Macdonald, Ian v R; Edward Obeid v R; Moses Obeid v R - [2023] NSWCCA 250 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

Macdonald, Ian v R; Edward Obeid v R; Moses Obeid v R

[2023] NSWCCA 250

Court of Criminal Appeal (NSW)|2023-04-20|Before: Bell CJ, Button J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-04-20

Before

Bell CJ, Button J

Catchwords

[2001] HCA 57 Ahern v The Queen (1988) 165 CLR 87
[1988] HCA 39 Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321
[2007] FCA 794 Chamberlain v The Queen (No 2) (1984) 153 CLR 521
[1984] HCA 7 Dansie v The Queen (2022) 96 ALJR 728

Source

Original judgment source is linked above.

Catchwords

[2001] HCA 57 Ahern v The Queen (1988) 165 CLR 87[1988] HCA 39 Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321[2007] FCA 794 Chamberlain v The Queen (No 2) (1984) 153 CLR 521[1984] HCA 7 Dansie v The Queen (2022) 96 ALJR 728[2022] HCA 25 Domican v The Queen (1992) 173 CLR 555[1992] HCA 13 Edwards v The Queen (1993) 178 CLR 193[1993] HCA 63 EE v R [2023] NSWCCA 188 Elomar v The Queen (2014) 300 FLR 323[2014] NSWCCA 303 Fennell v The Queen (2019) 93 ALJR 1219[2019] HCA 37 Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29 Fleming v The Queen (1998) 197 CLR 250[1998] HCA 68 Fox v Percy (2003) 214 CLR 118[2003] HCA 22 Gerakiteys v The Queen (1984) 153 CLR 317[2021] HCA 36 IW v City of Perth (1997) 191 CLR 1 Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8 Kanaan v R [2006] NSWCCA 109 M v The Queen (1994) 181 CLR 487[1994] HCA 63 Mahmood v The State of Western Australia (2008) 232 CLR 397

Judgment (65 paragraphs)

[1]

[2003] HCA 22 Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8 Glasser v United States (1942) 315 US 60 Higgins v R [2020] NSWCCA 149 HKSAR v Hui Rafael Junior (2017) 20 HKCFAR 264 Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 IW v City of Perth (1997) 191 CLR 1 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kanaan v R [2006] NSWCCA 109 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 Mohana v R [2023] NSWCCA 61 Mulcahy v The Queen (1868) LR 3 HL 306 Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 Peacock v The King (1911) 13 CLR 619 Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 R v Agius [2011] NSWSC 367 R v Boulanger [2006] 2 SCR 49 R v Clout (1995) 41 NSWLR 312 R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 R v Gill and Henry (1818) 2 B & Ad 204, 205; 106 ER 341 R v Kurtic (1996) 85 A Crim R 57 R v Llewellyn-Jones (1966) 51 Cr App R 4 R v Macdonald, Edward Obeid, Moses Obeid (No 15) [2020] NSWSC 1949 R v O'Brien (1974) 59 Cr App R 222 R v O'Donoghue (1988) 34 A Crim R 397 R v Speechley [2005] 2 Cr App R (S) 75; [2004] EWCA Crim 3067 Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19 Romeyko v Samuels (1972) 2 SASR 529 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25 Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The King and the Attorney-General (Cth) v The Associated Northern Collieries (1911) 14 CLR 387 The King v Boston (1923) 33 CLR 386; [1923] HCA 59 The King v Kidman (1915) 20 CLR 425; [1915] HCA 58 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 The Queen v LK (2010) 241 CLR 177; [2010] HCA 17 The Queen v Quach (2010) 27 VR 310; [2010] VSCA 106 The Queen v Rogerson (1992) 174 CLR 268; [1992] HCA 25 Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 Trudgeon v R (1988) 39 A Crim R 252 Waterways Authority v Fitzgibbon(2005) 79 ALJR 1816; [2005] HCA 57 Western Australia v Marchesi (2005) 30 WAR 359; [2005] WASCA 133 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Texts Cited: Australian Law Reform Commission, Interim Report on Evidence, No 26 (AGPS, 1985) Vol 1; Vol 2, Draft Bill de Smith Woolf & Jowell, Judicial Review of Administrative Action, 5th ed (1995) Review of Commonwealth Criminal Law, Interim Report: Principles of Criminal Responsibility and Other Matters, (July 1990) Russell on Crimes 7th ed, Vol 1 Category: Principal judgment Parties: Ian Michael Macdonald (First Appellant) Edward Moses Obeid (Second Appellant) Moses Edward Obeid (Third Appellant) The Crown (Respondent) Representation: Counsel: C Parkin (First Appellant) A Francis (Second Appellant) B Walker SC / M Kalyk (Third Appellant) D Staehli SC / E Nicholson / N Wootton (Respondent)

[2]

Solicitors: HWL Ebsworth (First Appellant) M Bowe (Second Appellant) Murphy's Lawyers (Third Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/212910; 2015/214251; 2015/212851 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Crime Citation: [2021] NSWSC 858 Date of Decision: 19 July 2021 Before: Fullerton J File Number(s): 2015/212910; 2015/214251; 2015/212851

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] In 2020, the appellants, Ian Michael Macdonald, Edward Moses Obeid and Moses Edward Obeid were charged with conspiracy to commit misconduct in public office. The prosecution alleged that the appellants agreed, no later than 9 May 2008, that Mr Macdonald, in his capacity as Minister for Mineral Resources, would take steps in connection with the grant of an exploration licence with respect to a coal reserve believed to exist under a property owned by the Obeid family at Mount Penny in the Bylong Valley for the improper purpose of advantaging the Obeids, their family and associates. The agreement envisaged that Mr Macdonald would wilfully breach his Ministerial duties and obligations of confidentiality and impartiality. The trial before Fullerton J, sitting without a jury, commenced in February 2020, with final submissions in February 2021 and a verdict delivered on 19 July 2021. The prosecution case proceeded on the basis that Mr Macdonald committed eight acts of misconduct in carrying out the agreement. The appellants were convicted and each was sentenced to a term of imprisonment. There are three appeals, each appellant challenging his conviction. The grounds of appeal included five grounds (with several subgrounds) common to all three appellants and some additional individual grounds. The issues on appeal fell into three broad categories: (1) Challenges to the indictment, including the elements of the offence; (2) Assertions that the verdicts were unreasonable or could not be supported having regard to the evidence; and (3) Miscellaneous assertions of legal error and factual errors. The Court (Bell CJ, Basten AJA and Button J) held, dismissing the three appeals: As to ground 1(1) - no agreement to do a particular unlawful act (1) Absence of agreement as to specific acts to be undertaken was not fatal to the existence of a conspiracy; so long as an unlawful purpose was sufficiently identified, the precise means by which it was to be effected need not be known or agreed upon. The context, providing a process by which steps were to be taken to seek expressions of interest, assess applicants and grant exploration licences, identified with sufficient precision the nature of the conduct that was the subject of the agreement between the parties: [23], [39]. Gerakiteys v The Queen (1984) 153 CLR 317; Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7; R v Gill and Henry (1818) 2 B & Ad 204; 106 ER 341, applied As to ground 1(2) - requirement of act by Obeids (2) A conspiracy may involve the recipient of favours not being actively involved through his or her own unlawful conduct; there is no requirement that each party to the conspiracy agree to be responsible for some unlawful overt act in carrying out the agreement: [42], [43], [47]. R v LK (2010) 241 CLR 177; [2010] HCA 17, distinguished (3) Nor was it necessary to establish a motive for Mr Macdonald, namely that he would benefit from his participation: [53]. As to ground 1(3) - no misconduct 'but for' agreed improper purpose (4) There did not need to be an agreement that Mr Macdonald would not have taken the unlawful steps he took "but for" the agreement. The elements of the offence are not expressed in the language of causation. It was the creation of a conflict between self-interest and public duty that constituted the element of misconduct and in circumstances where that conflict is perceived, the relevance of a causative element was expressly denied in Boston: [61]-[62]. HKSAR v Hui Rafael Junior (2017) 20 HKCFAR 264, The Queen v Boston (1923) 33 CLR 386; [1923] HCA 59, applied; Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 distinguished As to ground 1(5) - no agreement that conduct serious and meriting criminal punishment (5) It was not necessary either that Mr Macdonald believe his conduct to involve a particular level of moral culpability, or that the conspirators agree that his conduct would involve that level of moral culpability: [81].

[4]

As to ground 3 - absence of Shepherd direction (6) Each element of an offence and every fact which is a link in a chain necessary to establish an element of an offence and is therefore an indispensable step to conviction must be established beyond reasonable doubt; a jury must be so directed. However, there is no further direction required in all cases: [102]. The common knowledge which formed a substratum to the agreement, and was known to the participants, was that the Obeid family had an interest in land at Mount Penny. No special direction that Moses Obeid knew that Macdonald knew that fact was required: [104]. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 applied As to ground 4 - failure by prosecution to call evidence (7) The judge did not err in declining to give herself a direction that she could infer from the failure of the prosecutor to call particular witnesses, without a sufficient explanation, that the evidence they might have given would not have assisted the prosecution case: [115]. If the prosecution leaves gaps in the evidence, that may result in an acquittal; except to the extent necessary to achieve a fair trial, the prosecutor is not otherwise obliged to call persons who may possibly be able to give relevant evidence: [121]-[123]. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3; Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 applied As to ground 6 - admissions by co-accused (8) The representation of a co-conspirator may be used to support a finding of the existence of the common purpose, and is admissible to that end if it were open to the fact-finder to be satisfied that there is a common purpose. It is not necessary to prove the existence of a conspiracy before giving in evidence of the acts of the alleged conspirators: [149], [152]. Evidence Act 1995 (NSW), ss57(2), 87(1)(c) applied R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 applied As to ground 7 - use of inadmissible evidence (9) Five matters were relied on as unavailable to support a conclusion of involvement of Mr Obeid Snr in the conspiracy: none involved evidence not available for that purpose. And none was conclusive: the degree of reliance placed on each by the trial judge was open to her. As to ground 8 - admissions and consciousness of guilt (10) Having addressed the principles discussed in Edwards v The Queen in R v Macdonald (No 15) in terms which were not the subject of criticism on the appeal, and having identified which particular representations were capable of demonstrating consciousness of guilt, no further direction was required: at [196]-[197]. Each of the relevant factors was in fact applied: [205], [207]. Accordingly, the requirement to take the warning into account was met: [210]. Criminal Procedure Act 1986 (NSW), s 133(3) applied Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 applied As to ground 5(1) - conversation with Fitzhenry in early 2008 (11) It was open to the judge to find that a conversation took place prior to 9 May 2008, in which Mr Moses Obeid demonstrated excitement as to the prospect of an exploitable resource under Cherrydale: [232]-[233]. As to ground 5(2) - Minister's "strong suggestion" of small area "in the east" (12) The finding by the trial judge as to what Mr Macdonald said to Mr Mullard at a meeting with Mr Macdonald on 6 June 2008, based on the latter's evidence, was open and the criticisms of the finding lacked substance: [243]. As to ground 5(3) - whether Bylong area considered by DPI at May meeting (13) It was open to the judge to find that the Bylong Valley was not an area that officers in the Minister's department discussed with Monaro Mining NL in early May 2008. The competing evidence was identified and discussed by the judge; the suggestion that the finding was not open was without substance and should be rejected: [248], [253]. As to ground 5(4) - the fourth misconduct (the Wiles maps) (14) It was open to the trial judge to find that the Wiles Map 2 was shown to Mr Brook at a meeting on 7 July 2008 with Paul and Moses Obeid at the Wentworth Hotel. That finding depended on acceptance of the reliability of Gardner Brook's evidence and the absence of evidence that the map had been provided to the Obeids by anyone other than Mr Macdonald. Three complaints relating to the fact that Mr Brook had been shown the map at the ICAC hearings but was not shown the map in giving evidence, and gave a flawed description of the map, were addressed by the judge and provided no basis for concluding the judge's finding of fact was not open: [262], [268], [270]. As to ground 5(5) - warning as to unreliability of Mr Brook (15) The judge expressly addressed the appellants' claim that Mr Brook's evidence as to the map was tantamount to identification evidence and required a warning as to unreliability compliant with s 165 of the Evidence Act. Correctly noting that this was not "identification evidence" as defined in the Evidence Act, the trial judge nevertheless addressed the manifold criticisms of Mr Brook's evidence, applied the necessary degree of scepticism and detachment required by the warnings, and explained her process of reasoning: [291]. As to ground 5(6) - basis of finding as to Wiles Map 2 (16) The challenge to the judge's reliance on Mr Brook's unprompted reference to a "contiguous area" in describing the extent of the coal seam, on the basis that the judge misunderstood the evidence, did not show that her reliance on that evidence was not open: [301]. As to ground 5(7) -finding that eighth act of misconduct proved (17) The finding that Mr Macdonald caused a member of the Obeid family to be provided with a memorandum and map identifying proposed coal release areas dated 21 July 2008 was open on the evidence. The evidence of this matter was properly regarded in its historical context, and with specific regard to the evidence of Mr Brook. The evidence did not demonstrate that the conclusion that Mr Brook did not receive the Wiles Map 2 from Monaro Mining was not open: [329], [337]. As to common ground (2) - legal principles (18) In considering a challenge to the reasonableness of a verdict under the first limb of s 6(1), the appeal court must undertake an "independent assessment of the evidence, both as to its sufficiency and its quality": [351]. Criminal Appeal Act 1912 (NSW), s 6(1) M v The Queen (1994) 181 CLR 487; [1994] HCA 63 applied (19) In circumstances where an appeal ground invokes the first limb of s 6(1), but on the basis of specific errors, if the errors are not made out, there is no obligation on the appeal court to review the whole of the judgment to determine whether it entertains a reasonable doubt: [368]. Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, referred to (20) Ground 2 in the present case was not expressly articulated by reference to specific errors of fact, but ground 5 was. As to ground 5, the appellants were required to demonstrate that the findings were not reasonably open; considering ground 2, the question was whether the Court entertained a reasonable doubt as to the ultimate finding of guilt, or as to a step essential to that finding, which doubt was not assuaged upon having regard to the advantage of the trial judge having seen and heard the evidence at trial: [372]-[374]. Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, applied (21) In a circumstantial case, to establish that particular findings leave open a reasonable hypothesis consistent with innocence (and thus permit a reasonable doubt as to the verdict), the Court must be satisfied that having regard to all of the circumstantial evidence, the doubt remains: [378]. (22) Rejection of a challenge to specific findings on the basis that the findings were open to the trial judge may not preclude the formation of a reasonable doubt as to the outcome: [378]. As to common ground (2) - whether verdicts unreasonable (23) Having engaged in an assessment of the whole of the evidence, the court was satisfied that the indispensable elements were established beyond reasonable doubt. The Court was of the view that the prosecution had proved beyond reasonable doubt the existence of a conspiracy as alleged in the indictment, and that each of the co-accused were participants in it at the time at which it was formulated, namely prior to 9 May 2008: [559]-[560]. INDEX TO JUDGMENT PART A INTRODUCTION The indictment and elements of the offence [10] Brief factual overview Terms of indictment [13] Particulars - acts of misconduct [14] PART B SPECIFIC GROUNDS Common ground 1 [20] Ground 1(1) - no agreement to do particular unlawful act Nature of challenge [22] Process for granting exploration licences [32] Coal resources in Bylong Valley [37] Conclusions - ground 1(1) [38] Ground 1(2) - no act required of Obeids Nature of challenge [40] Authorities [44] Ground 1(3) - no agreement Macdonald would not act "but for" improper purpose [55] Ground 1(4) - conduct not "in connection with" granting of exploration licence at Mount Penny [71] Ground 1(5) - no agreement that conduct serious and meriting criminal punishment [77] Ground 1(6) - duties of impartiality "and/or" confidentiality The pleading point [82] Material not confidential [86] Conclusions: Ground 1 [98] Common ground 3 - absence of Shepherd direction [99] Common ground 4 - failure by prosecution to call evidence [106] Specific grounds - Edward Obeid Identifying further grounds [131] Ground 6 - admissions by co-accused [135] Legal principles [139] Failure to explain deployment at trial [155] Ground 7 - use of inadmissible evidence [173] Ground 8 - admissions and consciousness of guilt [195] Common ground 5 - critical findings of fact [211] Ground 5(1) - conversation with Fitzhenry in early 2008 [214]

[5]

Ground 5(2) - Minister's "strong suggestion" of small area "in the east" [234] Ground 5(3) - whether Bylong area considered by DPI at May meeting [244] Ground 5(4) - the fourth misconduct (the Wiles Maps) [254] Ground 5(5) - warning as to unreliability of Mr Brook [273] Ruling of trial judge [284] Conclusions at to warnings [289] Ground 5(6) - basis of finding as to Wiles Map 2 [292] The possibility of a second map [303] Absence of evidence on question of maps [312] Ground 5(7) - finding that eighth act of misconduct proved [314] PART C UNREASONABLE VERDICTS Common ground 2 - unreasonable verdicts [341] Applicable legal principles [348] Criminal Appeal Act, s 6(1), first limb [350] Trial without a jury [353] Unreasonable verdict challenge in a judge alone trial [360] Key challenges [377] (1) Reasoning of trial judge [379] (2) Existence of agreement before 9 May 2008 [385] (3) Events of 9 and 14 May 2008 [390] (4) Period 26 May - 16 June 2008 [406] (5) Period 17 June - 30 June 2008 [427] (6) Period 1 July 2008 - 14 July 2008 [439] (7) Seventh act of misconduct - list of companies [489] (8) Eighth act of misconduct - coal allocation areas [506] Other matters Other particulars [527] Distancing Obeid name from coal activities [544] Statements to journalists [553] Ground 2 - Conclusions [559] PART D ORDERS [561]

[6]

PART A INTRODUCTION

THE COURT: Following a series of interlocutory rulings in 2019, the appellants, Ian Michael Macdonald, Edward Moses Obeid and Moses Edward Obeid, stood trial before Fullerton J on a single count of conspiring together that Mr Macdonald would wilfully misconduct himself in public office, namely as Minister for Mineral Resources. (The precise terms of the charge will be considered shortly.) The trial, commencing in February 2020, proceeded over 77 days before the judge sitting without a jury, with final submissions in February 2021.
On 19 July 2021, the judge delivered her verdict and reasons, finding each of the appellants guilty. [1] In a further judgment delivered on 21 October 2021, Fullerton J sentenced each of the appellants to a term of imprisonment.
Each appellant has filed a notice of appeal in relation to his conviction; Mr Macdonald, who was sentenced to imprisonment for nine years and six months, with a non-parole period of five years and three months, has sought leave to appeal the severity of his sentence. At the time of the hearing of the appeal, each of the appellants remained in custody serving a non-parole period which had commenced on the date of sentencing.
The nature of the conspiracy was unusual in that it alleged an agreement between the three persons charged that one person, namely Mr Macdonald, should conduct himself in a manner which constituted the underlying offence (described in submissions as the predicate offence) of wilfully misconducting himself in public office. Members of the Obeid family were said to be the beneficiaries of Mr Macdonald's misconduct. The prosecutor did not particularise any acts of either Edward Obeid (Mr Obeid Snr) or Mr Moses Obeid in furtherance of the conspiracy.
The factual circumstances of the matter were complex, as were the grounds of appeal. Many grounds were common to all three appellants, but some had additional grounds. It will be convenient to deal with the facts as necessary to engage with the particular grounds of appeal and submissions. The grounds may conveniently be divided into three categories, namely: 1. Challenges to the indictment, including the elements of the offence; 2. Assertions by each appellant that the verdict against him was unreasonable or could not be supported having regard to the evidence, under the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW); and 3. Miscellaneous challenges to the fact finding and specific allegations of legal error on the part of the trial judge.

[7]

Brief factual overview

There were two critical factors which underlay the prosecution of the appellants. The first was that on 27 September 2007 a company associated with the Obeid family, Locaway Pty Ltd, entered into a contract to purchase a property known as Cherrydale Park to the west of Mount Penny at Bylong, which is north of the Hunter Valley. Locaway was a trustee for the Moona Plains Family Trust, the beneficiaries of which were members of the Obeid family. The directors of Locaway were Paul Obeid and Damian Obeid, sons of Mr Obeid Snr. Settlement occurred on 15 November 2007. The location of Cherrydale Park may be seen on the map which is annexure A to these reasons.
The second material fact is that the Department of Mineral Resources had identified a coal seam which followed the general direction of the Bylong Valley, between the towns of Bylong in the east and Wollar in the west. The coal area is also marked on the map which is annexure A to these reasons. The area was described as being in the shape of a sideways S with the eastern (north-south) section lying under three properties of which the most southerly was Cherrydale Park. Directly to the north of Cherrydale Park was a second property, Donola, and to the north of that a third property, Coggan Creek. A short distance to the east of Donola was the Mount Penny trig point, which gave the area its name, variously described as north Bylong-Mount Penny and the Mount Penny area.
At the time the Obeid family purchased Cherrydale Park it was used as fertile grazing land and had an attractive house and surrounding gardens. At that time, an area which included the three properties was the subject of an exploration licence (EL) granted under the Mining Act 1992 (NSW) known as EL6676, which was held by the Department of Primary Industries. There was, in late 2007, no intention on the part of the Department to release the area for private exploration because the extent and value of the coal resource had not been assessed. In broad terms, the charge was directed to steps taken by Mr Macdonald as Minister for Mineral Resources to release the area for exploration, with potential benefits for the Obeid family through their ownership of Cherrydale Park.

