Citation: Macdonald, Ian v R; Edward Obeid v R; Moses Obeid v R [2023] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 6 October 2023
Judges: Bell CJ; Basten AJA; Button J
Background
The three appellants were a former NSW Minister for Mineral Resources and two members of a prominent family with property interests in the Bylong Valley. They were charged with conspiracy to commit the common law offence of wilful misconduct in public office. The prosecution alleged that, by no later than 9 May 2008, they had agreed that the Minister would take steps to engineer the grant of a coal exploration licence in a way that would benefit the family, whose property at Mount Penny sat above a significant coal reserve.
The trial was conducted before Fullerton J sitting without a jury. It commenced in February 2020, with final submissions in February 2021 and verdicts delivered on 19 July 2021. The prosecution identified eight acts of ministerial misconduct carried out in furtherance of the agreement. All three appellants were convicted and sentenced to terms of imprisonment.
Each appellant appealed against conviction. The grounds fell into three broad categories: challenges to the elements of the offence as charged, arguments that the verdicts were unreasonable or unsupported by evidence, and miscellaneous claims of legal and factual error.
Legal Issues
- Whether a conspiracy to commit misconduct in public office requires agreement on specific unlawful acts, or whether agreement on a general unlawful purpose is sufficient
- Whether each party to the conspiracy must agree to personally carry out some unlawful overt act
- Whether a "but for" causal link must be established between the agreement and the alleged misconduct
- Whether the conspirators must agree that the conduct would reach a particular level of moral culpability
- Whether a Shepherd direction (requiring each indispensable factual link in a chain of circumstantial proof to be established beyond reasonable doubt) was required in the judge-alone trial
- Whether the trial judge erred in declining to draw adverse inferences from the prosecution's failure to call certain witnesses
- Whether conduct by one alleged co-conspirator was properly admitted as an admission against the others
- Whether the trial judge's treatment of lies and consciousness of guilt complied with the principles in Edwards v The Queen
- Whether individual factual findings underpinning the convictions were open on the evidence
Decision
Elements of the conspiracy. The Court held that a conspiracy does not require agreement on the specific acts by which an unlawful purpose will be carried out. Provided the unlawful purpose is identified with sufficient precision, the precise means need not be settled in advance. The context here, involving a licensing process with defined steps, supplied that precision. The Court also confirmed that not every party to a conspiracy need agree to personally commit an unlawful act: a recipient of favours who does not undertake unlawful conduct themselves may still be a co-conspirator. Additionally, no motive or personal benefit on the Minister's part needed to be established, and no "but for" causal link between the agreement and the misconduct was required. It was the creation of a conflict between self-interest and public duty that constituted the relevant element of misconduct, consistent with The Queen v Boston (1923) 33 CLR 386. The Court further held that it was unnecessary to show that the conspirators agreed the conduct would involve any particular level of moral culpability.
Procedural and evidentiary grounds. The Court upheld the trial judge's approach to the Shepherd direction. Each element of the offence and every indispensable factual link in a chain of circumstantial reasoning must be established beyond reasonable doubt, but no further special direction was required on the facts of this case. The common background knowledge shared by all participants, namely the family's interest in the Mount Penny land, needed no separate directing. The Court rejected the argument that the trial judge should have given herself an adverse inference direction for the prosecution's failure to call certain witnesses: gaps in prosecution evidence may produce an acquittal, but the prosecution is not generally obliged to call every person who might give relevant evidence.
Admissions and consciousness of guilt. The Court confirmed that acts or representations of a co-conspirator are admissible against other alleged conspirators to support a finding of common purpose under ss 57(2) and 87(1)(c) of the Evidence Act 1995 (NSW). The trial judge did not need to prove the conspiracy's existence before receiving that evidence. On the consciousness-of-guilt issue, the trial judge had addressed the Edwards v The Queen principles in an earlier ruling during the trial and had identified which representations were capable of demonstrating consciousness of guilt. The Court found that the relevant factors were in fact applied, satisfying the requirement under s 133(3) of the Criminal Procedure Act 1986 (NSW) that the warnings be taken into account.
Factual challenges. The Court considered each contested factual finding, including findings about a conversation demonstrating excitement at the prospect of an exploitable coal resource, statements made by the Minister to a departmental officer, the scope of what the department had discussed with a mining company before the licence process began, and the circumstances in which a map was shown to a third party at a hotel meeting. The Court found that each of these findings was open to the trial judge on the evidence and that the criticisms advanced on behalf of the appellants lacked substance.
Orders Made
- Leave to appeal granted to each appellant pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW)
- Each appeal dismissed
Key Takeaways
- A conspiracy to commit misconduct in public office does not require that the parties agree on the precise acts to be taken in pursuit of the unlawful purpose, provided that purpose is identified with sufficient precision.
- Not every conspirator need agree to personally perform an unlawful act; a party who is the intended beneficiary of misconduct by another may still be a co-conspirator without committing any unlawful conduct themselves.
- The Court of Criminal Appeal confirmed, applying Boston, that a "but for" causal connection between the conspiratorial agreement and the acts of misconduct is not an element of the offence; the conflict between self-interest and public duty is itself the misconduct.
- Under ss 57(2) and 87(1)(c) of the Evidence Act 1995 (NSW), acts and representations of an alleged co-conspirator are admissible against other alleged conspirators to support a finding of common purpose, without the conspiracy first being independently proved.
- In a judge-alone trial, compliance with the requirement under s 133(3) of the Criminal Procedure Act 1986 (NSW) to "take into account" an Edwards-style consciousness-of-guilt warning is satisfied where the trial judge identifies and applies the relevant factors in reasons, without needing to reproduce a formal jury-style direction.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 8
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Evidence Act 1995 (NSW), ss 38, 55–57, 81, 87, 165
- Mining Act 1992 (NSW), ss 13, 14, 22, 368
- Mining Regulation 2016 (NSW), Pt 3, Div 1
Cases
- The Queen v Boston (1923) 33 CLR 386
- Gerakiteys v The Queen (1984) 153 CLR 317
- Peters v The Queen (1998) 192 CLR 493
- R v LK (2010) 241 CLR 177
- Shepherd v The Queen (1990) 170 CLR 573
- Edwards v The Queen (1993) 178 CLR 193
- Zoneff v The Queen (2000) 200 CLR 234
- HKSAR v Hui Rafael Junior (2017) 20 HKCFAR 264
- Maitland v R; Macdonald v R (2019) 99 NSWLR 376
- Ahern v The Queen (1988) 165 CLR 87
- RPS v The Queen (2000) 199 CLR 620
- Whitehorn v The Queen (1983) 152 CLR 657
- Filippou v The Queen (2015) 256 CLR 47
- Fox v Percy (2003) 214 CLR 118
- Domican v The Queen (1992) 173