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District Court 4 February 2022

R v Obeid

[2022] NSWDC 51

Public order & justice offences
CRIMINAL PROCEEDINGS IMPROPERLY OBTAINED EVIDENCE UNFAIR USE OF ADMISSIONS MEANING OF CORRUPT CONDUCT PRINCIPAL FUNCTIONS OF ICAC

Citation: R v Obeid [2022] NSWDC 51
Court: District Court of New South Wales
Date: 4 February 2022
Judge: Zahra SC DCJ

Background

The accused faced 10 counts of giving false evidence to the Independent Commission Against Corruption (ICAC) under s 87 of the Independent Commission Against Corruption Act 1988 (NSW). The charges arose from evidence given at both a Compulsory Examination (Counts 1 and 5) and Public Inquiries (Counts 2 to 4 and 6 to 10) conducted by ICAC.

The underlying ICAC investigation concerned the circumstances in which a new Honda CR-V motor vehicle was procured for the wife of a then NSW Minister for Roads. The central allegation was that approximately $10,800 of the vehicle's $44,800 purchase price was contributed by an entity associated with the accused, without the Minister's apparent knowledge, in circumstances said to raise questions about corrupt conduct.

Before trial, the accused brought three pre-trial applications seeking to prevent the proceedings from continuing. He argued that ICAC had acted beyond its lawful powers when examining him, that the evidence obtained should be excluded on two separate grounds under the Evidence Act 1995 (NSW), and that the proceedings as a whole should be permanently stayed.

  • Whether the ICAC investigation was conducted within jurisdiction, given that the accused's conduct involved a private individual providing a benefit to a public official who was allegedly unaware of that benefit and did not act corruptly
  • Whether the accused's conduct could constitute "corrupt conduct" within the meaning of ss 8 and 9 of the ICAC Act, including whether it could satisfy the requirement under s 9(1)(a) that the conduct could constitute or involve a criminal offence
  • Whether the evidence obtained during the Compulsory Examination and Public Inquiry was improperly obtained and should be excluded under s 138 of the Evidence Act
  • Whether it would be unfair to use the accused's statements as admissions in a criminal trial, warranting exclusion under s 90 of the Evidence Act, particularly given the compulsory nature of the examination and the Commission's possession of contradictory documentary evidence

Decision

Permanent stay: Zahra SC DCJ dismissed the application for a permanent stay. The Court was not satisfied that the ICAC investigation was conducted beyond jurisdiction. The argument that the accused's conduct could not constitute "corrupt conduct" because the Minister was allegedly unaware of the benefit, and therefore could not have been influenced by it, did not succeed at this stage so as to warrant the drastic remedy of a permanent stay.

Section 138 exclusion (improperly obtained evidence): The Court declined to exclude the accused's representations under s 138 of the Evidence Act. This provision applies where evidence is obtained illegally or improperly. The Court was not persuaded that ICAC was acting outside the scope of its power when it compelled the accused to give evidence, and therefore the basis for invoking s 138 was not established.

Section 90 exclusion (unfair use of admissions): The Court also declined to exclude the representations under s 90, which allows exclusion of admissions where their use would be unfair. The accused argued that the Commission had deliberately encouraged him to repeat a false chronology of events at the Public Inquiry while in possession of documentary material contradicting that chronology. The Court found, on the facts, that this did not amount to unfairness of the kind s 90 addresses. The accused was legally represented at the Public Inquiry, gave detailed and deliberate answers, and had significant time between examinations to reconsider his earlier evidence. There was no finding that the Commission's questioning was designed to manufacture further false evidence for prosecutorial purposes.

Orders Made

  • The application for a permanent stay of the proceedings (or alternatively proceedings other than Counts 1 and 5) was dismissed.
  • The application to exclude the Crown's representations under s 138 of the Evidence Act (or alternatively in relation to proceedings other than Counts 1 and 5) was dismissed.
  • The application to exclude the Crown's representations under s 90 of the Evidence Act (or alternatively in relation to proceedings other than Counts 1 and 5) was dismissed.

Key Takeaways

  • The District Court dismissed all three pre-trial applications, allowing the prosecution on all 10 counts of giving false evidence to ICAC to proceed to trial.
  • A permanent stay of criminal proceedings is a drastic remedy. The Court was not satisfied on these facts that the ICAC investigation exceeded jurisdictional limits so as to warrant that outcome.
  • Under s 9(1)(a) of the ICAC Act, conduct does not amount to "corrupt conduct" unless it could constitute or involve a criminal offence. The accused's argument that the Minister's alleged ignorance of the benefit meant no criminal offence under s 249B of the Crimes Act 1900 could be made out was considered but did not succeed at the pre-trial stage.
  • Section 90 of the Evidence Act permits courts to exclude admissions where their use would be unfair. The District Court found that a Commission's possession of contradictory documentary material, without more, does not automatically render a subsequent examination unfair, particularly where the accused was legally represented and gave considered evidence.
  • Compulsory examination by ICAC does not, without a finding that the Commission was acting beyond power, render resulting evidence "improperly obtained" for the purposes of s 138 of the Evidence Act.

Legislation and Cases Referenced

Legislation:
- Independent Commission Against Corruption Act 1988 (NSW), ss 8, 9, 87
- Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW)
- Evidence Act 1995 (NSW), ss 90, 138
- Crimes Act 1900 (NSW), s 249B

Cases:
- Duncan v Independent Commission Against Corruption (2015) 256 CLR 83
- Duncan v Independent Commission Against Corruption [2016] NSWCA 143
- Greiner v ICAC (1992) 28 NSWLR 125
- ICAC v Cunneen [2015] HCA 14
- Jago v District Court of NSW (1989) 168 CLR 23
- Jamieson v R [1988] VR 879
- Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption [2018] NSWSC 387
- Mehajer v The Queen (2014) 244 A Crim R 15