[8]

Terms of indictment

The trial proceeded on an indictment dated 11 February 2020 by which the Director of Public Prosecutions charged the appellants that: "Between about 1 September 2007 and about 31 January 2009 at Sydney and elsewhere in the State of New South Wales, each of the accused conspired together that Mr Macdonald would, in the course of or connected to his public office as Minister for Mineral Resources in the Executive Government of the State of New South Wales, wilfully misconduct himself, without reasonable cause or justification, by doing acts: (a) in connection with the granting of an exploration licence at Mount Penny in the State of New South Wales; and (b) concerning the interests of Edward Moses Obeid, and/or Moses Edward Obeid and/or their family members and/or associates; and (c) knowingly in breach of: (i) his duties and obligations of impartiality as a Minister in the Executive Government of the State of New South Wales; and/or (ii) his duties and obligations of confidentiality as a Minister in the Executive Government of the State of New South Wales, such misconduct being serious and meriting criminal punishment having regard to the responsibilities of the Office Mr Macdonald occupied as Minister for Mineral Resources and his responsibilities as the holder of that Office, the importance of the public objects which the Office and Officeholder serve and the nature and extent of the departure from those objects."

[9]

Particulars - acts of misconduct

The prosecution did not provide a statement of the acts which it was agreed Mr Macdonald would undertake: rather, it relied on establishing an agreement to undertake acts falling within the cumulative elements of the charge. (The primary legal challenge to the convictions on the appeal was directed to the alleged inadequacy of that course.) The prosecutor did, however, provide particulars, which were revised during the trial, of the acts said to have been undertaken by Mr Macdonald pursuant to, and in furtherance of, the agreement reached with Mr Obeid Snr and Mr Moses Obeid. The case ultimately addressed in closing submissions was particularised in a document dated 30 October 2020 and identified eight acts of misconduct alleged to have been committed by Mr Macdonald. As will be seen, the first act of misconduct was said to have occurred on or about 9 May 2008. For that to have occurred pursuant to and in furtherance of the agreement charged, that agreement must have been in place by 9 May 2008. The prosecution case proceeded on that basis.
The revised statement of particulars omitted what had been the third act of misconduct originally relied upon. The remaining particulars were not renumbered, and were as follows: "FIRST MISCONDUCT: On or about 9 May 2008, Mr Macdonald sought information, via his chief of staff Mr Jamie Gibson, from the Department of Primary Industries (DPI) as to the volume of coal reserves in the area of Mount Penny (in the Bylong Valley, New South Wales) (Mt Penny). He did so in breach of his duty of impartiality as he knew the Obeid family owned property in this location. SECOND MISCONDUCT: On or about 14 May 2008, Mr Macdonald sought further information, via his chief of staff Mr Jamie Gibson, from the Department of Primary Industries about coal reserves in the area of Mt Penny including whether it was possible for the DPI to open its holdings for tender. He did so in breach of his duty of impartiality as he knew the Obeid family owned property in this location. … FOURTH MISCONDUCT: In the period 9 May to 9 July 2008, Mr Macdonald caused Mr Edward Obeid, Mr Moses Obeid or another member of the Obeid family, to be provided with a copy of: (i) a map titled 'Mt Penny' area, prepared by Ms Leslie Wiles dated 9 May 2008 (Wiles Map 1); and (ii) a map titled 'North Bylong - Mt Penny Area' prepared by Ms Leslie Wiles dated 30 May 2008 (Wiles Map 2). He did so in breach of his duty of impartiality as he knew the Obeid family owned property in this location, and in breach of his duty of confidentiality as both maps were confidential. FIFTH MISCONDUCT: Between 4 and 16 June 2008, Mr Macdonald directed that the 'potential open cut area' depicted in Wiles Map 2 be reduced to a smaller area comprising the eastern portion only. He did so in breach of his duty of impartiality as he knew the Obeid family owned property in this location. SIXTH MISCONDUCT: Between 17 June and 23 July 2008, Macdonald communicated to Edward Obeid and/or Moses Obeid that the EOI process for Mt Penny was to commence at the end of July 2008. He did so in breach of his duty of impartiality, as he knew the Obeid family owned property in a location proposed to be included in the EOI (ie Mt Penny), and in breach of his duty of confidentiality as this information was confidential. SEVENTH MISCONDUCT: On or after 7 July 2008, Macdonald caused Edward Obeid, Moses Obeid or another member of the Obeid family, to be provided with: (i) a document titled 'Company EOI 2 July 2008' containing a list of companies proposed to be invited to participate in the EOI; or (ii) information as to the companies on that list. He did so in breach of his duty of impartiality, as he knew the Obeid family owned property in a location proposed to be included in the EOI (ie Mt Penny), and in breach of his duty of confidentiality as the list was confidential. EIGHTH MISCONDUCT: On or after 23 July 2008, Macdonald caused Edward Obeid, Moses Obeid or another member of the Obeid family, to be provided with: (i) the page [of a memorandum titled 'Coal allocation' dated 5 August 2008] with the heading 'MEDIUM COAL ALLOCATION AREAS'; and (ii) a map titled 'Proposed Coal Release Areas for EOIs' prepared by Fred Schiavo dated 21 July 2008 (Schiavo Map 3). He did so in breach of his duty of impartiality, as he knew the Obeid family owned property in a location proposed to be included in the EOI (ie Mt Penny), and in breach of his duty of confidentiality, as the information in this document was confidential. NINTH MISCONDUCT: Between 27 November 2008 and 13 January 2009, Macdonald communicated to Edward Obeid and/or Moses Obeid that the EOI process was to be (or was) reopened to allow the 'White Group' of companies (including Cascade Coal P/L) to apply. He did so in breach of his duty of impartiality, as he knew the Obeid family owned property in a location included in the EOI (ie Mt Penny), and in breach of his duty of confidentiality as this information was confidential."

[10]

Common ground 1

The structure of the cases run by the appellants on appeal was, as reflected in the written submissions, that Mr Moses Obeid presented the primary arguments on the five common grounds, with some supplementation by the other appellants, who also had separate grounds for which they took primary responsibility. Ground 1 in each notice of appeal was as follows: "1 The Trial Judge erred in finding that the conspiracy alleged was available at law or in the alternative misdirected herself as to an essential element to establish guilt for the conspiracy alleged." [3]
The ground itself was uninstructive as to the nature of the challenge. However, the written submissions identified six separate bases of challenge in the following terms: 1. No agreement to do any particular unlawful act; 2. No "agreement" to do any act alleged against Moses Obeid; 3. No agreement that Macdonald would not act "but for" the improper purpose; 4. Conduct not defined by the phrase "in connection with the granting of an exploration licence at Mount Penny"; 5. No agreement that conduct was serious and meriting criminal punishment; and 6. Error in referring to duties of impartiality "and/or" confidentiality.

[11]

Ground 1(1) - no agreement to do any particular unlawful act

[12]

Nature of challenge

The gravamen of the challenge under this sub-ground was threefold. First, the charge was said to be formulated at too high a level of generality to constitute a conspiracy at law. What was required was an agreement to do a particular act or acts. Secondly, an agreement that one conspirator would commit an offence, namely misconduct in public office, did not cure the problem: no particular act (or acts) was (or were) identified by the use of the phrase. Thirdly, where no particular act had been identified at the date of the agreement, it could not be said that there was a concluded agreement, as opposed to a common intention, expectation or discussion of possibilities. [4]
The principle that the formulation of an intention, albeit common between two persons, or the expectation of two persons that a particular course will be followed, or discussion of the possibility of taking a particular course will not, singularly or in combination, constitute an unlawful conspiracy. So much must be accepted; in the words of McHugh J in Peters v The Queen, [5] "there can be no conspiratorial agreement unless the accused and his or her co-conspirators also intend that the common design should be carried out". However, it is also true, as was accepted by the appellants, that an agreement to do an unlawful act or to do a lawful act by unlawful means, constitutes the actus reus of the conspiracy, although no overt acts have been undertaken at that time. [6] (Because the crime is one of agreement, the distinction between the mental element and the physical act is fraught, if not meaningless. [7] ) It is also common ground that a conspiracy, for example, to defraud an insurance company, may be complete although the precise means or method by which the conspiracy is to be effected is not known, nor agreed upon. [8]
Statements of principle in different language may be found in different cases, often determined by the particular facts under consideration and the nature of the substantive offence, the subject of the conspiracy. Further, there is no bright line to be drawn between an agreement to carry out unlawful acts or an unlawful purpose where the means or method by which the purpose will be carried out has not been identified, on the one hand, and an inchoate agreement on the other.
As the respondent submitted, the appellants failed adequately to address the terms of the indictment which did not leave the nature of the unlawful conduct at large, but identified it in a series of descriptive phrases. First, par (a) in the indictment described the acts in question as being undertaken "in connection with the granting of an exploration licence at Mount Penny". That consideration limited the scope of the particular acts by reference to a power of the Minister conferred by the Mining Act. There was an element of uncertainty as to the precise acts which would be required, but they would fall within the class reflected in the process required to be carried out for the granting of an exploration licence, which will be outlined below. The charge did not require that the actual acts in connection with granting the exploration licence were unlawful in the sense of not complying with the requirements of the Mining Act, other than the implied requirement of being done for a proper purpose.

[13]

Process for granting exploration licences

This exercise was undertaken by the trial judge in some detail. [9] The judge noted that the power to grant an exploration licence was conferred on the Minister for Mineral Resources by s 22 of the Mining Act. A skeleton of statutory requirements was set out in the Mining Act, with minor procedural matters found in Pt 3, Div 1 of the Mining Regulation 2003 (NSW). [10] The source of the requirements for ELs in Pt 3, Div 1 of the Mining Act included the following provisions: [11] 13 Applications (1) Any person may apply for an exploration licence. (2) An application for an exploration licence: (a) must specify the group or groups of minerals in respect of which it is made, and (b) must be lodged with a mining registrar, and (c) must be accompanied by the required particulars, and (d) must be accompanied by the appropriate lodgment fee. (3) The required particulars are as follows: (a) a description, prepared in the manner prescribed by the regulations, of the land over which the exploration licence is sought, (b) particulars of the financial resources available to the applicant, (c) particulars of the technical advice available to the applicant, (d) particulars of the program of work proposed to be carried out by the applicant on the land over which the exploration licence is sought, (e) particulars of the estimated amount of money that the applicant proposes to expend on prospecting. (4) An application that relates to land within a mineral allocation area may not be made, except with the consent of the Minister, in relation to any group of minerals that includes an allocated mineral. 14 Invitations for tenders (1) This section applies only in relation to allocated minerals in land within a mineral allocation area. (2) The Minister may, by notice published: (a) in a newspaper circulating generally throughout the State, and (b) in one or more newspapers circulating in the locality in which the land concerned is situated, invite tenders for an exploration licence for an allocated mineral. (3) An invitation: (a) must describe the land to which it relates, and (b) must identify the allocated mineral to which it relates, and (c) must specify the place at which, and the date on or before which, tenders for the exploration licence should be lodged. 15 Tenders (1) A tender for an exploration licence: (a) must be lodged with the Director-General in accordance with the invitation for the tender, and (b) must be accompanied by the required particulars, and (c) must be accompanied by the appropriate lodgment fee. (2) The required particulars are as follows: (a) particulars of the financial resources available to the tenderer, (b) particulars of the technical advice available to the tenderer, (c) particulars of the program of work proposed to be carried out by the tenderer on the land over which the exploration licence is sought, (d) particulars of the estimated amount of money that the tenderer proposes to expend on prospecting. (3) A tender may specify that, in the event that the tender is successful, the tenderer will pay a specified amount in addition to the cash reserve price (if any) specified in the invitation for the tender. (4) A tender may be made in respect of the whole or any part of the land described in the invitation for the tender. 16 Minister may require further information The Minister may require the applicant or tenderer to furnish further information in connection with the application or tender, including (if the applicant or tenderer is a corporation) information as to the extent to which the controlling power in the corporation's affairs is held by: (a) a foreign company within the meaning of the Corporations Act 2001 of the Commonwealth, or (b) a company registered under that Act that is taken for the purposes of that Act to be registered in a State or Territory other than New South Wales, or (c) an individual who is a resident of a foreign country. 17 Minister may exclude land from application or tender (1) The Minister may, by order in writing, direct that any part of the land to which an application or tender relates be excluded from the application or tender. (2) A direction takes effect on the date on which written notice of the direction is served on the applicant or tenderer. (3) A tenderer affected by any such direction may amend the tender by written notice lodged with the Director-General on or before such date as may be specified in the direction.

[14]

Coal resources in Bylong Valley

The judge also summarised the history of the assessment of coal resources in the Bylong Valley, which had been the subject of two studies undertaken by the Department. The second (later) study, known as the "Dwyer report", prepared in 2005, recommended that further exploration programs were required to assess the coal resources in the region. [15] What followed was the grant to the DPI of EL 6676 on 21 November 2006. The purpose was to allow the Department to undertake exploration activities to assist in determining whether the area could be released to public tender. As the judge noted, Mr Mullard gave evidence that, as of May 2008, there had been little by way of a drilling program in EL 6676. [16]

[15]

Conclusions - ground 1(1)

In a passage preceding the detailed discussion of the process, the judge concluded that there was a relevant connection between the steps taken prior to the EOI process and the process itself which demonstrated a relevant connection between those steps and the ultimate grant of the Mount Penny EL. [17]
The contextual material as to the process by which steps were taken to release land for expressions of interest, assess those expressions and finally grant an EL (if thought appropriate) provided a firm basis for concluding that the activities the subject of the pleaded agreement were sufficiently described to allow the parties to understand what was in contemplation. If it were assumed that each of the elements of the charge was established on the evidence, and it was established that those steps were taken for the pleaded purpose of benefiting the Obeid family interests, and putting to one side the other issues raised by the appellants, the charge would not be invalid on the basis that it did not identify with sufficient precision the nature of the conduct, the subject of the agreement between the parties. Accordingly, the challenge to the validity of the indictment based on the first element in ground 1 should be rejected.

[16]

Nature of challenge

The second element of the challenge in common ground 1 was that only one person to the agreement was expected to do anything, namely Mr Macdonald. The written submissions for Mr Moses Obeid succinctly stated the issue in the following terms: [18] "While a criminal conspiracy may not need to adhere to the same requirements as a contract for the purpose of the civil law, the concept of an 'agreement' requires that there be mutual promises or actions on the part of the parties."
At one level, this statement appeared to deny its own premise, namely that this was not a form of agreement which required consideration in the contractual sense. From a practical perspective, the proposition might mean no more than that Mr Macdonald was unlikely to act in a way which rendered him liable to criminal prosecution if he were to obtain no benefit from it. However, as a matter of principle it is unclear why there can be no conspiracy in which one, or indeed more than one of the conspirators, take no unlawful step except to be the recipients of favours for which they have not agreed to provide any benefit in return.
Further, it was not the case that the Obeids were not expected to take any step or do any act. The clear expectation was that they would coordinate with Mr Macdonald to take steps to obtain a benefit from the grant of the exploration licence, together with full knowledge of the process by which the grant would be achieved (as in fact happened). Whether or not those steps constituted criminal conduct was not the issue. If, for example, the act of a conspirator was to receive stolen money, he or she would commit the offence of dealing with the proceeds of crime. Whether such an offence would arise with respect to non-pecuniary benefits need not be addressed. Further, it was no part of the conspiracy, the subject of the charge, that Mr Macdonald obtained a benefit for his part in the arrangements. As will be seen in relation to issues considered below, there was evidence that the Obeids considered it either necessary or appropriate to distance themselves from the grant of the exploration licence by seeking to undertake dealings with the successful grantee through a corporate structure which did not readily reveal their involvement.
Again, apparently as a pragmatic consideration, Mr Moses Obeid drew attention to what he described as a difficulty the trial judge had in identifying any level of moral culpability on his part when it came to imposing a sentence. That matter can be put to one side. The sentence itself (which is not challenged) involved a significant period of imprisonment. The description of Mr Obeid's moral culpability may or may not be satisfactory; it does not, however, demonstrate that a conspiracy in which the recipient of favours is not actively involved in the substantive offending through his own unlawful conduct cannot be a valid charge of conspiracy.

[17]

Authorities

The substantive argument in support of this ground relied upon statements in cases of high authority, which undoubtedly articulate the elements of a conspiracy as involving agreement for unlawful acts by more than one person, and perhaps all conspirators. The question is, in this circumstance, whether those descriptions were intended as identifying an essential element of all conspiracies, or whether they were descriptive of the circumstances of the case before the court.
First, it should be acknowledged that the following passage in the third appellant's written submissions is a correct statement of the law. "152 To establish a common law conspiracy, there must be an agreement; it is not sufficient to establish merely that there is an intention that an unlawful act be committed: R v Rogerson … at 280-281. Nor is an intention that an unlawful act be committed established merely by knowledge of, or an expectation that, such an act will occur: Trudgeon at 256. Even a (mere) coincidence of two or more minds to effect this object or objects will not amount to a conspiracy: Murphy (1837) 8 Car & P 297 at 310-311; 173 ER 502 at 508; Cunningham (1978) 39 CCC (2d) 169 at 180-181."
None of those statements, however, addresses the present issue. For that purpose, the appellants relied upon the following passage in the reasons of French CJ in The Queen v LK: [19] "62. A concise enunciation of the elements of conspiracy was given by the Court of Queen's Bench in Mulcahy v The Queen in 1868 in answer to questions proposed by the Lord Chancellor in relation to a prosecution under the Crown and Government Security Act. Willes J, delivering the opinion of the judges, said: 'A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means.' The House of Lords concurred. Notwithstanding its statutory context, the statement of the common law in Mulcahy has been accepted and applied in this Court."
The thrust of the principle which French CJ was considering, and which was articulated in Mulcahy v The Queen [20] , was that it was "not sufficient that the accused had intended to agree to commit the offence" but he "had to have intended to put the common design, the commission of the offence, into effect". [21] By contrast, the suggestion in Mulcahy that the agreement involved consideration, "capable of being enforced, if lawful", was expressly (and correctly) disavowed by the appellants. Otherwise, there is no authority for the proposition that each party to the conspiracy must agree to be responsible for some unlawful overt act in carrying out the agreement.

[18]

Ground 1(3) - no agreement that Macdonald would not act "but for" the improper purpose

The third element of ground 1 was encapsulated in the following written submission: [28] "The alleged conspiracy could not amount to a conspiracy in law because the Crown did not allege that the parties agreed that Macdonald would conduct himself in the sense that he would not have done the acts the subject of the agreement 'but for' an identified improper purpose…."
The basic submission was that "[i]t is a necessary component of the concept of 'wilful misconduct' that Macdonald would not have exercised the power but for the illegitimate purpose". [29] The only authority for that proposition was a reference to Maitland v R; Macdonald v R [30] ("Maitland"). Maitland did not involve a charge of conspiracy but a charge of the underlying offence in the present conspiracy, namely wilful misconduct in public office. The facts involved the grant of an exploration licence by the Minister to a company known as Doyles Creek Mining Pty Ltd with the intention of benefitting Mr Maitland, a chairman and a shareholder of the company. The Court concluded that the rationale for the offence was "to prevent public officers (in the case of misfeasance) from exercising their power in a corrupt and partial manner". [31] From that it was inferred: "72 Having regard to the rationale for the offence, it would be surprising if it was necessary for the improper purpose to be the sole purpose. If, for example, a Minister of the Crown embarked upon a transaction for the purpose of conferring a benefit on himself or his friends, it would not seem to matter that he also has a belief that the transaction would or might benefit some members of the public. In these circumstances, if the transaction in question would not have been undertaken but for the improper purpose, then subject to the other elements being made out, the offence, in our opinion, would have been committed."
The precise terms of the complaint are of some importance. The appellants said that the prosecutor had accepted that she must establish that Mr Macdonald would not have committed the acts of misconduct but for an improper purpose, but they alleged a further requirement, namely that the conspirators agree that he would not have done the acts but for the improper purpose. In the alternative, the appellants submitted that the trial judge had misdirected herself as to this element of the offence.

[19]

Ground 1(4) - conduct not "in connection with" granting of exploration licence at Mount Penny

According to Mr Moses Obeid's written submissions, the argument in respect of this element of ground 1 had two aspects, the first of which was: [50] "The first aspect of it is that the words 'in connection with the granting of an exploration licence at Mount Penny' in the indictment were impermissibly vague, such that there cannot be a meeting of the minds in the sense of an agreement to commit an unlawful act."
The second aspect was, "that even if there could be a meeting of … minds as to an unlawful act alleged by that phrase, the case fails because the Crown did not allege that Ian Macdonald agreed to do any specific act". This second aspect is in substance a repetition of the first element of ground 1, namely the failure to allege a specific unlawful act to be undertaken pursuant to the agreement. It is not necessary to repeat the reasons for rejecting that complaint.
The first aspect apparently involves the same element, being the need for an agreement to commit "an unlawful act", alleging that criterion (a) was impermissibly vague for the purpose of identifying such an act.
The selective dissection of the charge is not apt to identify error. For the reasons already indicated, the limbs in paragraphs (a), (b) and (c) of the indictment, together with the chapeau and the final (fifth) element are to be read together. It is undoubtedly necessary that the alleged misconduct be related to some aspect of Mr Macdonald's public office. As has already been noted, the aspect in question was the specific power to grant exploration licences with respect to identified areas and specified mineral resources. The geographical reference to Mount Penny did not identify an area by metes and bounds, but was not required to do so. In the context of the disposition of exploration licences with respect to coal resources, the area was sufficiently defined. The use of the phrase "in connection with" was deliberate, in circumstances where there was no question of the exploration licence being granted to interests associated with either Mr Obeid Snr, Mr Moses Obeid, or other members of the Obeid family. As was stated in Obeid v R (2015) after referring to the elements of the offence of misconduct in public office identified by the Victorian Court of Appeal in Quach: [51] "It will be seen that the words 'or connected to' in the indictment adhere to the second element of the formulation in R v Quach."

