Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 16) [2020] NSWSC 1950
Court: Supreme Court of New South Wales
Date: 25 November 2020
Judge(s): Fullerton J
Background
This judgment is an addendum to an earlier ruling (No 15) in a criminal trial involving allegations of conspiracy. The case concerned, among other things, the admissibility of various statements made by the accused during media interviews conducted between 2009 and 2012, as well as statements made during a search warrant execution in 2011.
The specific issue in this addendum arose from a telephone interview conducted by journalist Ms Anne Davies with the accused Edward Obeid in May 2010. During that interview, Ms Davies asked a question touching on the company Voope Pty Ltd, its connection to a mining licence at Mount Penny, its possible role in financing a mining tender, and whether it was an Obeid family company.
The Crown disclosed the precise terms of Ms Davies' question shortly before this ruling. The court had previously made only a provisional ruling on the admissibility of Edward Obeid's response to that question.
Legal Issues
- Whether the journalist's question, which contained hearsay assertions, was admissible under the Evidence Act 1995 (NSW)
- Whether Edward Obeid's answer to that question was capable of constituting an admission adverse to his interests in the trial
Decision
Issue 1: Admissibility of the journalist's question
Ms Davies posed her question in three distinct parts: whether Voope Pty Ltd was involved in seeking a mining licence at Mount Penny, whether it helped finance a mining tender, and whether it was an Obeid family company (at [7]). Although the question contained a range of hearsay assertions, Fullerton J held it was admissible under s 60 of the Evidence Act 1995 (NSW) for a non-hearsay purpose. Its admissible purpose was to provide context for understanding Edward Obeid's answer, not to prove the truth of the matters asserted in the question itself (at [8]).
Issue 2: Capacity of the response to constitute an adverse admission
Edward Obeid's response, in which he said he does not "get involved in the business" of his sons, was found to be capable of constituting an admission adverse to his interests (at [8]). Fullerton J was satisfied that the question, taken as a whole, was capable of being understood as directed to his knowledge of a state of affairs arising during the alleged conspiracy. On that basis, his answer was capable of being read as an implied acknowledgment that Voope Pty Ltd was used by "the boys" for business purposes connected to coal mining potential associated with family-owned or affiliated rural holdings (at [8]).
Orders Made
- The journalist's question to Edward Obeid is admissible under s 60 of the Evidence Act 1995 (NSW) for the non-hearsay purpose of contextualising his answer.
- Edward Obeid's answer is capable of constituting an admission adverse to his interests in the trial.
Key Takeaways
- Under s 60 of the Evidence Act 1995 (NSW), a question containing hearsay assertions may be admitted not for the truth of those assertions, but for the non-hearsay purpose of contextualising a co-located response that is itself potentially admissible as an admission.
- The Supreme Court confirmed that an accused's capacity to make an implied admission must be assessed by reference to what the question could reasonably have conveyed to that person at the time it was posed, not with the benefit of hindsight.
- A denial of involvement, considered alongside the context in which it was made, may be capable of carrying an implied recognition of facts adverse to the speaker's interests at trial.
- This ruling resolved a previously provisional evidentiary ruling, illustrating that final admissibility determinations in complex criminal trials can depend on subsequently disclosed material such as the precise terms of a witness's conference account.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 15) [2020] NSWSC 1949.