[101]).

  • When assessing whether a newspaper article is admissible for a non-hearsay purpose, the court requires actual evidence capable of establishing the causal inference the Crown seeks to draw. A bare assertion that publication prompted subsequent conduct is not enough to support the inference as a matter of law (at [26]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51
- Higgins v R [2020] NSWCCA 149
- Lane v R [2013] NSWCCA 317
- Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71
- Martinez v State of Western Australia (2007) 172 A Crim R 389; [2007] WASCA 143
- Mercer v R (1993) 67 A Crim R 91
- Mulvihill v R [2016] NSWCCA 259
- Nguyen v The Queen [2020] HCA 23
- Panza & Di Maria v R [2013] NSWCCA 21
- R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 1) [2019] NSWSC 322
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 13) [2020] NSWSC 1947
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 16) [2020] NSWSC 1950
- R v Middleton [2001] Crim LR 251
- R v ST (1997) 92 A Crim R 390
- R v Zheng (1995) 83 A Crim R 572
- Steer v R (2008) 191 A Crim R 435; [2008] NSWCCA 295
- Vaccaro v Flammia [2008] NSWSC 1322