[20]

Ground 1(5) - no agreement that conduct serious and meriting criminal punishment

This element of ground 1 did not deny the need for or the pleading of what has been identified as the fifth element of the offence of wilful misconduct. Rather it turned on the proposition that the fifth element was a matter for agreement between the parties in the case of a conspiracy. The respondent contended that the appellants' submissions were entirely correct in stating that a person charged with the conspiracy must have "actual knowledge of all the essential facts necessary to constitute the commission of the offence". The respondent continued: [52] "That is, the Crown must prove the accused knew and intended that Macdonald would wilfully misconduct himself in the manner alleged, motivated by an improper purpose, without reasonable excuse or justification. However, the question of whether that misconduct that the conspirators agree Macdonald would engage in, as a matter of characterisation, was serious and meriting criminal punishment, is left to the tribunal of fact. It is not a matter about which the conspirators must agree."
With respect, that submission should be accepted. It is consistent with the explanation for the additional requirement (the fifth element) adopted by Mason NPJ in Shum Kwok Sher v HKSAR. [53] That approach is also consistent with Boston, where Knox CJ stated: [54] "It is settled law that an agreement or combination to do an act which tends to produce a public mischief amounts to a criminal conspiracy. In such a case the tendency of the agreement is a conclusion of law and there is no necessity for a finding by the jury of intent."
In Rogerson, Brennan and Toohey JJ reasoned to similar effect: [55] "To establish a conspiracy to pervert the course of justice, it is necessary to prove an agreement to do an act which the conspirators either know will have a manifest tendency to pervert the course of justice or which the conspirators intend to have such an effect. In this context, knowledge and intent relate to the acts and circumstances contemplated by the conspirators; the legal complexion of those acts and circumstances is a question of law."
It was also consistent with the statement of the common law by the Gibbs Committee Report, [56] set out with apparent approval in the joint reasons in The Queen v LK at [105]: "The mental element necessary to constitute the crime of conspiracy has been said to be the intention to do the unlawful act which was the subject of the agreement, but it seems more accurate to say that what is required is an intention to be a party to an agreement to do an unlawful act and that such an intention must involve also an intention to carry out the unlawful purpose. Such an intention on the part of the alleged conspirator is required notwithstanding that the agreement is to commit a crime which may be committed recklessly or a crime of strict liability. It is not necessary that the parties to the agreement should have known that what was agreed was unlawful. If on the facts known to them what they agreed to do was an unlawful act it is no excuse that they did not know that it was unlawful …." If the parties need not know that the agreed upon acts are unlawful, it must follow that they need not know or believe, let alone agree, that the acts were serious and meriting criminal punishment.

[21]

Ground 1(6) - duties of impartiality "and/or" confidentiality

[22]

The pleading point

The sixth element of common ground 1 differed from the earlier elements in that it did not allege that the indictment did not disclose an offence known to law. Rather, it focused on the aspect of the pleading in par (c) of the description of the acts, namely that Mr Macdonald would act knowingly in breach of his duties and obligations of "impartiality … and/or … confidentiality". The appellants submitted that the alternative form of the pleading allowed that there might only be a breach of a duty of confidentiality and that, in the circumstances of the case, no breach of a duty of confidentiality was established. Extensive written submissions analysed the various aspects of Mr Macdonald's conduct disclosed either in the particulars of misconduct or in the evidence in order to demonstrate that none involved a breach of the duty of confidentiality.
As the respondent submitted, this was not really a pleading point. As a matter of pleading, it was sufficient if the acts involved a breach of either duty as either could constitute wilful misconduct.
This was not a case of duplicity, nor was it submitted by the appellants to be such. It was, in the language used by Bray CJ in Romeyko v Samuels, [57] not a pleading of separate acts, but rather one act possessing one or more forbidden characteristics. In the latter case "there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics". [58]
Three of the particulars of misconduct (1, 2 and 5) alleged only a breach of the duty of impartiality; each of the others alleged a breach of both duties but would have been satisfied if either were established. It follows that there is no need in this context to address the factual circumstances of the various acts of misconduct alleged in order to determine whether there was a breach of a duty of confidentiality. The charge was formulated in permissible terms.

[23]

Material not confidential

As presented in the written submissions and in oral argument, the problem could be illustrated by an analogy. The analogy had apparently been used at the trial, though it was deployed in a more precise form on appeal. [59] The analogy asserted that there could be no conspiracy to commit a robbery with a dangerous weapon, where "dangerous weapon" was defined to include a firearm, but not a knife, if the parties agreed that the robbery would be committed with either a gun or a knife. [60]
On that approach, the indictment could be satisfied by establishing only breach of a duty of confidentiality. That duty was equated to the use of a knife (as the dangerous weapon in the analogy), not because there was no duty of confidentiality, but because none of the information supplied or shared by Mr Macdonald was "capable of being found to be in breach of any duty of confidentiality". [61] The assertion that the evidence presented at the trial was not capable of constituting confidential information was then explored over some 75 pages of written submissions: it was not elaborated upon orally. [62] The heavy burden of submitting that the material lacked the capacity to be confidential derived from the formulation of this submission in the context of ground 1. As senior counsel for Mr Moses Obeid submitted early in his oral argument: [63] "The whole purpose with respect of ground 1 is to allege that this is not an indictment that can support the conviction because it does not allege any acts to comprise the predicate offence …."
The submission may, however, be disposed of succinctly. First, there was no challenge to the reasoning of the trial judge with respect to the formulation of the duty. Secondly, there was significant evidence supporting a factual finding that the information which Mr Macdonald shared with members of the Obeid family was indeed confidential.
Before turning to that material, it should be noted that the bright line sought to be drawn between partiality and disclosure of confidential information involved no clear dichotomy. Partiality refers to the conferring of a favour or benefit on one person for improper reasons. However, what is provided or conferred may not necessarily be money or an available asset, but an opportunity to obtain money or an asset. In that case, the conferral of the opportunity may occur by the provision of information not generally available to others who might have an interest in seeking the benefit. In that situation, which applied to this case, the duties of impartiality and maintaining confidentiality in certain information are closely related and, indeed, interdependent.

[24]

Conclusions: Ground 1

With respect to ground 1, the matters raised involved issues of law, which had been raised at trial. There was an appeal as of right, no grant of leave being required. However, for the reasons set out above, ground 1 should be rejected.

[25]

Ground 3 - absence of Shepherd direction

At trial the prosecution accepted that it was an indispensable intermediate fact that Mr Macdonald knew that the Obeid family-owned property near Mount Penny. (It was true that that fact needed to be proved beyond reasonable doubt, but whether it was an "intermediate fact" or an essential element of the conspiracy as pleaded is open to doubt.) The appellants, however, pressed for a further finding and direction identified in Mr Moses Obeid's written submissions in the following terms: [67] "For the purposes of the present appeal, the appellant contends that a miscarriage of justice occurred by failing to give the direction sought by the appellant that it was an essential fact that Moses Obeid knew prior to 9 May 2008 when the conspiracy was said to have been formed that Macdonald knew the Obeid family owned property at Mount Penny. That is, it was an intermediate fact that was indispensable to guilt that Moses Obeid knew the "Shepherd fact" as it was referred to by the trial judge."
Ground 3 of the appeal asserted that the trial judge erred in failing to consider the request for, and failing to give, a Shepherd direction as sought by the appellant at trial. As with many labels, the phrase "a Shepherd direction" was embraced by some counsel with more enthusiasm than precision. Indeed, as Mr Walker SC ultimately accepted, the facts as to which directions were sought were better conceived as ultimate facts which were required to be proved beyond reasonable doubt and, even if described as "intermediate" facts, because they formed a necessary link in a chain of reasoning, they were also required to be proved beyond reasonable doubt. The appellants' case was primarily that the evidence did not provide a sufficient basis for the necessary inference.
The judgments in Shepherd v The Queen [68] are sometimes invoked as authority for principles which are an extrapolation of the reasoning. Special leave was granted in Shepherd in order to clarify aspects of the reasoning in the earlier decision of Chamberlain v The Queen (No 2). [69] In substance, the misapprehension raised by Chamberlain was that a jury should be directed, in any case based on circumstantial evidence, that it must be satisfied of all the facts beyond reasonable doubt, before they could be relied upon to support a guilty verdict. In Shepherd, Dawson J (with the agreement of Mason CJ, Toohey J and Gaudron J) noted that a case based on circumstantial evidence may involve some intermediate factual conclusions falling between findings of primary fact and an ultimate inference of guilt. Dawson J continued: [70] "For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed. On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable, it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence … - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence."

[26]

Ground 4 - failure by prosecution to call evidence

There was a degree of ambiguity as to the terms of ground 4. In Mr Moses Obeid's written submissions, the ground was stated as involving a failure by the trial judge "to consider whether the Crown's failure to call important evidence meant that her Honour should have entertained a reasonable doubt about whether the Crown had established the case". [71] As appeared from the next paragraph in the submissions, the reference to a failure to "call important evidence" was intended to identify a failure to call "a witness who might have been expected to be called and to give evidence on a matter". [72] Reliance was placed on statements in the High Court in RPS v The Queen [73] and Mahmood v State of Western Australia. [74] So expressed, the ground appeared to invoke the third limb of s 6(1) of the Criminal Appeal Act, that "on any other ground whatsoever there was a miscarriage of justice".
The written submissions identified the approach of the trial judge as encapsulated in the following paragraph of the judgment: "2030 Having already found the existence of the conspiracy and the participation in it of each of the accused proved beyond reasonable doubt and having regard to all of the evidence which was probative of those facts, it is clear beyond question, to my mind, that none of the witnesses in respect of whom a Jones v Dunkel direction was sought could have given evidence which was capable of raising a reasonable doubt about the guilt of the accused."
As to that conclusion, the submissions stated that the reasoning was "speculative, circular and contrary to authority". It was submitted that the "relevant question is to be asked prior to drawing the ultimate inference; it is not a question to be asked, and has no utility if asked, after having found guilt established". Finally, it was submitted that: [75] "There is also no basis to infer that the witnesses not called were not capable of giving evidence which was capable of raising a reasonable doubt."
There are a number of difficulties underlying these submissions. The first is that the trial judge addressed the issue by reference to submissions from the appellants that she give herself a Jones v Dunkel [76] direction in relation to various witnesses. The judge noted that counsel for Mr Macdonald had sought such a direction with respect to Craig Munnings, who was Mr Macdonald's departmental liaison officer. Further, counsel for Mr Moses Obeid had sought such directions in relation to 17 categories of witnesses, including members of the Obeid family and their associates and their chartered accountant. [77]

[27]

Identifying further grounds

Ground 2, as articulated in the grounds of appeal filed for Mr Obeid Snr, involved two limbs. The second, par (b), was a reflection of common ground 5, noting that the verdict was unreasonable or unable to be supported by the evidence. However, the first limb, par (a) was in the following terms: "The trial judge erred in law in failing as an aspect of her duty to give reasons and to address central factual matters in contest why such reasonable hypotheses consistent with innocence advanced on behalf of the appellant has [sic] been excluded."
The written submissions identified the hypotheses as including: [85] "(a) that any communication between the parties about coal and plans for the relevant area was, as at 9 May 2008, preliminary to a meeting of the minds in respect of conduct Macdonald might undertake concerning the grant, (b) given that Macdonald was simply making enquiries as to coal reserves in the area in early May this tended to suggest he could not have agreed by this time any means by which his supposed misconduct might be exercised in respect of "the grant", (c) an agreement which did not resolve that Macdonald would act partially raised a reasonable doubt as to the necessary mens rea, (d) the indeterminate nature of the agreement raised a reasonable doubt including as to the fifth element as at 9 May 2008 and, (e) because of the indeterminate character of the supposed "advantage" to the Obeids as at early May the possibility remained that it was insignificant measured against Macdonald's perception of the likely benefit of the people of NSW by doing acts in connection with the release of the area."
The written submissions alleged that these were "substantive and articulated arguments", but no detail was given as to where and in what terms they were articulated during the trial. In any event, they are best dealt with as particulars of the unreasonable verdict ground and will be considered in that context.
Grounds 6, 7 and 8 were identified as additional grounds and were the same additional grounds relied on by Mr Macdonald. Accordingly, they will be dealt with in turn by reference to the submissions of both appellants.

[28]

Ground 6 - admissions by co-accused

Ground 6, as formulated by Mr Obeid Snr, read as follows: "6 The trial judge erred in law in proceedings [sic] on the basis that section 87(1)(c) of the Evidence Act 1995 (NSW) deemed various 'representations' on the part of Appellant Macdonald and Appellant Moses Obeid to be 'admissions' on the part of the Appellant and in relying upon as much to provide the Appellant's guilt."
There are three elements to this ground, namely (i) identification of the representations, (ii) the manner in which s 87(1)(c) of the Evidence Act was deployed and (iiii) the consequential findings.
The relevant representations of both Mr Macdonald and Mr Moses Obeid involved their conduct in taking steps in furtherance of the conspiracy, the subject of the charge. [86] If reliance on that material was legitimate as giving rise to implied representations by Mr Macdonald and Mr Moses Obeid which could be attributed as made with the authority of Mr Obeid Snr, and therefore as admissions by him, the detail of the representations can be considered in addressing the consequences of that approach.
The substance of the ground was directed to the alleged error on the part of the trial judge in her deployment of s 87(1)(c) of the Evidence Act as a basis for using the conduct of the two men as admissions by the third.

[29]

Legal principles

Before turning to the specific terms of s 87(1)(c) of the Evidence Act, it is convenient to identify the relevant legal principles.
First, evidence by A as to what was said by a party against his or her own interest is hearsay. The rule excluding hearsay evidence does not, however, apply to evidence of an admission: Evidence Act, s 81(1). However, generally, an admission by B as to what C may have done is not admissible against C. That rule is subject to an exception where B has authority to speak on behalf of C as to the matter, the subject of the admission. Under the general law, an analogous authority was presumed with respect to assertions made by one co-conspirator implicating another. That general law principle was explained in the judgment of the High Court in Ahern v The Queen. [87] The passage commenced with a statement by Isaacs J in the Coal-Vend Case: [88] "Two things must be carefully kept distinct, viz, the fact of combination, and acts done in pursuance of the combination. There is a tendency to confuse the two, because in many instances acts of individual defendants may be regarded as evidence of the first as well as of the second. But it is an error to say that acts of one defendant, however numerous, and however pointedly in furtherance of the prohibited purpose, are necessarily admissible as overt acts of offence against a co-defendant charged with conspiring with the first. They are not so admissible unless the two defendants are shown to be associated for that purpose, so as to make the purpose common to both. Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge."
In Ahern, the Court continued: "However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would excluded as hearsay or its equivalent were it not admissible upon some other basis. That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: …. [89] Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime."

[30]

Failure to explain deployment at trial

Whether in fact the judge failed to explain the basis upon which the conduct of Mr Macdonald and Mr Moses Obeid was relied upon to demonstrate the involvement of Mr Obeid Snr in the conspiracy requires reference to a number of passages in the judgment.
The submissions for Mr Obeid Snr noted that the issue of admissions had been agitated on a voir dire and rulings made in the course of the trial. [100] However, while that judgment referred in passing to s 87(1)(c) it was expressly noted that s 87(1)(c) was not relied upon by the prosecution in relation to alleged admissions by Edward and Moses Obeid in interviews conducted with journalists "three years after the conspiracy had been fully executed" so that the representations could not be said to be "in furtherance of the common purpose comprehended by the conspiracy during its currency". [101]
In the final judgment, the prosecution submissions as to the evidence relied upon to prove the participation of Mr Obeid Snr in the conspiracy was set out at [335]; particulars which were not relied upon in closing submissions were listed at [337]. It is not necessary for present purposes to identify each passage in the judge's reasons which set out evidence inculpating Mr Obeid Snr: that exercise has been/will be undertaken in considering ground 2. The judge returned to consider whether a conspiracy had been established beyond reasonable doubt at [1822]-[1881]. At [1879]-[1881] the judge expressed her satisfaction beyond reasonable doubt that the acts of misconduct committed by Mr Macdonald were committed in furtherance of the specific conspiracy alleged. She was also satisfied beyond reasonable doubt that the conspiracy was in existence when the first act of misconduct was committed by Mr Macdonald on 9 May 2008.
The judge then turned to the financial motives attributed by the prosecutor to Mr Obeid Snr and Mr Moses Obeid. That element, the judge observed, was of relevance in relation to the involvement in the conspiracy of the Obeids, rather than Mr Macdonald: at [1896]. However, before addressing that issue, the judge turned to consider evidence that both Mr Obeid Snr and Mr Moses Obeid "sought to conceal their participation in the conspiracy by taking steps to distance their family's ownership of Cherrydale Park, each of them making concerted efforts in achieving that objective in 2008 and 2009": at [1898]. That passage concluded with the following statement: "1950 I am also satisfied that the evidence establishes that the steps taken to change the ownership of Cherrydale Park were taken with the involvement of both Edward Obeid and Moses Obeid. Those steps are a source of evidence of their participation in the conspiracy alleged, as steps taken coordinate with the acquisition of the adjacent properties by their friends or associates."

[31]

Ground 7 - use of inadmissible evidence

Ground 7 as pleaded by Mr Obeid Snr and relied upon by Mr Macdonald had two limbs. However, the second limb was, in effect, a restatement of grounds 2 and 5 and was not pressed at the hearing of the appeal. Ground 7 as pressed, read as follows: "7 The trial judge erred in the conclusion that there was reasonable evidence of the appellant's participation in the conspiracy by - (a) relying upon evidence which was either not admitted for the purpose or not available for the use ascribed to it."
It should be observed that, if the analysis set out above of the nature of the case is correct, the judge did not rely upon the conduct discussed in relation to ground 6 as giving rise to any particular representation, but rather as conduct in furtherance of the conspiracy, and therefore as evidence of the existence of the conspiracy. Accordingly, insofar as ground 7, by using the phrase "reasonable evidence of the appellant's participation in the conspiracy", was directed to the question of admissibility, only s 57(2) was engaged, which expressly states that the court may use the evidence in determining whether the common purpose existed. However, the particular in (a) suggests that the challenge was not to admissibility, but rather to the conclusion reached by the trial judge as to Mr Obeid Snr's involvement in the conspiracy. The written submissions directed to the reasoning of the trial judge supported that understanding, as did the oral argument on the appeal. Accordingly, the submission that the judge made findings which were "not open" on the evidence had the same character as ground 5, to the extent that particular findings were identified, and as to ground 2, to the extent that the finding in issue was simply Mr Obeid Snr's involvement in the conspiracy, which was an ultimate fact in issue. Nevertheless, it is convenient to deal with the submissions made in support of ground 7.
The written submissions commenced with the proposition that there were "five facts or matters underpinning her Honour's conclusion of reasonable participation". [103] This should be understood as an assertion that there were five findings of fact which underpinned the ultimate conclusion that the appellant was a participant in the conspiracy. As it was not submitted that any particular matter or fact was essential to that conclusion, it was necessary for the appellant to establish that a fact was not open to the primary judge. The passage in issue involved 17 paragraphs of the judgment under the heading "Is Edward Obeid's participation in the conspiracy proved beyond reasonable doubt?", but not reaching a conclusion on that question until the further consideration (discussed under ground 6) which relied upon the nature of the conduct of the other conspirators as demonstrating beyond reasonable doubt that such conduct would not have occurred without the active participation of Mr Obeid Snr. It followed that none of the "five matters" identified in the written submissions were determinative of that outcome; further, each was expressed in guarded terms.

[32]

Ground 8 - admissions and consciousness of guilt

Ground 8 had two parts and read as follows: "8(a) The trial judge failed to direct herself as requested in respect of admissions relied upon to demonstrate a consciousness of guilt on appellant's part in accordance with Edwards v The Queen. (b) The trial judge failed to direct herself as requested in respect of admissions relied upon to demonstrate a consciousness of guilt on Moses' part in accordance with Edwards v The Queen." [109]
At the heart of the two limbs to ground 8 was the proposition that the trial judge was obliged, pursuant to s 133 of the Criminal Procedure Act 1986 (NSW) , to give herself a direction, which was to be recorded in the trial judgment, in accordance with the principles stated in Edwards v The Queen. [110] The principles, however, were referred to by the judge in R v Macdonald (No 15) in terms which were not the subject of criticism on the appeal. Thus, the judge stated: "40 It is an uncontroversial proposition that not all previous representations alleged by the Crown to be lies are capable, as a matter of law, of being relied upon by the Crown as a category or type of circumstantial evidence probative of guilt. 41 In Edwards v The Queen …, Deane, Dawson and Gaudron JJ made it clear that, ordinarily, a lie will affect only the credit of a witness, including an accused, and that it is only in 'limited circumstances' where the telling of a lie by an accused can amount to conduct which is 'inconsistent with innocence, and amount therefore to an implied admission of guilt': at 208. Their Honours said (at 209): 'But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realisation or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him.'"

[33]

Common ground 5 - critical findings of fact

Somewhat elliptically, ground 5 merely read: "5 The trial judge erred in making critical factual findings that were not open."
The written submissions of Mr Moses Obeid identified five specific factual errors under the following headings: "(1) Conversation with Fitzhenry in 'early 2008'; (2) Macdonald's 'strong suggestion' in relation to 'in the east'; (3) Report to Moses Obeid that the DPI was considering the Bylong Valley; (4) The fourth misconduct (the Wiles Maps); and (5) The eighth misconduct (Schiavo Map 3 / Medium Coal Allocation Document)."
The content of the factual errors is to be gleaned from the detailed written submissions.

[34]

Ground 5(1) - conversation with Fitzhenry in early 2008

In order to understand the issue raised under this subheading, it is necessary to recall that the trial judge was satisfied as to the facts alleged with respect to the first and second acts of misconduct. Those acts involved enquiries by Mr Macdonald as to the coal reserves in the area of Mount Penny in the Bylong Valley. Such enquiries were made with knowledge that the Obeid family-owned property in that location. Further, Mr Macdonald sought further information from the department as to whether it was possible to open the holdings for tender. The judge held, undoubtedly correctly, that those findings did not of themselves implicate Mr Macdonald or the Obeids in a conspiracy. As the judge noted, there would remain a reasonable hypothesis that Mr Macdonald had so conducted himself "as a favour to Edward Obeid, knowing his family-owned Cherrydale Park and they were keen to gather information about the potential coal reserves under their property and surrounds, or to gain some perceived political leverage or in the hope or expectation of a financial benefit if the Obeids were able to exploit the information". [117] Thus, in order to establish that such activities occurred pursuant to the unlawful conspiracy as pleaded, it was necessary for the prosecution to establish some conduct of the Obeids demonstrating knowledge of an action in reliance upon the pleaded agreement.
One aspect of the benefits which might flow from development of the coal reserves was an increase in the value of all three properties which lay above the identified reserves, being Cherrydale Park, Coggan Creek and Donola. The prosecution case was that armed with knowledge of the potential exploitation of coal in the area, the Obeids saw a significant benefit in the three properties being under control of their friends or associates, partly to benefit their friends or associates, but also to permit a joint approach to any prospective miner which would wish to purchase the properties. One of the proposed purchasers was the Fitzhenry family, who were neighbours of Moses Obeid and had close social ties with the Obeids.
There was no dispute that there were conversations between Peter Fitzhenry and his wife Nicole Fitzhenry and Moses Obeid in the course of which coal resources in the Bylong Valley were discussed. The critical issue for the purposes of the trial was when those discussions took place. If, as the judge found, they took place in early 2008, that is before 9 May 2008, they provided potentially strong evidence of the plans to exploit the coal resource being undertaken by the Obeids before the critical date by which the agreement, on the prosecution case, had to have been formed.

[35]

Ground 5(2) - Minister's "strong suggestion" of small area "in the east"

There was a challenge to the way in which the trial judge dealt with the evidence of Mr Mullard in relation to a meeting with Mr Macdonald on 6 June 2008. The evidence was dealt with in some detail in relation to ground 2, but a specific challenge was mounted under ground 5 in relation to the following finding: "1032 In those circumstances, and after giving full weight to Mr Mullard's position as a senior executive officer of the Department and his knowledge and expertise, I make the following factual findings: … (4) Upon the Minister accepting, through Mr Mullard, that the Department would not favour breaking up Ridgelands or Benelabri, the North Bylong/ Mount Penny potential open cut coal resources on Wiles Map 2 became the focus of those discussions in the course of which the Minister 'strongly suggested' the Department look at creating, or excising, a small coal release area from the sideways S-shape on Wiles Map 2 to the east."
This finding was made in the course of rejecting the prosecution's formulation of the fifth act of misconduct, to the extent that it had alleged that Mr Macdonald "directed" that the potential open cut area depicted in Wiles Map 2 be reduced to a smaller area comprising the eastern portion only. Thus, the evidence of strong suggestion was held not to satisfy the concept of direction. The present challenge, however, went to the aspect of the act which referred to the eastern portion, next to Mount Penny.
The submissions correctly noted that the finding reflected an earlier passage in the judgment in the following terms: "971 Mr Mullard did, however, accept the Minister may have said what was attributed to him in his 2014 statement about making 'a smaller area in the east' which the Minister referred to as 'the Mount Penny area' but that with the passage of time he has forgotten that was said. Mr Mullard ultimately volunteered that the Minister 'definitely' told him to 'make a smaller area' and that it was 'very likely' in the east. He did not, when giving that evidence, qualify the reference to the Minister 'telling' him to make a smaller area, in the sense of 'telling him' to see whether it was possible to do so, the resounding effect of his evidence both in his evidence in chief and under cross-examination by the accused. The Crown did not re-examine on this issue."

[36]

Ground 5(3) - whether Bylong area considered by DPI at May meeting

The third matter said to demonstrate error on the part of the trial judge related to a complex set of passages in the evidence as to discussions within the Department in May 2008 and whether they included the Bylong area. By "error" the appellants must be understood to be asserting that certain findings of fact were "not open" on the evidence. Whether that was indeed the intended inference to be drawn from the submissions with respect to this matter is unclear. Because the subject matter of the challenge was not crystallised with precision in any ground of appeal, it is necessary to set out what appears to be the heart of the complaint in the language used in the written submissions: "496 The Trial Judge erred in finding that the Bylong Valley was not an area discussed by the Department at a meeting with Monaro Mining in May 2008 ([1470]) and in making no finding as to any such information (whether accurate or not) being communicated to Moses Obeid in July 2008. The Trial Judge ought to have found that the area either was or may have been discussed as between the Department and Monaro or at least that such a fact or asserted fact was or may have been reported to Moses Obeid by Gardner Brook in July 2008. Such findings arise from the unchallenged evidence of Rampe, Maloney [sic] and Gardner Brook. 497 Such findings are of importance as they in themselves give rise to a reasonable doubt as to guilt. They would directly corroborate the account of Moses Obeid given to journalists that he learned from Monaro (via Gardner Brook) that the Department was considering releasing EL6676: Exhibit AV-2, p 6106. That Gardner Brook relayed such a fact or asserted fact in or around the time he first met with Monaro (15 July 2008: T1548.21 - 1549.50 and Exhibit A, p 1119) would provide an alternative source other than Macdonald (or even additional to Macdonald if information was being cobbled together from different sources) for why the Obeid brother's 'pulled the trigger' on proceeding to arrange for the purchase of the additional properties, Donola and Coggan Creek. The evidence of Rumore was that, despite having the option agreement for Coggan since 4 July 2008, and despite requesting permission to review the contract on 4 July 2008 (Exhibit A, p 1083), 14 July 2008 (Exhibit A, p 1115), 18 July 2008 (Exhibit A, p 1143 and Exhibit A, p 1153), 21 July 2008 (Exhibit A, p 1161), Rumore only received the 'go ahead' to progress his review of the contracts for Donola and Coggan Creek on 21 July 2008, being after Gardner Brook was introduced as a potential partner: Rumore XXN, Day 39, T2056.7-11. That is, after such a conversation about Monaro, the Department and the Bylong Valley would have taken place."

[37]

Ground 5(4) - the fourth misconduct (the Wiles Maps)

The fourth particularised act of misconduct related to the period between 8 May and 9 July 2008. It alleged that Mr Macdonald caused Mr Obeid Snr, Mr Moses Obeid, or another member of the Obeid family to be provided with a copy of the Wiles Maps No 1 and No 2. The first map was prepared by Ms Leslie Wiles and dated 9 May 2008; the second map was also prepared by her and dated 30 May 2008. The fourth matter raised under ground 5 was the finding by the trial judge that the fourth act of misconduct was established. The first passage in the judgment accepting that conclusion was the following: "1331 Having accepted as reliable Mr Brook's description of the larger map as containing the distinctive red cross-hatched sideways S-shape and, on that basis, having reasoned to the conclusion that it was in fact Wiles Map 2 which was produced at the second Wentworth Hotel meeting, I am able to make the further finding, as a matter of overwhelming inference, that it was Mr Macdonald who provided or caused to be provided Wiles Map 2 to Edward Obeid, Moses Obeid or another member of their family, there being, in my view, no evidence to support a finding that it was in Paul Obeid's possession from any other primary source."
The judge then embarked upon a consideration of the confidentiality attaching to the maps at the time they were provided by Mr Macdonald to a member of the Obeid family prior to a meeting in the Wentworth Hotel on 7 July 2008. Being unable to resolve that issue satisfactorily, the judge concluded that the provision of Wiles Map 2 involved a breach of duty of the Minister to act in a disinterested and impartial way. The judge determined: "1357 It is clear beyond question, in my view, that conduct contravenes Mr Macdonald's general obligation to exercise his Ministerial powers impartially and in the public interest, since by the provision of the map it is patent he was acting partially in order to advance the private interests of the Obeids and not in the public interest."
So far as the challenge to the finding of the trial judge was concerned with the production of maps by Mr Macdonald to a member of the Obeid family, the submissions commenced: "511 There was no dispute at the trial that, on or around 7 July 2008, at the Wentworth Hotel, Gardner Brook met with Paul Obeid, Moses Obeid, Gerard Obeid and Arlo Selby to discuss a potential mining transaction involving properties in the Bylong Valley. Nor was there any dispute that, at that meeting, Paul Obeid produced and discussed a number of maps. The dispute concerned the Crown's contention that one of the maps produced was an A3 version of Wiles Map 2."

[38]

Ground 5(5) - warning as to unreliability of Mr Brook

The nature of this challenge was somewhat confusingly identified in the appellant's submissions. Two propositions, however, were clear: the first was that there were real problems with the reliability of Mr Brook's evidence; the second was that the problems affected the reliability of his identification of the Wiles Map 2. The evidence as to the map was described as having been treated by the prosecutor as "tantamount to … identification evidence", so as to require a warning "compliant with s 165 of the Evidence Act". Although the submissions commenced with the proposition that it was "unclear to what extent the trial judge gave herself a warning in relation to Gardner Brook's evidence despite accepting that it was appropriate to do so (and in one respect stating that she had done so)" [141] at other points it appears to have been accepted that she did give herself a warning but the warning was inadequate as to "the extent of the risks involved with the evidence in question". [142]
The trial judge dealt with the evidence of Mr Brook in several passages and at some length. The reasoning commenced with a heading, "[t]he issue of Mr Brook's credibility on the question whether Wiles Map 2 was produced at the second Wentworth Hotel meeting and more generally". That discussion ran from [1318] to [1331]. The judge returned to the question of "Mr Brook's credibility and reliability" in a passage from [1767]-[1780]. In the intervening 400 paragraphs, there had been frequent references to Mr Brook's evidence and to contemporaneous documents, including memoranda and emails. There is no doubt that the judge understood the significance of Mr Brook's evidence, particularly in relation to the fourth and fifth acts of misconduct and also understood the strength of the challenges to his credibility and reliability. As the judge noted: "1318 As the only witness to give evidence of seeing Wiles Map 2 at any time earlier than the execution of the Locaway P/L search warrant in November 2011, and the only witness to give evidence of the use to which that map was put by Moses Obeid and his brothers at the second Wentworth Hotel meeting (inter alia to describe the proximity of the area they anticipated would be covered by the grant of an EL relative to the adjacent or contiguous area that they understood to contain a potentially more valuable coal resource) Mr Brook's evidence was critical to proof of the fourth act of misconduct. 1319 His evidence was also critical, but not essential, to proof of the seventh, eighth and ninth acts of misconduct. On the Crown case, he was the recipient of the confidential information the subject of each of those acts of misconduct (in each instance information he said was given to him by Moses Obeid). He also gave detailed evidence as to how the information the subject of the those acts of misconduct was deployed by him (as he claimed on Moses Obeid's behalf) in his dealings with Monaro Mining NL."

[39]

Ruling of trial judge

First, three factors should be noted regarding warnings to be given in relation to "unreliable evidence". Section 165(2) requires that a warning is to be given to a jury that evidence may be unreliable, to inform the jury of the matters that may cause it to be unreliable and warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it, if there is a jury and the party so requests. The obligation under s 165(2) is extended to a judge alone trial by s 133(3) of the Criminal Procedure Act. It is apparent from the written submissions filed for Mr Moses Obeid that such directions were sought. [148]
Nevertheless, the obligation to comply is not engaged if "there are good reasons for not doing so": s 165(3). Further, no particular form of words is required in giving warning or information: s 165(4). The judge recognised that, despite the submissions, s 165(1)(b) was not engaged: this was not "identification evidence" as defined in the Dictionary to the Evidence Act, which was why the judge referred to "a direction akin to a warning about the unreliability associated with identification evidence". While the matters set out in s 165(1) do not exclusively state the forms of unreliable evidence to which the section applies, evidence identifying an accused person has long been a special concern of the law of evidence.
That the judge was alert to the possible need for a warning is clear, not merely from the headings to the sections in the judgment identified above, but also from the content of the reasons. The judge had considered, at [1322] set out above, the request by defence counsel for a warning "under s 165 of the Evidence Act (in the manner provided for in s 133 of the Criminal Procedure Act where I am sitting without a jury)". In noting resistance to giving herself "a direction akin to a warning about the unreliability associated with identification evidence in s165(1)(b) of the Evidence Act (in this case the identification of an inanimate object)" being the Wiles Map 2, the judge noted the difficulties arising from both potential contamination and the willingness of Mr Brook to act against the Obeids. As that appeared to give rise to an "improved" memory of the second Wentworth Hotel meeting, the judge gave herself a warning (at [1327]) of the risks "that are attendant upon an investigator, even with the best intentions, suggesting to a prospective witness the information that person might provide". The judge further noted that the warning had special meaning in the case of a witness "who is either vulnerable to suggestion or inclined to take up a suggestion offered to them, whether in doing so they are motivated by a genuine desire to assist investigators or to ingratiate themselves with investigators". The judge also noted that although on one view Mr Brook might have been seen to be a co-conspirator, that case was not pursued by the prosecution and the judge noted that the accused did not seek a direction under s 165(1)(d) of the Evidence Act with respect to a witness "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding". [149]

[40]

Conclusions as to warnings

As has been discussed above, compliance with the obligation under s 133(3) of the Criminal Procedure Act may be established, not merely by the statement of a warning, but by passages in the reasons which demonstrate explicitly that such warnings were taken into account.
Criticism that a statement as to how issues of unreliability have been taken into account after reaching critical findings is to put the cart before the horse, should not be accepted. It is, of course, true that warnings must be stated to a jury, both in abstract terms and by reference to the specific evidence, all of which will precede consideration and determination by the jury. A judge giving a reasoned decision, however, may approach the matter in a different way. To describe the process in advance may attract criticism that the judge has undertaken a box ticking exercise; to explain a process of reasoning in reaching findings which have already been set out may attract criticism as justification after the event. Neither criticism is necessarily correct. As has already been noted, in seeking to address all relevant matters in an orderly fashion, the judge frequently adopted a sequential approach with pauses to summarise the stage reached and where the reasoning was about to go.
With respect to the unreliability of Mr Brook, the judge properly had regard to all the issues, addressed the manifold criticisms of Mr Brook's evidence, applied the necessary degree of scepticism and detachment required by the warnings, and explained the process of reasoning. Further, as noted above, the obligation under s 165(2) is qualified, allowing for (indeed, requiring) the exercise of discretion. Subject to consideration of the final criticisms of the judge's findings with respect to the fourth act of misconduct, sub-ground 5(5) must be rejected.

[41]

Ground 5(6) - basis of finding as to Wiles Map 2

Again, the nature of the ground was articulated only in the written submissions. Their focus was upon the finding in the following passage in the judgment: "1328 Having given myself that warning, what seems to me to be significant in determining the weight to be given to Mr Brook's evidence concerning the 'larger map' produced at the second Wentworth Hotel meeting, is his unprompted reference to the 'contiguous area' on the map when he was interviewed by Mr Fox, after the private hearing and before that issue was pursued by counsel assisting in the public hearing some months later. The evolution of that aspect of his evidence, without any prompting or suggestion from Mr Fox, in my view, goes some considerable distance in resolving the concerns I would otherwise have had about the way Mr Brook's evidence concerning Wiles Map 2 was gathered during the course of the investigation, including various promptings given both by the investigators and later by counsel assisting the Commissioner about that map and its distinctive features, and the impact of their promptings upon the reliability of Mr Brook's evidence at the trial concerning the map."
The submissions were two-fold. First, it was said that the trial judge "appeared to satisfy herself of the reliability of Gardner Brook's description of the map based on a single fact", namely the reference to the contiguous area referred to in the first sentence. Secondly, her reliance on that matter was said to be "objectively wrong and manifestly inconsistent with the Crown case".
Neither of these criticisms is easy to understand. The matter was dealt with in the course of oral submissions, with little by way of explication. Senior counsel for Mr Moses Obeid stated: [153] "It's contiguous in the sense of the mineral geology and contiguous in the sense that there's an artificial boundary which placed part of that resource adjacent to another part of the same resource geologically but across a boundary. Now … what is not available in the evidence is any reference as to how a reference to contiguous in the only sense that in mining would make plausible - would have a plausible application in this vicinity, where there were other pediments [sic] and they weren't necessary always wholly containing just one geological resource, was never explained as to how that enabled a satisfaction that Mr Gardner Brook … was able to, indirectly in that sense, identify Wiles 2."

[42]

The possibility of a second map

Because Mr Gardner Brook referred to the concept of a "contiguous area" with respect to "another map that was never produced in evidence" there was a "clear prospect of there being another map or alternatively that the Wiles Map was not obtained until sometime in 2009 in a way unrelated to Macdonald". [161]
As the appellants noted, the issue was not overlooked by the trial judge but was identified in the following passage: "1300 In cross-examination, Mr Brook gave evidence that the document which appears in Exhibit A as an attachment to the agreement with Cascade Coal P/L was not the map which was originally attached to the agreement. He recalled that the map originally attached to the agreement was in colour, that it contained 'red and yellow' shading, and that it showed 'the S on its side shape type area'. As submitted by Mr Neil in closing, the Crown did not produce that map. Neither did the Crown discount the reasonable possibility that it was that map that was shown to Mr Brook at the second Wentworth Hotel meeting."
The appellants asserted that the judge did not return to that issue. Nor, in noting the fact that it had been raised in the written submissions for Mr Moses Obeid did the judge indicate what its significance was. The paragraph in the submissions appeared under a heading "Wiles Map 2 not shown to Brook". A number of points were raised under that heading in support of the proposition that the prosecutor had not proved that Wiles Map 2 was shown to Mr Brook. The submission was in these terms: [162] "The Crown did not produce the map and did not produce any evidence that would establish that it was not this map that was shown to Brook at the second Wentworth meeting."
Both the cross-examination of Mr Brook on this topic and the submission were speculative and raised no significant basis for disputing Mr Brook's evidence as to the map he had seen at the second Wentworth Hotel meeting.
The document Mr Brook was shown was annexed to a letter to him dated 5 June 2009 from Cascade Coal and executed as an agreement by Mr McGuigan for Cascade Coal and Mr Brook for Buffalo Resources Pty Ltd. The text of the letter proposes a joint venture with respect to the Mount Penny coal release area and stated that: "In addition the JV will pursue the grant and issue of relevant Exploration Licences and Mining Approvals over the area contiguous to the Area and detailed on the attachment hereto currently known was EL 6676 or any portion thereof ('contiguous area')."

[43]

Absence of evidence on question of maps

The gravamen of this complaint was that Mr Paul Obeid, who was present at the second meeting at the Wentworth Hotel, was not called by the prosecutor. Further, Mr Gerard Obeid was not called, although the map had been found in Mr Paul Obeid's office in an envelope marked "to be collected Gerard Obeid". [164] Finally, the appellants noted that no evidence had been called from anyone from Cascade Coal with respect to identifying the map attached to the agreement in 2009, the subject of the last sub-ground. Emphasis was placed however, on the absence of Mr Paul Obeid "who had possession of the map shown to Gardner Brook (whatever map that was) and the version of Wiles Map 2 seized in his office in November 2011". The absence of these witnesses, and in particular Mr Paul Obeid, was used to challenge the finding that the judge was satisfied there was no reasonable possibility that the map was obtained by him from any other primary source than Mr Macdonald. [165]
This matter was the subject of consideration in relation to ground 3(4). No different issue arises with respect to this ground.

[44]

Ground 5(7) - finding that eighth act of misconduct proved

The eighth act, said to have occurred on or after 23 July 2008, alleged that Mr Macdonald caused a member of the Obeid family to be provided with a single page memorandum headed "Medium Coal Allocation Areas" and a map titled "Proposed Coal Release Areas for EOIs" prepared by Mr Fred Schiavo and dated 21 July 2008. [166]
The judge's discussion of this issue commenced when dealing with the sixth act of misconduct. The sixth act of misconduct involved a period of some 4-5 weeks prior to 23 July 2008 and an allegation that Mr Macdonald communicated to the Obeids that the EOI process for Mount Penny would commence at the end of July 2008. The judge rejected that particular on the basis that she was not satisfied that, consistently with the prosecution case, Mr Macdonald would have caused misleading information to be sent to either Mr Obeid Snr, or Mr Moses Obeid. The judge concluded that by 7 July 2008, Mr Macdonald was aware that "the EOI package for small and medium areas, including Mount Penny, would be prepared by 21 August 2008 and that Mount Penny would be released to EOI in November 2008". [167]
Significantly, however, the judge accepted that there was a meeting held at the Minister's office on 17 June 2008 attended by Mr Macdonald, Mr Gibson, Mr Mullard and Ms Romano. [168] Further: "1070 Mr Gibson gave evidence that 'Mount Penny' was discussed at this meeting as 'one of the areas' to be included in the EOI process for 'small to medium' coal release areas. He said Mr Macdonald indicated that he wanted the process for the release of these areas to be prepared 'as soon as possible'."
A map which had been prepared by Ms Moloney and sent as part of the Ministerial Briefing on the previous day (16 June) included a coal release area headed "Mount Penny" and described as an "estimated opencut resource of 100Mt". [169] This was the point at which the first mapping of what became EL 6766 was produced: "1063 It is not in dispute that by 16 June 2008, the potential open cut coal resource represented by the sideways S-shape on Wiles Map 2 had been reduced in size to create a small to medium coal release area in the east of the Bylong Valley. At least from the Department's perspective, it appears that Area 7 was 'created' as part of the process of Ms Moloney identifying further small to medium release areas for inclusion in the proposed EOI process at Mr Mullard's request in response to Mr Macdonald's 'strong suggestion' that the Department explore the possibility of excising a smaller area 'to the east' of the potential open cut coal resource in Wiles Map 2."

[45]

Common ground 2 - unreasonable verdicts

Common ground 2 was that "the verdicts were unreasonable or unable to be supported by the evidence". The written submissions for Mr Moses Obeid identified seven bases upon which he sought to invoke the unreasonable verdict limb of s 6(1). They were: 1. the trial judge's reasoning; 2. hypotheses consistent with innocence; 3. proving the alleged conspiracy prior to 9 May 2008; 4. Moses Obeid's participation in any conspiracy by 9 May 2008; 5. the backwards reasoning of the trial judge; 6. finding the first and second misconduct proved; 7. proving the Shepherd fact; 8. otherwise unable to establish the case.
Mr Macdonald's written submissions contained a similar list of seven "reasonable hypotheses" not excluded by the Crown, which were identified as: 1. no agreement of the kind alleged; 2. Mr Macdonald did not engage in the first and second acts of misconduct or engage in them pursuant to any conspiracy; 3. Mr Macdonald was not aware, by 9 May 2008, that the Obeids owned a property in the Bylong Valley near Mount Penny (ie the Shepherd fact was not established beyond reasonable doubt); 4. any conspiracy was entered into after 9 May 2008; 5. Mr Macdonald would have agreed to engage in the conduct notwithstanding the improper purposes or, alternatively, Mr Macdonald would have engaged in the conduct notwithstanding the improper purpose; 6. the alleged conspirators did not appreciate that Mr Macdonald would not have engaged in the conduct agreed but for an improper purpose; 7. the conduct agreed as part of the conspiratorial agreement was not serious and meriting criminal punishment.
Of these, (a), (b) and (d) each reflected submissions made by Mr Moses Obeid. That was acknowledged and his submissions adopted. [188]
Mr Obeid Snr's notice of appeal included a further sub-ground 2a: "The Trial Judge erred in law as an aspect of her duty to give reasons and to address central factual matters in contest [as to] why such reasonable hypotheses consistent with innocence advanced on behalf of the appellant has [sic] been excluded".
There appeared to be two limbs to this sub-ground, namely a failure to comply with s 133(2) of the Criminal Procedure Act, and, separately, a failure to address certain (unspecified) submissions. The written submissions for Mr Obeid Snr identified a failure to exclude hypotheses consistent with innocence, identifying the following hypotheses: [189] "(a) that any communication between the parties about coal and plans for the relevant area was, as at 9 May 2008, preliminary to a meeting of the minds in respect of conduct Macdonald might undertake concerning the grant; (b) given that Macdonald was simply making enquiries as to coal reserves in the area in early May this tended to suggest he could not have agreed by this time any means by which his supposed misconduct might be exercised in respect of 'the grant'; (c) an agreement which did not resolve that Macdonald would act partially raised a reasonable doubt as to the necessary mens [rea]; (d) the indeterminate nature of the agreement raised a reasonable doubt including as to the fifth element as at 9 May 2008; and (e) because of the indeterminate character of the supposed 'advantage' to the Obeids as at early May the possibility remained that it was insignificant measured against Macdonald's perception of the likely benefit to the people of NSW by doing acts in connection with the release of the area."

[46]

Unreasonable verdicts - Applicable legal principles

The relevant legal principles encompass two subjects. First, there is the correct approach of a court of criminal appeal dealing with a challenge to a verdict of guilty of an indictable offence under the first limb of s 6(1) of the Criminal Appeal Act, namely that the verdict "should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence". Secondly, there is the correct approach of a court of criminal appeal to factual challenges where the trial has been conducted by a judge alone who has given reasons setting out her findings of fact and reasoning process. By way of contrast, a trial by jury will usually allow little scope for challenges to the fact-finding process, other than a challenge to the verdict itself under the first limb of s 6(1), because the jury's reasoning is not transparent and it cannot be known what aspects of the evidence were rejected, what intermediate findings were made, and what inferences were drawn.
The established principle as to the unreasonable verdict ground is that the court should determine whether it entertains a reasonable doubt as to the guilt of the accused. As to a judge alone trial, the established principle is that the appeal is not an appeal by way of rehearing and thus turns on the evidence and law as applicable at the time of the trial.

[47]

Criminal Appeal Act, s 6(1), first limb

In considering the first area it is important to keep in mind the structure of s 6, which contains three limbs and a proviso: 6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. (2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5 (1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
As stated in M v The Queen, [190] a court of criminal appeal considering a challenge under the first limb of s 6(1) must undertake an "independent assessment of the evidence, both as to its sufficiency and its quality". [191] The direction in s 6(2) is subject to the power of the court to direct a new trial rather than enter an acquittal: 8 Power of court to grant new trial (1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.
Where the appeal court holds that a verdict is unreasonable, there will be few if any circumstances in which the proviso in s 6(1) could be engaged, or in which the possibility of a new trial will arise. In other cases, both issues may be live and may need to be addressed. The question is whether there may be such cases if factual challenges can arise under the third limb in s 6(1) (a miscarriage of justice on any other ground). If discrete factual challenges are available under that ground, both the proviso and the power to order a new trial may be engaged. Further, the parties drew no bright line between the challenges based on the unreasonableness of the verdicts (ground 2) and the consequences said to flow from success on the challenges to particular factual findings raised by common ground 5.

[48]

Trial without a jury

Turning to the second area, the obligations imposed on the trial judge undertaking a trial without a jury are set out in s 133 of the Criminal Procedure Act: 133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
There are three observations to be made in relation to the language used in s 133. First, although it is commonplace to refer to findings of fact, the term "finding" in s 133(1) is equated with the verdict of a jury. It must therefore refer to the ultimate finding of guilt or innocence, in the absence of any form of special verdict. This construction was accepted in the joint reasons in Fleming v The Queen [192] and reiterated in Filippou v The Queen. [193] However, somewhat unhelpfully, s 133(2) refers to "findings of fact" on which the judge relied, which must identify findings of primary or intermediate fact on which the judge relied for the ultimate "finding" which is equated to a verdict. The purpose of s 133(2) is not to give such findings of fact any particular status, but to require that the judge set out the findings of fact in a "judgment", meaning the reasons for judgment. [194]
Although there was no express challenge with respect to identified aspects of the adequacy of the judge's extensive reasons , in terms of their compliance with s 133, it is important to note the scope of the obligations imposed on a judge conducting a judge alone criminal trial, both under s 133 and under the general law.
Since January 2011, orders for trial by a judge alone and applications for such orders have been provided for in ss 132 and 132A respectively of the Criminal Procedure Act. Prior to that time, and since amendments in 1990, the equivalents of ss 132 and 133 of the Criminal Procedure Act were found in ss 32 and 33 of that Act. A number of issues concerning the operation of s 133 (then s 33) were settled by the High Court in Fleming. In relation to s 33(1), the court in Fleming observed, in relation to the phrase "on the question of the guilt" of the accused: "[25] … The sub-section also encompasses as findings 'on the question of the guilt of the accused' such matters as the steps by which s 23A of the Crimes Act is applied in cases of substantial impairment by abnormality of mind and s 23 is applied in cases of provocation, in each case to require a conviction of manslaughter rather than murder."

[49]

Unreasonable verdict challenge in judge alone trial

The High Court in Fleming referred to statements by Hunt CJ at CL both in R v Kurtic [195] and in R v O'Donoghue, [196] to the effect that the appeal under the Criminal Appeal Act was "not by way of rehearing" and that the court had no power "to substitute its own findings for those of the trial judge" and that to demonstrate error it was necessary to show that there was "no evidence to support a particular finding, or [that] the evidence is all one way, or [that] the judge has misdirected himself". [197] The last phrase may be taken to refer to a misdirection as to the facts, as a misdirection as to the law will fall within the second limb of s 6(1). [198]
Fleming involved a failure on the part of the trial judge to record, and it was inferred apply, a relevant and significant warning. At least in that circumstance, the Court considered it unhelpful to seek to discriminate between the nature of an appeal under the Criminal Appeal Act and the nature of an appeal "by way of rehearing". [199] Rather, the Court noted that the failure in question constituted an error of law and a miscarriage of justice for that reason. [200] However, importantly for present purposes, the Court stated: "26 Thirdly, the first limb of s 6(1), which deals with the unsatisfactory quality of 'the verdict of the jury', must now be seen through the prism of s 33(1). The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing, is that finding 'unreasonable' or one which 'cannot be supported'? It is unnecessary on this appeal to determine whether, in such cases under the first limb or in cases under the more broadly stated third limb, the appellate court will intervene … only where there was no evidence to support a particular finding, the evidence was all the one way or there has been a misdirection, leading to a miscarriage of justice." [Footnotes omitted.]
Addressing the requirement in M v The Queen that the court undertake an "independent assessment of the evidence, both as to its sufficiency and its quality", Filippou and Dansie set out the approach to be followed by the court where an accused has been convicted after a trial before a judge alone (with the consequence that the trial judge's reasons for the guilty verdict are before the appellate court).

[50]

Unreasonable verdicts - key challenges

Each of the appellants listed arguments in support of the submission that the verdicts were unreasonable. As has been noted, there was significant overlap between the lists and also overlap with the specific grounds which have already been dealt with including, particularly, the challenge to factual findings pursuant to ground 5.
The fact that this was a largely circumstantial case has two consequences, operating in different directions, for consideration of the unreasonable verdict grounds. First, to establish that particular findings leave open a reasonable hypothesis consistent with innocence (and thus permit a reasonable doubt) will not be a sufficient basis for setting aside a verdict unless the Court is satisfied that having regard to all of the circumstantial evidence, the doubt remains. On the other hand, rejection of a challenge to specific findings on the basis that the findings were open to the trial judge may not preclude the formation of a reasonable doubt as to the outcome. Thus, the rejection of the specific challenges, for example in ground 5, will not preclude the formation of a reasonable doubt as to the verdict. Accordingly, ground 2 requires a broad review of the evidence.

[51]

(1) Reasoning of trial judge

There were numerous passages in the submissions which purported to challenge the reasoning of the trial judge, but which diverted into challenges to particular findings. [215] The thrust of the submissions in relation to an unreasonable verdict ground was often difficult to discern. Thus, a failure to provide reasons may constitute a breach of s 133(2), and thus an error of law, by force of the exegesis in Fleming at [28], that it is not sufficient for the judge to record findings of fact as material to support the verdict, without exposing the process of reasoning by which those findings were reached. However, the present purpose was not to identify an error of law. Further, despite the breadth of the language in Fleming, it may be doubted that there was an obligation to give reasons which were not the reasons of the trial judge. Thus, as explained in a civil context, [216] the obligation to give reasons is limited to the actual reasons of the judge and does not encompass a theoretically available set of reasons which were not those in fact adopted. If there is a gap in the reasoning, it may demonstrate error of a different kind, rather than a failure to comply with an obligation to give reasons. It may, for example, demonstrate a misunderstanding as to the relevant principles to be applied, or the nature of the case presented by one party. However, as explained by Simpson AJA in Mohana v R, [217] a complaint of inadequate reasons or inadequate fact-finding, where coupled with an unreasonable verdict challenge which is determined by the Court, may lack utility.
In dealing with an unreasonable verdict ground, in a circumstantial case, the Court is not concerned with the adequacy of reasons, but rather whether the evidence supports the ultimate verdict. In considering the evidential support for the necessary findings, the appellants submitted that this Court was in almost as good a position as the trial judge, because there was limited reliance on oral testimony. However, that submission overstated the position of this Court. First, the Court does not have the benefit enjoyed by the trial judge of considering this matter over 77 days of hearing, with time for reflection between hearing days scattered over 12 months. Secondly, and in similar vein, it does not have the benefit of close attention to the documentary evidence over a similar period. Thirdly, although it is undoubtedly true that some witnesses were more significant than others, the trial judge heard from about 40 witnesses, some of whom gave evidence of considerable significance, including Mr Cherry, Mr Mullard, Mr Gibson, Mr Rumore, Mr Grigor, and Mr Brook. Further, there are real difficulties in deciding how an appellate court entertains a reasonable doubt following a 77-day trial with a transcript of over 3,000 pages, where the main exhibit, Ex A, alone exceeded 7,500 pages. It is clearly not possible for the appeal court to review the case as a whole, and to attempt the task is to risk conducting a rehearing on the papers. In Fox v Percy, [218] albeit an appeal from an appeal by way of rehearing, the High Court affirmed the long-recognised practical reasons for caution in re-assessing fact-finding by a trial judge. To recognise the practical issues is not to diminish the statutory right of a person convicted in a judge-alone trial to challenge the verdict on the ground that it is unreasonable or unsupportable on the evidence. Indeed, the opportunity may be greater where reasons have been provided than with an inscrutable jury verdict: the appellate court's focus on the evidence does not require it to disregard the judge's reasons, which may demonstrate that an apparent inadequacy in the evidence is not to be explained away.

[52]

(2) Existence of agreement by 9 May 2008 [226]

It was common ground, and perhaps not surprising, that there was no "direct" evidence of the formation of the unlawful conspiracy by reference to events preceding 9 May 2008. There were, however, circumstances which permitted an inference to be drawn as to the opportunity for the parties to have reached an agreement, the terms of which could not be known. This required evidence of communication and opportunities for communication in the relevant period and an opportunity for Mr Macdonald to become aware that his colleague, Mr Obeid Snr and members of his family-owned property in the Bylong Valley in the vicinity of Mount Penny. Further, it required knowledge on the part of the three appellants that there was a coal seam which extended under the property.
Dealing, however, with the substance of the case there was significant evidence of a close relationship between Mr Obeid Snr and Mr Macdonald at the time Cherrydale Park was purchased in September 2007. Negotiations with Mr Cherry had taken place in the first half of September and Mr Obeid Snr attended Mr Macdonald's wedding in Orange on 15 September 2007. There was evidence that arrangements to finalise a contract of sale were taking place at that time. Mr Macdonald and Mr Obeid Snr spoke on the evening of Sunday, 16 September and again on several days during the following week, and on the following Monday and Tuesday which were parliamentary sitting days. On 26 September 2007, Mr Badenoch, Mr Macdonald's chief of staff, made an enquiry about water licences at Cherrydale. The water licences formed a significant element of the contract of sale, as explained above, because there was an obligation on the purchaser to maintain the licences in their present terms while Mr Cherry held a security interest over the property. There was a reasonable inference that Mr Badenoch made the enquiry at the request of Mr Macdonald.
When asked in December 2012 by a journalist (Mr Shanahan) whether he had had any involvement or discussions with Mr Macdonald about the tender process (presumably the expressions of interest) Mr Obeid Snr stated: [227] "… We spent the summer of 2008 up on the farm and the rumours were rife about a mine for Bylong Valley by Anglo and when I went back to Parliament and its on record that I asked Ian if the Department has any knowledge of a mine being planned for Bylong by Anglo. Within six or seven days one of his staffers called on my office and said to me that there was no plans…"

[53]

(3) Events of 9 and 14 May 2008

The first and second acts of misconduct particularised by the prosecution alleged that on or about 9 May and again on 14 May 2008 Mr Macdonald sought information via his chief of staff, Mr Gibson, from the Department about coal reserves in the area of Mount Penny.
The evidence as to the asserted facts came from Mr Gibson, supported by a documentary record. The record started with a diary entry in Mr Macdonald's diary for a meeting with Mr Obeid Snr on Thursday, 8 May at 5.30pm in Parliament House.
Mr Gibson gave evidence that Mr Macdonald had said to him on the morning of 9 May, "can you get some more information on this area for me, please, Jamie? And I said, 'yes, I can'". [230] He was then asked to identify "this area" and said "the Mount Penny, North Bylong area". [231]
Mr Gibson said that he called Graham Hawkes in the Department directly. At 12.01pm, Mr Hawkes forwarded to Mr Gibson an email from Robert Larkings in the Department, which read: "There are significant coal resources in the area of Mount Penny in the Bylong Valley. We are unsure of the exact area of interest, however there are a number of coal titles in the area including exploration licence (EL) 6676, held by the Department of Primary Industries (shown by blue shading on the attached diagram) and Authorisation 287 held by Anglo Coal (shown by yellow shading)… The Department holds the EL so that it can carry out drilling and it is expected that this program will include some drilling in the vicinity of Mount Penny to further delineate the resource, which is expected to consist mainly of thermal coal. This exploration may identify an area suitable for tender."
The diagram attached to the email was a map entitled "Mount Penny area - map 1", and at the foot noted that it had been prepared on 9 May 2008 by Leslie Wiles (Wiles Map 1).
At 12.06pm on 9 May, Mr Gibson responded by email: "Hi Graham, map is great, can I just get the email details in brief form? I've got to fax it to the boss - I've bought us another hour. Thanks heaps."
At 12.57, Mr Hawkes responded noting "brief and diagram attached. Information approved by Brad Mullard, Director Coal and Petroleum Resources". The attached Ministerial Briefing from DPI-Mineral Resources and headed "Mount Penny - Bylong Valley" was in similar terms to the earlier email to Mr Gibson. Wiles Map 1 was attached.

[54]

(4) Period 26 May - 16 June 2008

Mr Macdonald was in China between 15 and 26 May 2008. Mr Macdonald had contact with Mr Obeid Snr at 5.17pm on the day of his return, 27 May 2008. There was a further telephone contact at 7.35am the following morning after which there were exchanges between Mr Obeid Snr and Mr Moses Obeid. Mr Obeid Snr met with Mr Macdonald at 11am on 28 May 2008.
A list of areas which might be released was prepared by Ms Moloney (on direction of Mr Mullard) in preparation for an expression of interest process. The areas to be identified were to be in the Western Coalfields. [236] She prepared a list and a diagrammatic representation of the areas covered. At the same or similar time, Ms Wiles was asked to look for "large tender areas". [237] Wiles Map 2, dated 30 May 2008, was prepared in response to that request and covered an area in the Bylong Valley from a mining lease known as Wilpinjong in the west to the Anglo Coal Authorisations in the east.
This material was included in a brief to the Minister for a meeting which was held on 3 June 2008. The attachment headed "North Bylong" (being Wiles Map 2) showed the sideways S snaking up the Bylong Valley and cross-hatched in pink or red. It was one of three larger exploration areas identified and was accompanied by a statement that the area "is expected to contain substantial opencut resources" but that "[f]urther exploration is required to define a potential tender area". [238]
Mr Macdonald met Mr Mullard at Parliament House on 4 June 2008. Mr Gibson attended the meeting. Mr Gibson gave evidence of the discussion at the meeting on 4 June. A relevant exchange in the course of his examination in chief was as follows: [239] "Q. My question is what, if anything, was discussed about the North Bylong area? A. Yes, Mr Macdonald requested a change to the boundary tenement the shape of. … Q. Can we, again imposing a direct speech framework on what Mr Macdonald said in the context of requesting a change to the shape of the boundary tenement of the North Bylong area? A. Mr Macdonald said, 'Brad, the North Bylong tenement boundary should be changed to something like this because it would be more reflective of the resources in that area'. Q. When you say 'something like this', what did he say or do? A. I believe there was a basic sketch or a basic outline that was provided or drawn, potentially on the map itself. Q. Drawn by who? A. Mr Macdonald. Q. When you say 'on the map itself', what map do you mean? A. On one of the maps that was provided to us by the department. … Q. In respect of the question just asked and your answer, are you talking about the maps - a map of North Bylong? A. Yes, the map that I can see here with the pink hatching."

[55]

(5) Period 17 June - 30 June 2008

On 19 June 2008, Ms Moloney sent to Mr Mullard a list of seven companies which had registered an interest in coal allocation in the western coalfield (and a further list of companies with current titles in the western coalfields). Ms Moloney gave evidence that she undertook that task at the request of Mr Mullard. [255] It was based on "companies registered on the coal register for small areas" or the areas identified in the earlier document prepared for the Minister. By a further email on 19 June an updated list was attached which deleted Xstrata, leaving six companies on the first part of the list. Ms Moloney gave evidence that Mr Mullard had asked her to exclude the larger companies because "we were working on the remnant areas and looking at areas suitable for small to medium size companies". [256] Also on 19 June, Mr Obeid Snr contacted Mr Macdonald at 9.14am, followed by three calls between Mr Moses Obeid and his father. On 21 June Mr Obeid Snr contacted Mr Moses Obeid at 6.41am and, three hours later, contacted Mr Macdonald. Two hours later, at 11.43am he again contacted Mr Moses Obeid.
On 23 June 2008, Mr Obeid Snr contacted Mr Macdonald at 7.03am, followed by three calls between Mr Obeid Snr and Mr Moses Obeid and further contacts between Mr Obeid Snr and Mr Macdonald at 9.28am and then at 9.51am.
On the same day (23 June) Mr Rumore, a solicitor for the Obeid family, had a conference with Gerard and Paul Obeid to obtain instructions to prepare an agreement. The file note recording the proposed agreement was significant. It recorded instructions to prepare heads of agreement with persons identified as the "Boyds", to provide for a joint venture involving three properties, one owned by the Obeids and two being purchased by the Boyds, for farming/rural purposes as agreed from time to time. The file noted continued: [257] "Once EOI issues re coal lease, land value increases many fold (3 or 4 times)."
Arrangements were proposed for repayment of money invested by the Boyds together with a division of the value when negotiated with interested mining companies.
Given the stage to which matters had progressed within the Department of Primary Industries, the step of instructing solicitors on 23 June was prescient. An interest in purchasing Coggan Creek and Donola had first been demonstrated eleven days earlier when Mr Rodd and Mr Adlington had inspected the properties. The steps being taken by the Obeid family to interest parties in investing implied that the Obeid family was anxious to capitalise on the information they had despite the lack of available funds. Obviously, that fact alone did not provide a solid basis for an inference that the source of the information was Mr Macdonald: however, it was to be seen as a significant element in a chain of events.

[56]

(6) Period 1 July 2008 - 14 July 2008

It will be necessary to return in due course to the evidence that the information and documents which appeared to be available to the Obeid family from no later than mid-June 2008 did not become publicly available through the release of the expressions of interest process until 1 September 2008. It will also be necessary to identify the evidence which supported the conclusion that the information and the documentation were treated by officers in the Department, and in the Minister's office, as confidential. There was also evidence from each of the witnesses who were called that he or she did not reveal publicly the information which was being supplied to the Minister's office.
On 1 July 2008, between 7.32am and 9pm there were eight contacts between Mr Obeid Snr and Mr Moses Obeid. There were also contacts between Mr Obeid Snr and Mr Macdonald at 7.39am, 8.28am, 1.29pm, 6.05pm and 9.16pm. Further, Mr Macdonald contacted Mr Fang at 1.21pm, 5.23pm, 5.34pm, 5.55pm and 5.58pm. There was contact between Mr Moses Obeid and Mr Fang at 3.42pm and 6.20pm.
It was Mr Moses Obeid who was actively pursuing the possibilities of the Obeid family gaining control of the two properties to the north of Cherrydale Park and developing a plan for the family's involvement in the commercial exploitation of the coal resource he understood to lie under the properties.
Some of the contacts may not have been substantial, but the ready inference, given the foregoing circumstances, is that many if not most of the contacts related to the coal release area adjacent to Mount Penny. On the following morning, at 6.50am, Mr Obeid Snr contacted Mr Moses Obeid; at 12.26pm, Mr Fang contacted Mr Moses Obeid. A quarter-of-an-hour later, Mr Moses Obeid contacted Mr Lewis.
Following the meeting between Mr Rumore and Paul, Gerard and Moses Obeid on 30 June 2008, at which time Mr Rumore was advised that Tianda Resources would be the new partner in the joint venture, there was a further conference with the three Obeid brothers and Mr Fang on the same day, in the course of which Mr Fang advised that Tianda Coal (Australia) Pty Ltd was to bid for "the coal lease". Mr Rumore noted (no doubt his own advice) that if the purchase of two farms was to be by an offshore company, there may be a need for FIRB approval.
There was a further conference between Mr Rumore, Mr Fang and Moses and Gerard Obeid on 2 July 2008. A more detailed (and complex) arrangement was proposed, apparently by Mr Fang, who was to establish a company (Great Western Coal Pty Ltd) of which Unen Coal Limited would be a shareholder and "Obeid Co" would take a 30% option in GWC, if it won the right to mine coal in the three properties. The following morning, Mr Rumore sent an email to the Obeids at 8.51am. It is clear that Mr Rumore thought Mr Fang had been playing for time before agreeing to a price and further stated: [261] "It is quite apparent that Mr Fang last evening was trying to have the price significantly reduced below your expectations and the expectations of your father. Would you please consider these matters, meet with Mr Fang and then come back to us."

[57]

(7) Seventh act of misconduct - list of companies

The evidence that the Obeids were planning to be involved in any exploration licence "at the mining level", rather than merely as affected land holders, was comfortably established by evidence of their attempts to engage Monaro Mining in the first stage of the EOI process. That approach is confirmed by the attempts by Mr Brook immediately following the meeting with Mr Moses Obeid on 3 July 2008 to obtain information about possible coal mining companies with whom he might be able to do business.
The seventh particularised act of misconduct alleged that on or after 7 July 2008 Mr Macdonald caused the Obeids to be provided with a document titled "company EOI 2 July 2008" containing a list of companies proposed to be invited to participate in the EOI process or, in the alternative, information as to the companies on that list.
The list contained three categories. The first identified six companies which had registered an interest in a coal allocation in the Western Coalfield; the second, companies with current titles in the Western Coalfields, and the third, other "small companies" which had expressed an interest in coal allocations elsewhere in the State.
The existence of the list and the means by which it came into being were not contested. The trial judge found: "1370 At, or shortly after, a meeting at Parliament House on 17 June 2008 convened by Mr Macdonald and attended by Mr Gibson and Mr Mullard, Mr Macdonald asked Mr Gibson to have the DPI prepare a list of mining companies who might be suitable to be invited to participate in the EOI process for the release of a number of small to medium coal release areas, including what had come to be described, by that date, as 'Area 7', the coal release area described in the Ministerial Briefing prepared for that meeting as 'Mount Penny'."
The first version of the list, prepared on 19 June 2008 by Ms Moloney, and emailed to Mr Mullard on the same day, included information derived from the "Coal Register". The Coal Register was a document in which Ms Moloney recorded companies which had expressed an interest in exploiting coal resources. She regarded the document and the information contained as confidential and not available to members of the public. [296]
The first version of the list contained only the first two categories of companies. A second version, also prepared on 19 June, contained the same two categories, but with the large companies excluded. Mr Mullard explained the instruction given to Ms Moloney in that regard in the following terms: [297] "The discussion was that we needed to remove the large companies from the list because it wasn't consistent with what the Minister was wanting to do, which was restrict the EOI areas to the smaller to medium companies."

[58]

(8) Eighth act of misconduct - coal allocation areas

Mr Rumore was away for the week of 7 July 2008, but sent an email to Mr Gerard Obeid (copying Paul and Moses Obeid) with respect to "sale of Coggan Creek Bylong", on his return on Monday 14 July. He asked about developments with regard to "negotiations with Mr Fang and Tianda Group with respect to this transaction".
Mr Brook gave evidence that when Mr Moses Obeid gave him the list of companies, he asked him to "research the list and identify any companies that [I] thought might suit Lehman Brothers' profile to approach, in order to start a conversation about potentially partnering with them in order to make an offer or make an application to achieve a bid on an exploration licence". [311] He said that he did, and was able to identify information with respect to Monaro Mining NL because it was a public company. He said that access to information as to the financial standing of other companies was limited if not impossible. [312] He described the position of Monaro Mining in the following terms: [313] "They had spread themselves very thin with respect to managing multiple uranium mining projects around the world. They were financially weak. So in my thinking, I thought they would be very receptive to a knock on the door from a bank like Lehman Brothers who was working in concert with respect to a landholders alliance with a forthcoming government tender coming forward."
Mr Brook did in fact contact Monaro Mining and made an appointment to meet with Mr Mart Rampe on 15 July 2008. Mr Rampe identified a note of the meeting as being in his handwriting. [314] The document relevantly read: [315] "Gardner Brook Lehman Bros. 1. Clients in India willing to take off-takes. 2. He knows about our interest in NSW coal. 3. 3rd party wants to JV. * Do not want operational control. * Passive investor. 4. Lehman (& clients) to support project."
Although Mr Rampe appeared somewhat dismissive of Mr Brook's approach to him (of which he said he had no prior notice), the Chairman of Monaro Mining, Mr Warwick Grigor expressed immediate interest and arranged to meet Mr Brook the following day (16 July 2008) at Lehman Brothers' offices.
On the same day, 16 July, Mr Rumore sent a tax invoice to Mr Brook relating to the incorporation of Voope Pty Ltd and "negotiations with regards to Voope Pty Ltd and Monaro Mining NL and Leham (sic) Brothers entities". [316]

[59]

Other particulars

Having addressed the evidence globally, it is necessary to return to the "particulars" of unreasonableness which constituted the structure upon which the appellants addressed ground 2 and which have not been addressed.
First, particular (d), identified at [341] above, challenged a finding as to Mr Moses Obeid's participation in the conspiracy as at 9 May 2008. The primary submission in support of this particular was that the judge's finding against Mr Moses Obeid was "based entirely on his conduct from 30 June 2008 onwards". [332] While a strong inference of involvement in the conspiracy may be drawn from Mr Moses Obeid's vigorous pursuit after 30 June 2008 of the commercial exploitation of the coal under Cherrydale Park, that did not demonstrate that he was party to the conspiracy from 9 May 2008. However, there was other evidence to support the conclusion that he was involved from a date well before 30 June and by 9 May 2008. As discussed in addressing ground 5(1), the conversations with Peter and Nicole Fitzhenry demonstrated knowledge on the part of Mr Moses Obeid of there being coal under Cherrydale and that Moses Obeid approached Mr Fitzhenry to purchase Coggan Creek. The evidence supported the conclusion that there had been a conversation prior to 9 May 2008 "in which Mr Moses Obeid demonstrated excitement as to the prospect of an exploitable resource under Cherrydale". [333]
Mr Fitzhenry gave evidence that he had met Mr Macdonald in the driveway of Moses Obeid's house and Mr Obeid had introduced him, saying, "This is Macca". [334] On another occasion, while he was in a room with Moses Obeid who was speaking to Mr Macdonald, Moses Obeid handed him the phone, and Mr Fitzhenry gave Mr Macdonald a tip for the races on the coming Saturday. [335]
The telephone call records involving the Obeids and Mr Macdonald have already been considered, but it is convenient to return to them in this context. First, although it is clear that Mr Moses Obeid had a social relationship with the appellant (referring to him, as Mr Fitzhenry noted, as "Macca") the telephone records from 1 January 2007 reveal little contact until 27 September 2007, being the time that Cherrydale Park was purchased. There was one call by Moses Obeid to Mr Macdonald on 27 September, followed by two calls on 4 October 2007, a further call on 10 October, and one on 11 October, together with three further calls on 13 October, one initiated by Mr Macdonald. There were two calls on 20 October, three on 10 November and two on 11 November 2007. There was a further call of five minutes and twenty seconds initiated by Mr Macdonald to Moses Obeid on 17 November, two calls on 1 December and three further calls on 8 December 2007. There were further calls throughout December. There was a five-minute call from Moses Obeid on 22 January 2008, two calls initiated by Mr Macdonald on 2 February and a further four-minute call initiated by Mr Macdonald on 9 February 2008. On 16 February, there were several brief contacts and a seven minute thirty second call initiated by Mr Macdonald. There were eleven calls in the first eleven days of April 2008.

[60]

Distancing Obeid name from coal activities

In a section of the judgment not the subject of challenge, findings were made with respect to the attempted change to the legal ownership of Cherrydale Park. The purchase had been undertaken by Locaway Pty Ltd as trustee for the Moona Plains Family Trust, the primary beneficiaries of which were the four children of Mr Obeid Snr, who was the appointor. An attempt was made, commencing in February 2008, to alter the ownership. By a letter dated 14 February 2008, addressed to Mr Obeid Snr, at Coalpac Group Pty Ltd at Birkenhead, Mr Anthony J Cordato, solicitor, stated: "We refer to our telephone discussion and confirm that you desire to appoint United Pastoral Group Pty Ltd as the new trustee of the trust to replace Locaway Pty Ltd."
Mr Cordato advised that he had already written to the solicitor for the Cherrys, seeking their client's consent to the substitution of United Pastoral Group Pty Ltd for Locaway Pty Ltd as mortgagor.
United Pastoral Group Pty Ltd was originally incorporated under a different name with the registered office of SJ Sassine & Co, an accountant who worked for the Obeids. On 15 February 2008, Mr Andrew Kaidbay was appointed as director and secretary and became the holder of what appear to be the issued capital of the company. In fact, the name of the company was not changed to United Pastoral Group Pty Ltd until 30 September 2008.
In October 2008, Mr Sassine sent Mr Cordato a trust deed. The deed was apparently dated 25 October 1994, but Mr Sassine stated that "[t]he new trustee as from Feb 2008 should be United Pastoral Group Pty Ltd". The delay between mid-February and early-October 2008 is not explained, but it is apparent that Mr Obeid Snr considered it necessary to remove any association of the Obeid family from the ownership of Cherrydale Park.
As Mr Cordato was aware, the change in the trustee required the consent of the mortgagee. Accordingly, he wrote to the solicitors for Mr Cherry on 15 October 2008. Nothing appears to have occurred at that stage, and Mr Cordato followed up with a telephone discussion and a letter dated 9 February 2009. The solicitors replied on 12 February 2009 stating that Mr Cherry had already indicated to Mr Obeid Snr that "the reasons for the change would need to be provided before the request would be considered".
On 16 February 2009, Mr Cordato responded: [345] "The reason for the change in trustee is to protect the privacy of our clients …. The new trustee is a nominee company which has been incorporated for this purpose." Consent was refused. [346]

[61]

Statements to journalists

In 2010, Ms Anne Davies wrote an article in the Sydney Morning Herald as a result of research she had undertaken in relation to coal in the Bylong Valley. Relevantly, she had spoken to Mr Moses Obeid. She gave evidence based on her notes on a voir dire (which was subsequently admitted in the trial) in the following terms: [350] "Q. Returning then to your note of question in relation to Justin Kennedy Lewis, do you recall what your question was? A. I think I asked whether he knew Justin Kennedy Lewis and whether he knew Justin Kennedy Lewis had bought a property up there. Q. At line 6, after your question, it says in the green notes, 'no, I didn't until January'. What does that relate to? … A. That was the answer that Moses Obeid gave me, that he didn't know until January that Mr Kennedy Lewis had bought a farm in the valley. … A. Because that was what he told me that Justin Kennedy Lewis had said to him. So he was recounting the whole conversation. He said that he had bumped into Justin and that Justin had said, 'Oh, I've bought a farm in the Bylong Valley' and that he didn't know until January and then he said that Justin Kennedy Lewis had said, 'you guys have got a farm up the road'. Q. … The reference to 'Justin K Lewis', … there is ['Q. did you get him to buy it?'] … Q. And the response in quotation marks 'not at all', who said that? A. That was what Moses Obeid said to me. Q. And was that in response to a question about whether he got Justin Kennedy Lewis to buy the property? A. Yes. Q. Lines 23 and 24, on the green notes, 'we don't go around buying farms for the sake of it', do you recall who said that? A. Yes, that was Moses Obeid and he said to me, 'look why would we' - … A. So he said to me, 'we don't go around buying farms for the sake of it'. It was him - he was sort of outraged at the suggestion I had made that they were buying farms under the cover of somebody else's name."
There was ample documentary evidence that Mr Moses Obeid, a friend of Mr Lewis, had taken steps to arrange for him to purchase Coggan Creek. Accordingly, the statement made to the journalist, Ms Davies, was a fabrication. The judge's acceptance of the submission that this was a deliberate lie was not challenged on the appeal. [351]
In December 2012, both Mr Obeid Snr and Mr Moses Obeid were interviewed by two journalists, Mr Shanahan and Ms Jiminez over three days, being 18, 20 and 21 December 2012. Mr Obeid Snr participated in the interview on 18 December 2012 only. [352]

[62]

Ground 2 - Conclusions

As has been noted, in dealing with a circumstantial case, and particularly one involving a conspiracy, the manner in which the unreasonableness submissions were formulated under common ground 2 was problematic. [354] Rather than consider whether there was a reasonable hypothesis consistent with an innocent explanation in respect of each particular matter relied upon by the trial judge, it was necessary to engage in an assessment of the whole of the evidence in order to articulate a reasonable doubt as to the correctness of the verdict.
It may readily be accepted that some of the material relied upon was more powerful than other elements. However, each of the verdicts was capable of support in circumstances where the indispensable elements were established beyond reasonable doubt, but only on the evidence and the inferences drawn from the evidence. The Court is of the view that the prosecution proved beyond reasonable doubt the existence of a conspiracy as alleged in the indictment, and that each of the co-accused were participants in it at the time at which it was formulated, namely prior to 9 May 2008. We do not entertain a reasonable doubt in that respect. There is therefore no need to consider whether the trial judge had a particular advantage which might have explained all or some aspects of a doubt which we entertained.

[63]

PART D ORDERS

The nature of the charge and the complexity of the evidence justify a grant of leave to appeal, to the extent that that is necessary, pursuant to s 5(1)(a) of the Criminal Appeal Act. Such leave should be granted with respect to each appellant.
However, in each case the appeal must be dismissed. Annexure A and B (1462036, pdf)

[64]

Endnotes

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858.
Footnotes have been routinely omitted from the extracts from the judgment set out below.
Ground 1 in Edward Obeid's appeal omitted the word "or", thus suggesting that the second limb was a particular formulation of the first limb. Nothing turned on that variation.
Trudgeon v R (1988) 39 A Crim R 252, 256 (Gleeson CJ); R v O'Brien (1974) 59 Cr App R 222, 226.
(1998) 192 CLR 493; [1998] HCA 7 at [55].
The Queen v Rogerson (1992) 174 CLR 268 at 280-281 (Brennan and Toohey JJ); [1992] HCA 25.
Peters at [54].
Gerakiteys v The Queen (1984) 153 CLR 317 at 327 (Brennan J); [1984] HCA 8; R v Gill and Henry (1818) 2 B & Ad 204, 205; 106 ER 341, 342 (Abbott CJ) applied in Peters at [70].
Primary judgment at [650]-[740].
Coal was a group 9 mineral for the purposes of the Mining Regulation: Sch 3.
These provisions have been considerably expanded in recent years, but were in this form in May 2008.
Mining Act, s 368.
Tcpt, 27/02/20, p 603(30)-(50).
References to the evidence are omitted.
Judgment at [751].
Judgment at [752].
Judgment at [691].
Written submissions, par 153.
(2010) 241 CLR 177; [2010] HCA 17. (References omitted.)
(1868) LR 3 HL 306.
LK at [63].
(1915) 20 CLR 425 at 446-447 (Isaacs J); [1915] HCA 58.
(1923) 33 CLR 386 at 396 (Isaacs and Rich JJ); [1923] HCA 59.
(1992) 174 CLR 268; [1992] HCA 25.
Rogerson at p 281.
Rogerson at p 287.
Although it is of no moment, the written submissions for Mr Moses Obeid stated that Mason CJ agreed with the analysis of Brennan and Toohey JJ in relation to this point: that is not apparent from the Chief Justice's statement at p 279.
Obeid written submissions, par 161.
M Obeid written submissions, par 72.
(2019) 99 NSWLR 376; [2019] NSWCCA 32 at [84] (Bathurst CJ, Beazley P, Ward CJ in Eq, Hamill and N Adams JJ).

[65]

Amendments 09 October 2023 - Changes to quote in [553]. 16 April 2024 - [20] 1st line - changed "were" to "was" [21(6)] and index - changed "partiality" to "impartiality" [45] 1st line - "third" inserted before "appellant's" [47] 2nd sentence - changed "appellant" to "appellants" [50] after "French CJ" changed "Mulcahy" to "LK" [52] - deleted "of" before "a false story" Heading above [82] - changed "partiality" to "impartiality" [92] 1st line - replaced "is" with "are" before "obscure". [96] - changed "appellant" to "appellants" fn 34 - changed "55" to "at 69" fn 60, 61 and 65 - insert "third" before "appellant's" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2024

The judge then dealt with each of the steps set out in [694] separately. It is convenient to set out the judge's summary of the evidence, although it is lengthy and detailed. [14] "Recommendations by the DPI to the Minister about releasing particular coal resources to tender 700 The usual process for the allocation of ELs for coal resources in New South Wales involved the Department identifying a particular coal resource, or a group of coal resources, and recommending to the Minister that those areas be made the subject of either a competitive process or, in certain circumstances, granted by direct allocation. 701 Between May and June 2008, officers of the DPI were involved and at the Minister's request, in designating the boundaries of a number of new small to medium coal release areas in the Western, Hunter and Gunnedah Coalfields for inclusion in a proposed EOI process. 702 That process was undertaken by the DPI in accordance with the Coal Allocation Guidelines. The Guidelines for Allocation of Future Coal Exploration Areas (Coal Allocation Guidelines) 703 Coal Allocation Guidelines operated to guide the DPI's Coal Allocation Committee in the decisions it made concerning the nomination of future coal exploration areas. Various iterations of the Coal Allocation Guidelines were produced by the DPI and amended and adjusted over time for various purposes with the approval of the Minister. 704 The Coal Allocation Guidelines dated January 2008 were in place at all relevant times during the currency of the conspiracy, replacing … the Coal Allocation Guidelines issued by the DPI in March 2006. 705 The Coal Allocation Guidelines were issued subsequent to the allocation of New South Wales as an MAA for coal for the 'controlled and rational release of potential coal development areas and the setting of special conditions for each allocation'. The Coal Allocation Guidelines confirm the statutory requirement for the Minister's consent to the making of any application for an EL in respect of a coal resource in a MAA. 706 The Coal Allocation Guidelines do not apply to any existing coal titles but to only to 'future coal exploration areas'. 707 Mr Mullard gave evidence about the grouping of potential coal allocation areas into four subcategories: (1) Subcategory (i) concerns major standalone areas identified as areas containing sufficient coal to develop a 'large' new mine. (2) Subcategories (ii) and (iii) concern, respectively, substantial additions to existing mines and minor additions to existing mines. The former are considered to have potential to be major standalone areas, being coal mined from a continuation of an existing mine over areas adjacent to an existing mine. The latter are not considered large enough to develop major standalone mines, being small areas adjacent to existing mines which could be mined for a continuation of existing operations. (3) Sub-category (iv) concerns the allocation of 'small areas unrelated to existing mines,' including remnant coal resources left from previous mining operations' and 'small deposits with some development potential'. 708 Allocation methods were nominated for each of the four subcategories. Two allocation methods are nominated: allocation by 'priority of application or by some limited form of expression of interest'. 709 The eleven small to medium coal release areas the subject of the EOI process launched on 9 September 2008 which included Mount Penny as 'Area 7' concerned small areas within subcategory (iv), that is, remnant coal resources and small deposits with some development potential. 710 In contrast to major standalone areas, or substantial/minor additions to existing mines (subcategories (i), (ii) and (iii) of the Coal Allocation Guidelines), under subcategory (iv) the minimum financial contribution of an applicant for the issue of an EL is 'based on tonnages of saleable coal, as specified in the appendix attached to the Coal Allocation Guidelines, ranging from $250,000 for a saleable tonnage of coal less than 5Mt to greater than $20 million (as a minimum contribution) for saleable tonnage of coal greater than 100Mt. As the appendix to the Coal Allocation Guidelines makes clear, the minimum financial contributions are indicative only, with the contributions varying depending upon whether the mining method is underground or open cut; the quality of the coal; whether it is for domestic or export purposes; and the size of the resources. 711 Mr Mullard gave evidence that for a mining company to lodge an EOI for the grant of an EL for any one of the four coal allocation categories in the Coal Allocation Guidelines, the company needed to have the capacity to assess the potential return from a successful mining of the coal resource, including the cost of establishing a mine, in order to assess the amount of coal that might be extracted under the terms of a mining lease. He also emphasised the need for the company to assess the cost of environmental studies and any other constraints that might impact on the company's capacity to undertake mining activities in the area. To that end, borehole data together with geological or geophysical surveys are essential to the preparation of reliable modelling. That model also needs to take into account the method of extraction and other indices. 712 Mr Mullard gave the following evidence: If you basically don't have any information, there is no basis for the company ‑ it is very high risk. So a company really doesn't have an understanding of what the coal is like, how deep it is, can it be mined by underground, what are the other geological constraints or other constraints that might apply. So you would be very reluctant to bid a substantial amount of money because the uncertainty was too high. The more information you have on a coal deposit, the less uncertainty there is in terms of your ability to mine it and the potential cash flows from that mining operation and that enables companies then to formulate a bid or an offer with a relevantly high degree of certainty; there is no guarantee, but they would be prepared to give a much better offer, generally a substantial offer, than where they had no information. 713 Mr Mullard made clear that while the DPI had information resources of various kinds including, relevantly, its own drilling data for the ELs that the Department held on behalf of the State of New South Wales, a mining company would also need to critically assess its capacity to make an informed assessment of where the coal resources within a coal exploration area might be located, the thickness of the available and accessible coal seam, and the quality of the coal itself. He gave the following evidence as to the significance, as he saw it, of an applicant for a coal EL in a small-to-medium coal release area having access to that general body of information as to which he said: Well, small to medium areas really were ‑ some of those were remnant areas, some of them were areas that didn't really have a lot of interest and the additional information really wasn't warranted by the Department to do a lot of work in those areas because they were never going to generate significant income. … By way of additional financial contribution. And there was a risk, significant risk, that if the department drilled these areas they might find there wasn't anything there worthwhile. So by and large where the department did its drilling focused on the larger stand‑alone areas. 714 The Coal Allocation Guidelines, in their various iterations, were available to the public on request. Mr Mullard gave the following evidence: So all of that information essentially was public information and companies could go to the Department and obtain information on those areas. And, in fact, the Department used to say 'we are looking at releasing areas in the Gunnedah Coalfield' or 'we are looking at releasing areas in the Western Coalfield' … What was confidential was the very specific 'this is the area that's going to be released'. Identifying coal resources for direct allocation and competitive tender 715 In the ordinary course of events, if a company wished to apply for an EL, it would write to the Minister or to the Department seeking the Minister's consent to apply by direct allocation. 716 Preliminary to any application being considered by the Minister, applications for consent to apply for ELs were considered at meetings of the Department's Coal Allocation Committee against, amongst other criteria, the Coal Allocation Guidelines. Departmental geologists on the Committee would verify the coal figures put forward by an applicant. Public interest considerations were also assessed, as was fairness to other applicants who had previously registered an interest or sought the Minister's consent to apply for an EL in respect of a subject area. 717 If the Coal Allocation Committee determined that a company's application for the direct allocation of an EL for coal was successful, the Committee would prepare a recommendation to the Minister so that he could, by way of invitation, provide his consent for that company to formally apply for the coal EL by direct allocation. In these circumstances, the Department would ordinarily draft a letter to the successful applicant which the Minister would sign. All unsuccessful applicants were informed by the DPI of that outcome. 718 A record of all applications for ELs by direct allocation and the outcomes of Coal Allocation Committee meetings, including successful and unsuccessful direction allocation applications, was maintained in the Coal Register in the form of a spreadsheet created and maintained by the DPI. 719 Mr Mullard gave evidence that the DPI also used the Coal Register to collect information about which unallocated coal resources were attracting interest in the industry. Those areas were released by the DPI from time to time under competitive EOI processes. 720 The inclusion of a particular coal resource in an upcoming EOI process was considered confidential information until such time as the EOI process was publicly released. The Coal Register was not publicly available. The information it contained was treated confidentially because, as Mr Mullard described it, 'it may contain … expressions of interest by companies that may contain commercial-in-confidence information so we did not make [the Coal Register] publicly available'. 721 The dual possibilities of assigning ELs via direct allocation or subject to competitive tender is particularly relevant to the fourth subcategory of potential coal allocation areas under the Coal Allocation Guidelines, namely 'small areas unrelated to existing mines,' including 'remnant coal resources left from previous mining operations' and 'small deposits with some development potential' which, as noted above, are allocated via 'priority of application or by some limited form of expression of interest'. A limited form of expression of interest 722 Mr Mullard explained that 'all of the allocations within mineral coal allocation areas were subject to an EOI process... which effectively wasn't a process that was defined in the [Mining Act] but it was a way of formalising the way the Minister made his decision to give consent' to a company to apply for an EL. EOI processes, including the EOI process launched in September 2008 in relation to eleven small to medium coal release areas including Mount Penny, were undertaken 'as a precursor to the power that might be exercised by the Minister in section 13(4)' of the Mining Act where the Minister gave consent to a particular company to apply for an EL. 723 That EOI process was limited in the sense that a limited number of companies, having been selected by the DPI referable to their expressions of interest in the types of coal resources being released to tender (as recorded on the Coal Register), were invited to participate and provided with an EOI Process Information Package prepared by the DPI. 724 While s 14 of the Mining Act provided for the allocation of ELs for allocated minerals in land within an MAA via a process of 'invitations for tender', Mr Mullard explained that provision was not used during his time at the DPI and that it was distinct from the EOI process with which the this trial was concerned. The Evaluation Committee's selection of a preferred mining company 725 Upon the receipt of expressions of interest from companies invited to participate in an EOI process, an independent Evaluation Committee and an external probity auditor were appointed to evaluate those applications against the criteria provided in the Coal Allocation Guidelines and elaborated upon in the EOI Process Information Package issued to invitee companies. Evaluation Committees and probity auditors were used in the Caroona and Watermark EOI processes together with the EOI process in respect of eleven small to medium coal release areas including Mount Penny. 726 The Evaluation Committee would identify the preferred applicant for an EL to the Minister in writing and recommend that the preferred applicant be granted consent to apply for an EL. The granting of consent by the Minister for the preferred company to apply for the EL pursuant to the regime in s 13(4) of the Mining Act 727 Whether a coal resource was to be directly allocated or released as a result of a competitive process, the Minister was required to consent to the making of the application. 728 The Minister invited applicants to make the necessary application on the basis of the Evaluation Committee's advice. Application by the recommended company for the EL under s 13 of the Mining Act 729 If the successful applicant then wished to proceed with its application, it would apply to the Department using the forms supplied on the Department's website, which require confirmation of certain administrative issues such as available financial resources, particulars of proposed program of work and a statement providing an estimate of the amount of money proposed to be spent on prospecting. Subject to adequate confirmation of these administrative issues by Departmental officers, an EL in the form of a deed would be prepared."

A number of propositions (discussed in the following paragraphs in Hui) follow from these defined elements. First, the nature of the conduct which will constitute misconduct "defies precise definition because of the range of conduct that it is designed to cover". [34] Secondly, the conduct must have a necessary link to official powers, duties or responsibilities, but need not be an exercise of the powers of the office. The Hong Kong Court of Final Appeal continued: "47 … Yet, not every breach of the law by a person when he or she is a public official is in the course of or in relation to the office held. In Sin Kam Wah v HKSAR the relevant conduct was not in the performance of the police officer's duties, but was found to have such a relationship with his public office as to bring that office into disrepute. In The Queen v Quach [35] Redlich JA, with whom the other members of the Victorian Court of Appeal concurred, approved Professor Finn's statement that 'the kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position' and said: [36] 'In my opinion the relevant misconduct need not occur while the officer is in the course of performing a duty or function of the office. Certain responsibilities of the office will attach to the officer whether or not the officer is acting in the course of that office. Where misconduct does not occur during the performance of a function or duty of the office, the offence may be made out where the misconduct is inconsistent with those responsibilities. It may be connected to a duty already performed or to one yet to be performed or it may relate to the responsibilities of the office in some other way. The misconduct must be incompatible with the proper discharge of the responsibilities of the office so as to amount to a breach of the confidence which the public has placed in the office, thus giving it its public and criminal character.' 48 The characterisation of the misconduct alleged may involve both a descriptive element (of the facts of the transaction) and a value judgment (of its effect). For example, the Australian case of The Queen v Boston concerned a conspiracy to make a corrupt payment to a member of the New South Wales Parliament to induce him to use his official power in an improper way. The criminality of the alleged agreement lay in its tendency to produce a public mischief. [37] Members of the High Court characterised the public mischief. Knox CJ said: [38] 'Payment of money to a member of parliament to induce him to persuade or influence or put pressure on a minister to carry out a particular transaction tends to the public mischief in many ways, irrespective of whether the pressure is to be exercised by conduct inside or outside parliament. It operates as an incentive to the recipient to serve the interest of his paymaster regardless of the public interest, and to use his right to sit and vote in parliament as a means to bring about the result which he is paid to achieve. It impairs his capacity to exercise a disinterested judgment on the merits of the transaction from the point of view of the public interest, and makes him a servant of the person who pays him, instead of a representative of the people.' This, of course, is a reference to a specific transaction. But Isaacs and Rich JJ put the public mischief in wider terms in the following passage: [39] '[The member] has … placed himself in a situation embarrassing and inconsistent with that independence to criticize or censure which he is bound to preserve; he has fastened upon himself golden fetters which preclude his freedom of action. The natural fear of exposure or reproach, or the sense of personal obligation, must inevitably operate to dissuade him from fearlessly pursuing the path of true service….' 49 The public mischief that was the object of the conspiracy in The Queen v Boston did not lie either in the bare financial transaction involved in the payment or in the making by a parliamentarian of representations about government action. It lay in the connection between the two: the representations were to be made in return for the payment. The payment took its character from the purpose for which it was made, and by accepting it the recipient placed himself in a situation incompatible with the responsibilities of his office."

The qualification is that the prosecutor is obliged to call a witness if it is necessary to ensure the fairness of the trial. [82] As stated by Dawson J in Whitehorn: "In Richardson v. The Queen … this Court pointed out that although the choice made by a Crown Prosecutor of the witnesses to be called in support of the Crown case may be said to involve the exercise of a discretion, that means no more than that he is called upon to make a personal judgment bearing in mind the responsibilities of his office. It is not a discretion which he can be compelled to exercise in a particular manner, although his failure to call witnesses who ought to be called may constitute misconduct and may result in a miscarriage of justice which will constitute a ground for setting aside a conviction and granting a new trial. It is in this context that it is possible to speak of a Crown Prosecutor being bound, or under a duty, to call all available material witnesses. It is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor. Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court."

The reasoning of the judge in this respect should be set out in full: "2018 In ultimately reasoning to the conclusion that Edward Obeid's participation in the conspiracy is proved beyond reasonable doubt (both on the basis of the evidence I have reviewed in proof of that fact and upon application of the co-conspirators rule in s 87(1)(c) of the Evidence Act), I am unable to countenance as a reasonable or rational possibility that the conspiracy would have been forged between Moses Obeid and Mr Macdonald, and progressively executed by each of them from May 2008 through to and including January 2009, so as to strategically position the Obeid family to seek to exploit the monetary value of the coal underlying Cherrydale Park and to the detriment of its appointment as a fine piece of agricultural land purchased at considerable expense by the family as a rural retreat, without Edward Obeid's intentional participation with them in an agreement of the scope and object alleged. 2019 I also accept the Crown's submission that it is implausible that Mr Macdonald would make what I was satisfied was a 'strong suggestion' that the DPI designate a new coal release area in the precise location where he knew that Edward Obeid, a friend and Parliamentary colleague, had recently acquired a significant rural property, without Edward Obeid's knowledge and express approval, and without a preparedness on Edward Obeid's part to sacrifice the beauty and amenity of the property in pursuit of the profit on its sale to a mining company. 2020 I am also unable to countenance as a reasonable or rational possibility that the mining deal, so vigorously pursued by Moses Obeid from July 2008 (enabled by Mr Macdonald's provision of confidential information on multiple occasions at that time), would have occurred at the pace at which it did, at the presumed expense that it entailed and with the potential commercial outcome of those arrangements that were settled, first between Voope P/L and Monaro Mining NL within the currency of the conspiracy, and then between Buffalo Resources P/L and Cascade Coal P/L after the conspiracy had been executed, without Edward Obeid being kept informed as to the progress of those arrangements as they were unfolding or, I am also prepared to infer, without with his active input and express sanction."

Having then considered the way in which particular representations were capable of demonstrating consciousness of guilt with respect to the offence the subject of the indictment, the trial judge concluded that of 36 representations identified by the prosecutor, 10 were "capable of supporting the inference for which the Crown contends, namely lies told by either Edward Obeid or Moses Obeid at a time when they were conscious that they had both conspired with Mr Macdonald, in the way the Crown alleges, with the object of that unlawful agreement being the generation of a financial advantage to the accused and/or their family or associates". [111] The trial judgment then continued: "49 I am satisfied for the reasons which follow, when considered in the context of all of the evidence adduced thus far in the trial, and having considered the submissions by counsel about the evidence, that, for admissibility purposes, 10 of the 36 representations identified in the schedule to the judgment are capable of being considered as 'consciousness of guilt lies' and that they are admissible on that basis as part of the Crown case against each of the accused. 50 In short, that ruling reflects a finding, on the balance of probabilities, that the motive for each of the lie(s) was a realisation of guilt and a fear that the truth would expose the fact that confidential information had been received from Mr Macdonald concerning the potential for the granting of a coal exploration licence over the land the Obeid family owned or controlled in the Bylong Valley and the fact of their criminal complicity, more generally, with Mr Macdonald in the commission by him of the multiple acts of wilful ministerial misconduct. It also follows that I am satisfied that the ten 'consciousness of guilt lies' are capable, when the Court is sitting as the tribunal of fact on the ultimate question of whether guilt is proved beyond reasonable doubt, as revealing a consciousness of guilt of the specific offence with which the accused are charged and in that way are probative of that fact."

Finally, it is convenient to note the legal consequence of there being no "Edwards direction" set out in the final judgment. The respondent identified on the appeal two factors which needed to be addressed. First, it was contended that the trial judge both directed herself in accordance with the principles in Edwards and applied those principles. The respondent relied upon the passage at [1967], set out at [199] above which included the footnote to Edwards v The Queen. The respondent also relied upon the two following paragraphs which read as follows: "1968 Having regard to all the evidence in the trial and in light of the various factual findings I have made in the course of my deliberations to date, I am satisfied that each of the ten lies attributed to Moses Obeid was a deliberate misstatement of the truth. I am also satisfied that each lie was material to the issues in dispute in the trial and each was told by Moses Obeid in an attempt by him to conceal both the existence of a conspiracy in which Mr Macdonald as the Minister for Mineral Resources agreed to breach his Ministerial duties and obligations in connection with the granting of an EL at Mount Penny for the improper purpose alleged, being an agreement into which Moses Obeid had intentionally entered and in which he actively participated throughout its currency. 1969 I am further satisfied, and direct myself accordingly, that it is safe to draw an inference of guilt adverse to Moses Obeid from having told each of those ten deliberate lies, in circumstances where I am satisfied that had he truthfully answered the questions put to him and/or volunteered information to the journalists about the acquisition of the properties adjoining Cherrydale Park and the circumstances in which he and members of his family became involved with mining companies who had applied for an EL at Mount Penny including Cascade Coal P/L, the mining company ultimately granted that EL, he would, unquestionably, have been at risk of implicating himself as a co-conspirator in the conspiracy charged."

The evidence as to the meeting at the Wentworth Hotel on 7 July 2008 (the second such meeting) extended over more than 60 paragraphs of the judgment. Mr Brook's evidence was broken by a voir dire, in circumstances recounted by the judge at the beginning of the summary of the evidence: "1246 Mr Brook gave evidence that Moses Obeid then said 'Paul, I mentioned to Gardner in our first meeting about our property and, you know, that we have a coal ‑ we think we have a coal resource there' after which Paul Obeid confirmed that 'they had every reason to believe that there was a large coal resource underneath their property'. The meeting which followed was led by Paul Obeid, but Moses Obeid was an active participant. Gerard Obeid contributed very little to the meeting. 1247 Mr Brook gave evidence that at this point Paul Obeid produced a number of maps from a cardboard tube. Whether the Crown would be permitted to adduce evidence from Mr Brook to seek to establish that Wiles Map 2 was one of the maps was the subject of legal argument in the trial. 1248 The issue was foreshadowed prior to Mr Brook giving evidence. … 1249 The Crown prosecutor informed me that the production of the maps from the cylinder and the size of those maps were foreshadowed as evidence the Crown proposed to adduce from Mr Brook. His evidence that some of the maps were in colour, including one map (the larger of the two) which depicted a red cross-hatched area was also foreshadowed. 1250 It was those particular features of the larger map, together with Paul Obeid pointing out the location of the Obeids' property on it, and what was said by Paul Obeid to be the coal-rich area adjacent to their property, which the Crown submitted supports a finding that Wiles Map 2 was the larger map Mr Brook was shown at that meeting. 1251 Mr Neil objected to the admission of that evidence, broadly on the ground that it would be productive of unfairness to the accused since it would be inevitably 'tainted' by Mr Brook having been shown Wiles Maps 1 and 2 and given information about them during the course of the ICAC proceedings. 1252 During legal argument, I observed that it could not be disputed that Mr Brook's evidence in the trial in 2020 was given in the context of a raft of leading questions asked of him in the ICAC proceedings in 2012, and information about the provenance of Wiles Maps 1 and 2 which was given to him at that time, and later in interviews with ICAC investigators where he was 'led' to confirm his evidence and to elaborate upon it."

The following passages in the judgment are relevant in this respect: "1321 In closing submissions, the Crown invited me to be 'cautious' in my assessment of Mr Brook's credibility and reliability. In that connection, the Crown referred, in particular, to the effects of a frontal lobe contusion as the result of a head injury Mr Brook suffered in 2010 which he claimed had caused issues with his memory in the past but from which he had completely recovered by the time he gave his evidence. The Crown also referred to Mr Brook's use and abuse of alcohol which continued through to 2016. The Crown also accepted that, in the course of giving evidence in the Federal Court in April 2016, Mr Brook admitted he was prepared to lie when it suits his purposes to do so. … 1768 In his cross-examination of Mr Brook, Mr Neil sought to characterise him as a notoriously dishonest individual. Mr Brook accepted that he dishonestly misrepresented the quality of his tertiary qualifications to Moses Obeid by claiming he was a graduate of the University of Chicago Booth School of Business. He also accepted he published a false curriculum vitae and would, on occasions, make false statements in the context of trying to persuade a person or organisation to do business with him. 1769 He also admitted that he (more than likely) told deliberate lies to the Winslow Clinic when he told them he had stopped drinking alcohol as at 13 October 2012 since his problematic drinking continued well after that date. He also agreed that whilst he was under the influence of alcohol (which he accepted was frequent to the point of chronicity during the course of his dealings with Moses Obeid - and it must be assumed in the course of his dealings with Mr Rampe, Mr Grigor and Cascade Coal P/L) he quite often told deliberate lies. 1770 He also agreed in cross-examination that he might have been drunk during the course of at least one of the Wentworth Hotel meetings. He did not, however, admit to telling any lies in either of the meetings; neither was it put to him that he did."

With respect to the proposed warning, the judge stated: "1322 In the ultimate, however, the Crown resisted the submission advanced by defence counsel that I should give myself a warning under s 165 of the Evidence Act (in the manner provided for in s 133 of the Criminal Procedure Act where I am sitting without a jury). The Crown submitted that what I would find as generalised concerns about Mr Brook's reliability, and the need for caution in determining whether to accept his evidence did not ultimately diminish the weight I should give his evidence in circumstances where it was, in large part, independently supported by the evidence in Exhibit A. 1323 The Crown also resisted the submission advanced by defence counsel that I should give myself a direction akin to a warning about the unreliability associated with identification evidence in s 165(1)(b) of the Evidence Act (in this case the identification of an inanimate object) as concerns Mr Brook's evidence about the larger map he said he was shown at the second Wentworth Hotel meeting, despite his description of that map being critical to the Crown case that the larger map was Wiles Map 2, a finding of fact critical to proof of the fourth act of misconduct. 1324 As I observed from time to time during the course of the trial, the parties have had to contend with the fact that there was an extensive investigation by ICAC of Mr Macdonald's conduct as Minister and the conduct of Edward Obeid and Moses Obeid as landowners by at least November 2011 when the search warrant was executed by ICAC investigators at the Locaway P/L premises. That investigation ultimately culminated in both public and private hearings in 2012 presided over by the Hon David Ipp AO QC as the ICAC Commissioner. In those proceedings the rules of evidence did not apply. In the result there was no prohibition on counsel assisting asking leading questions or inviting witnesses to comment upon the evidence of other witnesses or indeed asking a witness to direct their attention to what the Commissioner wanted a particular witness to give evidence about. I have had occasion to remark upon the impact of those proceedings upon curial trial process in the Crown's application to tender the evidence of Mr Fang. I have also noted the content of some of the leading questions asked by counsel assisting the Commissioner and the Commissioner himself when considering the weight to be attributed to the Crown's cross-examination of Mr Mullard with leave under s 38 of the Evidence Act referable to evidence he gave before ICAC. 1325 There can be no doubt that on 8 March 2012 when Mr Brook was served with a summons to attend a compulsory examination at ICAC he was aware that he was under investigation. He gave evidence of that fact and the fact that he saw Mr Fox as someone who had the capacity to influence the outcome of what he described as 'his future' with respect to how the Commission viewed his evidence. Although Mr Brook claimed no recollection of a telephone conversation with Mr Fox on 18 May 2012 (after he had given evidence in the private hearing) in which he enquired whether he was in ICAC's 'gunsights' and where he offered himself as an 'ally', I accept that conversation occurred. 1326 The evidence also establishes that on 6 August 2012 Mr Brook again spoke with Mr Fox indicating that he had further information to assist the Commission, in the course of which he described the Obeids as 'corrupt' and that 'they knew the 'Cascade guys'' and, further, that on 15 December 2012 Mr Brook emailed Mr Fox stating, 'I want to help as much as I can to nail these crooks'. 1327 I am of the view that Mr Brook's 'improved' memory of the second Wentworth Hotel meeting, in particular between giving evidence in the private hearing in March 2012 and giving evidence in the public hearing in November 2012 in circumstances where, in the interim, he was interviewed by Mr Fox at length, does warrant giving myself a warning of the risks that are attendant upon an investigator, even with the best intentions, suggesting to a prospective witness the information that person might provide. That applies most obviously in the case of a witness who is either vulnerable to suggestion or inclined to take up a suggestion offered to them, whether in doing so they are motivated by a genuine desire to assist investigators or to ingratiate themselves with investigators. Each of those scenarios was potentially at work in Mr Brook's dealings with Mr Fox. 1328 Having given myself that warning, what seems to me to be significant in determining the weight to be given to Mr Brook's evidence concerning the 'larger map' produced at the second Wentworth Hotel meeting, is his unprompted reference to the 'contiguous area' on the map when he was interviewed by Mr Fox, after the private hearing and before that issue was pursued by counsel assisting in the public hearing some months later. The evolution of that aspect of his evidence, without any prompting or suggestion from Mr Fox, in my view, goes some considerable distance in resolving the concerns I would otherwise have had about the way Mr Brook's evidence concerning Wiles Map 2 was gathered during the course of the investigation, including various promptings given both by the investigators and later by counsel assisting the Commissioner about that map and its distinctive features, and the impact of their promptings upon the reliability of Mr Brook's evidence at the trial concerning the map. 1329 In the result, while there was a real risk of Mr Brook's memory being contaminated by what he was told about the larger map, including, most critically, being told by counsel assisting that both Wiles Maps 1 and 2 were located in the course of the execution of a search warrant at the Obeids' commercial premises in 2011 and that, in the view of counsel assisting, there were distinctive features of the larger map, coupled with the particular danger that Mr Brook's memory of having seen the map was promoted by those suggestions or even a false memory asserted, I regard his evidence of what was said at the second Wentworth Hotel meeting about the contiguous or adjacent area or zone referable to the red coloured hatching in the shape of the sideways S-shape as reliable and ultimately compelling evidence probative of the fact that he was shown Wiles Map 2 at the second Wentworth Hotel meeting."

In numerous ways, some of which have been identified above, the judge rejected much of Mr Brook's evidence as unreliable or disingenuous. However, Mr Brook himself accepted that he had been dishonest in numerous respects. [150] He agreed that he might have been drunk in the course of one of the Wentworth Hotel meetings, but did not admit to telling lies in either of the meetings, "neither was it put to him that he did". [151] The judge made further adverse findings in the following terms: "1773 In my view, Mr Brook was, at all times in his dealings with various individuals and entities the subject of his evidence at the trial, motivated to secure the best possible financial outcome for himself as he endeavoured first to broker an arrangement between Moses Obeid (ostensibly representing 'the landowners') and Monaro Mining NL despite the obvious and dwindling prospects of attracting a financial investor to back Monaro Mining NL's bid, and then as he negotiated the withdrawal of Monaro Mining NL's bid and the entre of Cascade Coal P/L as the contracting party with Buffalo Resources P/L. That is not to suggest his financial motives make him an unreliable witness. Rather, it was his steadfast refusal to admit the venality of his motivations and his duplicity in his dealings that is adverse to his credit. 1774 I am also satisfied that Mr Brook continued to repeatedly and deliberately misled the executives of Monaro Mining NL and through them the Board of Monaro Mining NL after Lehman Brothers collapsed and after he persuaded the company to enter into an exclusive consultancy agreement with him so that he might continue to work to attract the necessary financial backing from foreign investors to enable Monaro Mining NL to pursue its application for an EL at Mount Penny. It is adverse to his credit that throughout the term of that consultancy agreement he again positioned himself to maximise the continuity of his relationship with Moses Obeid, and what I am satisfied must have been Moses Obeid's promise of a financial stake in the outcome, even if there is no direct evidence of it, at the expense of Monaro Mining NL to whom he owed contractual fealty under the consultancy agreement."

After referring to his "capacity for mendacity" and the "patent evidence of his duplicity", [152] the trial judge then concluded: "1777 That is principally because in proof of the facts that are in issue in the trial, namely the existence of the conspiracy and the participation of each of the accused in that conspiracy, the Crown only relied upon aspects of Mr Brook's evidence which I am satisfied are sufficiently supported by evidence, largely documentary evidence, independent of his testimony. That is not to say the Crown did not adduce evidence from Mr Brook where the documentary evidence would have been a sufficient basis to establish a course of contractual negotiations in which either or both of Monaro Mining NL or Cascade Coal P/L were engaged. It is merely to emphasise that his evidence was of critical importance to the Crown case where the documentary evidence, for one reason or another, did not reveal the complete course of the dealings in which Moses Obeid was intimately involved from mid-July 2008 with Monaro Mining NL, through to and extending beyond the timeframe of the conspiracy, as Moses Obeid continued to pursue the financial rewards he must be taken to have expected were inherent in the granting of an EL at Mount Penny to a mining company with whom he and his family would be contractually bound, even if at that time the quantum and the realisation of those rewards were contingent upon coal being discovered after the granting of a licence to that mining company. 1778 As I have already emphasised, Mr Brook's evidence was critical in proof of a number of other critical issues, including: (a) His evidence concerning the large map that was produced at the second Wentworth Hotel meeting on 7 July 2008, on the Crown case Wiles Map 2, and which was the subject of animated discussion in which Moses Obeid actively participated. That evidence was critical in proof of the fourth act of misconduct which, for the reasons given, I found established. (b) His evidence that Moses Obeid provided him with the handwritten list of companies two days after that meeting which facilitated his approach to Monaro Mining NL, on the Crown case a list that was compiled by Moses Obeid after having been provided with the list (or the information on it) by Mr Macdonald. That evidence was critical in proof of the seventh act of misconduct which I also found established. (c) His evidence that Moses Obeid provided him Schiavo Map 3 and on the page with the heading Medium Coal Allocation Areas, critical to proof of the eighth act of misconduct which I also found established. (d) His evidence that Moses Obeid was the source of information that the EOI process was being reopened to allow the 'White Group' of companies (including Cascade Coal P/L) in proof of the ninth act of misconduct. Although I did not find that act of misconduct established, Mr Brook's evidence provided the context in which I am satisfied Cascade Coal P/L entered into the EOI process for the grant of an EL at Mount Penny and the basis upon which I am satisfied Moses Obeid initiated commercial dealings with them."

On 30 June 2008, Mr Moses Obeid attended a meeting at Mr Rumore's office introducing Mr Fang of the Tianda Group as a replacement for the proposed arrangements with the Boyds. [171] "1164 On 30 June 2008, Moses Obeid attended a meeting with his brothers at Mr Rumore's offices. As noted earlier, from that time Moses Obeid was also treated as Mr Rumore's client in the sense that he treated instructions from one of the Obeid brothers as instructions from all three. Mr Fang of the Tianda Group also joined the conference after a preliminary conference between Mr Rumore and his clients. 1165 On that occasion, Mr Rumore was informed by Moses Obeid that the prospective arrangement with the Boyds, discussed with his brothers a week earlier, was not proceeding and that the Tianda Group would be the new contracting party. A new commercial structure was proposed. It included a special purpose vehicle incorporating a unit trust, under which a 40% interest in the two properties to be acquired would be held by the Obeids and 60% by Tianda Resources P/L.[1096] The purchase price for both properties was to be advanced by the Tianda Group.[1097] The agreement reflected an intention that, together with Cherrydale Park, the two additional properties purchased under the unit trust would be purchased by an 'offshore company'[1098] and 'developed together for coal'[1099] and that 'Tianda Coal (Australia) P/L' would 'bid for [a] coal lease'. … 1170 Although not submitted expressly, as I understand the Crown case, Mr Macdonald introduced Mr Fang and Moses Obeid at a time when the Obeids' interest in exploring the prospect of a joint venture with a mining company had been piqued by Mr Macdonald providing them with information about the creation of the Mount Penny Coal Release Area after the 6, 16 and 17 June 2008 meetings. The Crown relied on what it described as the 'coincidence of contact' between Mr Macdonald, Mr Fang and Moses Obeid in this timeframe to support proof of the fact that it was Mr Macdonald who made the relevant introduction and for that purpose."

What was not decided in Filiippou, perhaps because it was not necessary, was whether each of the alleged errors was an error in determining a necessary element of the defence of provocation. The joint reasons had earlier explained that "[t]he third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial". [207] However, Gageler J, who wrote separately, did address this point in principle: "85 Under the third limb, … the trial judge's finding of guilt must be set aside (subject again to the proviso) if the Court of Criminal Appeal concludes, for some reason not already covered by the first or the second limb, that there was a miscarriage of justice. There is no reason in principle why an error of fact in arriving at an intermediate finding of fact, which is disclosed by the reasons for judgment of the trial judge, should not be characterised as a miscarriage of justice if that error might reasonably have affected the ultimate finding of guilt. 86 The observations in Simic v The Queen [208] , directed to review under the third limb of a 'misstatement of an important matter of fact' [209] which a trial judge made in a direction to a jury, can in my view be applied to review of an error of fact made by the trial judge in a trial by judge alone. Having made the point that the onus rests on an appellant to show that a misstatement of fact amounted to a miscarriage of justice, the unanimous judgment in Simic continued: [210] 'Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected. Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.' 87 Where, in an appeal against conviction following a trial by judge alone, it is argued that the reasons for judgment of the trial judge disclose an error of fact in the way in which the trial judge reasoned from the evidence to make an intermediate finding of fact on which the trial judge relied in arriving at the ultimate finding of guilt, I cannot see how the appellant can discharge the onus of establishing a miscarriage of justice under the third limb unless the appellant can persuade the Court of Criminal Appeal of two things. The first is that the trial judge did make that error of fact in arriving at an intermediate finding of fact. The second is that, having regard to the gravity of the error of fact and the strength of the case against the appellant, it was reasonably possible that the trial judge might not have arrived at the ultimate finding of guilt if the trial judge had not made that error." (Emphasis added)

The evidence provides strong support for the conclusion that Mr Macdonald was responsible for creating a coal release area which covered the property owned by the Obeid family and the two northerly neighbours. In ordinary parlance, he directed the creation of the coal release area. He did so over departmental opposition and in the face of a perceived public interest in maximising the funds available from the exploitation of coal resources in New South Wales. It was also done in the face of departmental views that more exploration should be undertaken in order to identify the extent of the resource and a departmental belief that the more valuable resource was to the west. An inference that the action was taken in order to benefit the Obeid family may readily be drawn from this evidence. Further support for that inference may be derived from the almost daily contacts between Mr Macdonald and Mr Obeid Snr from the end of May until late June. These contacts included a lunch on 2 June, a telephone call on the evening of 4 June, telephone contact on the evening of 5 June, and further telephone conversations on three occasions on 10 June, On 11 June there was a breakfast meeting and then contacts between Mr Moses Obeid and Mr Obeid Snr at midday, 1.39pm and 4.07pm, and a further telephone call from Mr Obeid Snr to Mr Macdonald at 4.27pm. Mr Obeid Snr contacted Mr Macdonald at midday on 14 June, and Mr Macdonald contacted Mr Obeid Snr at 12.37am on 15 June and again at 10.03am. Twenty minutes later Mr Moses Obeid contacted Mr Obeid Snr. On 16 June Mr Moses Obeid contacted Mr Macdonald at 7.08am and Mr Macdonald contacted Mr Obeid Snr at 7.41am. Apparently following a meeting on 16 June at midday, Mr Macdonald contacted Mr Obeid Snr at 12.15pm and at 12.46pm. Mr Moses Obeid called Mr Macdonald at 12.17pm and Mr Obeid Snr contacted Mr Macdonald at 5.14pm, the call being returned at 5.35pm and at 6.07pm. Mr Macdonald had dinner with Mr Moses Obeid and Anthony Cummings at 6.30pm on 16 June. At 9pm, Mr Moses Obeid contacted his father.

Mr Brook was cross-examined by counsel for Mr Moses Obeid with respect to his mental health, an injury he suffered in 2010, a disposition to lie and a period of alcoholism. While, with minor exceptions, Mr Brook accepted all that was put to him, it is necessary to recognise the full extent of the cross-examination, commencing with evidence he had given in the Federal Court in April 2016: [289] "Q. Do you recall being asked this question…: 'Q: Alright, so is it the case that from time to time, when it suits your purposes, you are prepared to lie? A. It is true that I sometimes, on occasion, usually under the influence of alcohol, said things which were not true. Yes, that's true.' Q. Do you remember giving that answer? A. Yes. Q. And was that answer correct? A. Yes. Q. And were you asked also whether or not you had from time to time published false curriculum vitae to business people; do you recall being asked about that? A. Yes. Q. Were you asked this question: 'Q. It is the fact that you have published from time to time false curriculum vitae to business people? A. That is true.' Q. Was that answer true? A. Yes. … Q. Did you agree with the proposition … that you sometimes have problems with alcohol? A. Yes. Q. And were you asked this question: 'Q. But is one of those problems that alcohol makes you lie? A. Yes.' A. Yes. Q. Was that correct? A. Yes. Q. Did you tell the Obeids, or any member of the Obeid family, that you were a qualified lawyer? A. No. Q. Did you tell the Obeids that you had qualified at law school? A. No. Q. Is it the case that you misled the Obeids as to what law course you had done at Monash University? A. No. Q. Well… on 7 April, I want to suggest this to you, you were asked some questions about qualified lawyer. One question was this: 'Q. And you did tell the Obeids that you were a qualified lawyer, didn't you? A. I believe I did. Yes, I lied.' Q. Do you stand by that answer? A. No, I don't. Q. Was it true that you gave that answer on oath in the Federal Court? A. It was true but that is not the case. I never made that representation to them. Q. Why did you give that answer in the Federal Court on oath? A. I - honestly, I don't believe I was thinking straight that day. … Q. Just to get it clear, is it the fact that you sat one law subject; is that right? A. No, I - to finish my Bachelor of Business degree I had to finish one more unit, so I did Industrial Law at the University of Melbourne, but I had enrolled as a graduate entry in 1999 in the Bachelor of Laws at Monash University but I did not complete that course. Q. Is it correct that at least in one version of your curriculum vitae, you had published that you had read law at Monash University? A. Yes, I've admitted that publicly, yes. As well as under oath, yes. … Q. You have, as I understand it, agreed that you have had problems with drugs and alcohol, is that correct? A. Prescription drugs and alcohol, that is true, yes. Q. And you are aware are you not, that you have been examined in respect of problems that you have had by medical personnel at Winslow Clinic in Singapore, is that right? A. I initiated the contact and the treatment, yes. … Q. And you, amongst other things, reported that during the period in 2008 you were under tremendous stress and anxiety in your work, is that right? A. Yes. Q. Did you report that during the period of the financial crisis in 2008 you had what you described as 'ups and downs financially'? A. Yes. Q. Did you report that you had slashed your forearm with a knife during the Lehman Brothers' financial crisis in 2008? A. Yes. Q. Had you done that? A. Yes. Q. Was it because of stress and anxiety. A. Yes. Q. Was it around about the time of July, August, September 2008? A. I believe it was September. Q. And did you also report that after a drinking binge sometime in 2010, you had a fall where you hit the back of your head resulting in a frontal lobe contusion? A. I had a very wet lunch, that's correct, and I slipped and fell and hit my head. Q. Did you report that since the head injury, you were suffering from retrograde and anterior grade amnesia? A. It took me - took me some time to regain my faculties, that is true. Q. Did you report that you had an inability concentrate? A. Yes. Q. Did you report that you had behaviour changes like greater irritability and disinhibition/impulsivity? A. Yeah, they're all very classic symptoms of frontal lobe contusion, yes. Q. Were you aware of a neuropsychological report and brain scan which confirmed findings of your cognitive impairment? A. Yes. Q. Did you report that you self-medicated with prescription drugs from a psychiatrist? Did you report that? A. Yes, sir. Sir, and you will notice they report, sir, that I provided all of that information to the psychiatrist. Q. Did you also report that you took alcohol for depression and anxiety as a result of the head injury? A. Yes. Q. Were you subject to a test [called] Beck Depression Inventory test? A. Yes. I remember and I was on the very severe side of things apparently. … Q. Can we take it that during the time of 2008, when you were meeting with members of the Obeid family, you were during that period drinking heavily, do you agree? A. I would - yeah, I think so, yeah. I think - I would be inaccurate to say that I wasn't a heavy drinker back then, that's right. Q. Did your heavy drinking continue until the conclusion of dealings with members of the Obeid family, which I think you put it sometime in 2009? A. I was struggling with alcoholism, yes, so I would say I was definitely still experiencing difficulties with respect to my drinking, yes. Q. Did you report to the clinic that you stopped drinking completely on October 13, 2012? A. Yes. Q. Have you been drinking at all since that time? A. The last time I had a drink was at Christmas time last year, a glass of champagne. Prior to that, not for six months. And I'm dry, completely dry. … Q. Do you still suffer from frontal lobe contusion? A. No. Q. How do you know? A. I know because I'm able to effectively carry out my work now and my memory - not just with this matter, I might add, but certainly with my family and past - is much, much better and my moods swings have stopped and I am able to live a consistent life which I admit previously I had not. Q. Would you agree with the proposition that you have, in this Court, reconstructed matters from memory of interviews or hearings at the ICAC? A. No, I don't accept that, sir."

Mr Fox then diverted to an entirely different question relating to visits to the Obeid premises at Drummoyne before returning to the topic: [292] "Fox: So just to clarify that map, that was - can you just clarify where you saw it again? Brook: I believe it was at the Wentworth. Now that map, I didn't know where it came from. I assume they got of Mick [sic]. Can I clarify something? In the press they have made me out as being a resource expert, alright. I'm not. The first resource deal I ever did or tried to do was this. I was learning as I went. So when I say that map I thought they'd got it of [sic] some sort of, you know local thing but, did you want me to explain that map to you a little further? Fox: No, no its alright, its just - Brook: I'm happy to if you want. Fox: In the context of you - Brook: No not that one, the other one. The reason why he showed me the map okay, the reason why he showed me the map was apparently his property is in here somewhere. Fox: You pointed to the Mount Penny area obviously at Bylong. Brook: Yeah and then there is a contiguous, as I mentioned contiguous. See this just looks like something they got of [sic] a website or whatever. So they pointed to this but then they said you know what [long pause] ah what is it - they think there's a much bigger resource here and that's the contiguous area and that's why within this it refers to other areas or you know - Fox: And also in the deal that you signed with Cascade? Brook: Yeah that's right, exactly. But I was of the understanding that they had - I mean I did not know, I still don't know how they got the, got that map but I was of the view because they told me they'd been engaging geologists and they'd been engaging consultants to understand the area. Fox: And just for the sake of clarity again - when you were shown that map that was before Monaro submitted its applications? Brook: Yes it was. Fox: Was it before Monaro been invited? Brook: [Long pause] I'm not sure. Fox: When you met at the Wentworth, was that something, was that a, was that a trend of meetings that ceased at a particular point? Did you stop meeting there and then revert to meeting at the premises at Drummoyne or ? Brook: No, no, no it was just - I was at Governor Phillip Tower and it was just convenient to catch up for a coffee. I mean most of the time - Fox: So how many times, how many times did you meet Moses at Wentworth hotel?"

After then identifying the circumstances in which the interviews were conducted, namely the commencement of a public inquiry by the ICAC on 12 November 2012, the terms of which were set out at [1972], the judge continued: "1975 Having reasoned to the conclusion that Moses Obeid was a participant in the conspiracy charged, including, but not limited to, what he has been shown to have said and done as overt acts in furtherance of the conspiracy, it is sufficient to emphasise what I consider to be the most egregious lies told by him, lies which I am satisfied were told with a 'consciousness of guilt' and a fear of the truth being revealed. Those lies principally concern his dealings with Monaro Mining NL and the involvement of Mr Brook and include the following: (1) Monaro Mining NL, via Mr Brook, was the source of the information about the EOI process commencing in late July or early August 2008. (2) He met Mr Brook because he wanted someone to assist with the negotiations with Anglo American P/L as to the 'exit strategy'. Meanwhile, separately, Mr Brook was speaking to Monaro Mining NL. (3) The Obeids had nothing to do with Monaro Mining NL or their EOI application or with the tender process as they wanted to 'remain out of it'. (4) The Obeids told Mr Brook that they were happy to remain as landowners and wait for him to return with a deal and if Mr Brook could not pay for the land then the Obeids would do a deal in relation to the land in order to get equity in the deal. 1976 It is clear beyond question that Moses Obeid was aware of an imminent EOI process which would include Mount Penny before his first meeting with Mr Brook on 3 July 2008. It is equally clear that Moses Obeid's dealings with Mr Brook were in relation to a joint venture, first with Monaro Mining NL and then Cascade Coal P/L, and that Moses Obeid provided the list of companies to Mr Brook which facilitated his approach to Monaro Mining NL. 1977 I am also satisfied that until the first Wentworth Hotel meeting Mr Brook was ignorant of the forthcoming EOI process. I am also satisfied that he had no relevant experience in the mining sector in New South Wales, and no knowledge of coal companies in New South Wales who might apply for the grant of an EL until Moses Obeid provided him with the list of companies the DPI proposed as invitees to that process. Furthermore, the evidence that Mr Brook kept Moses Obeid apprised of all his dealings with Monaro Mining NL, and that Moses Obeid instructed Mr Rumore in relation to the Share Option Deed between Voope P/L and Monaro Mining NL (pursuant to which the Obeid family via the interposition of Voope P/L, a company the Obeid family controlled, sought a share in the mining venture) clearly establishes Moses Obeid was concerned to ensure that control over Monaro Mining NL's successful tender for the Mount Penny Coal Release Area would vest in his family. 1978 I am satisfied that the lies listed above were deliberately told by Moses Obeid to conceal his family's interests in the Mount Penny EL; their dealings with Monaro Mining NL in that connection; the role Mr Brook played in those dealings; his knowledge of Monaro Mining NL's application for the grant of an EL over the Mount Penny Coal Release Area; and the source of that knowledge."

Macdonald, Ian v R; Edward Obeid v R; Moses Obeid v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (65 paragraphs)

Legislation Cited (7)

Cases Cited (90)

Cited By (5)