R v Macdonald; R v Edward Obeid; R v Moses Obeid

Supreme Court of NSW|2019-12-09|Before: Fullerton J, McClellan CJ, Hislop JJ

Judgment

HER HONOUR: The joint trial of each of the accused is listed to commence before me, as the trial judge with a jury, on 10 February 2020.
The indictment charges that: Between about 1 September 2007 and about 31 January 2009 at Sydney and elsewhere in the State of New South Wales, conspired together that Ian Macdonald in the course of or connected to his public office as Minister for Mineral Resources would wilfully misconduct himself, without reasonable cause or justification, by doing acts in connection with the granting of an exploration licence at Mount Penny NSW: (a) without impartiality on the part of Macdonald; and/or (b) in breach of Macdonald's duties of proper confidentiality; and (c) concerning the interests of Edward Moses Obeid, Moses Edward Obeid, and/or their family members and/or associates, such misconduct being serious and meriting criminal punishment having regard to the responsibilities of the Office and the Officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.
By notices of motion filed on 22 November 2019 each of the accused seek an order that they be tried by a judge sitting without a jury pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) ("the Act").

The legislation

The requirements set out in ss 132(6), 132A(1) and 132A(2) of the Act for the making of the applications have been met.
The Crown did not consent to orders that the accused be tried without a jury. Accordingly, I may only make an order for a judge alone trial if I am satisfied that it is in the interests of justice to do so (s 132(4) of the Act).
Section 132(5) of the Act provides that an order for a trial by judge alone may be refused where the trial will involve a factual issue that requires the application of objective community standards.
In R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 at [100], McClellan CJ at CL (Hidden and Hislop JJ agreeing) said of s 132(5) that Parliament has made plain by the enactment of s 132(5) that it would be preferable, in the interests of justice, that there should be a trial by jury where an alleged offence involves the application of objective community standards.

The offence of wilful misconduct in public office

One of the elements of the substantive offence of wilful misconduct in public office is whether the misconduct, if proved, is sufficiently serious to merit criminal punishment. That determination is made objectively by the tribunal of fact according to community standards.
How a jury might be directed in their consideration of that element was explained by Bathurst CJ in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [222]-[223]: It must be shown that the misconduct is so serious as to merit criminal punishment, as distinct from civil remedies such as damages (where the tort of misfeasance in public office applies), parliamentary sanction, or for that matter, public condemnation. It has been consistently accepted that to explain this element of the offence to a jury, it is helpful to refer to the fact that it is necessary to conclude that the conduct amounts to an abuse of public trust in order to satisfy the element. The trial judge in his summing-up expressly pointed this out to the jury, stating that "[t]he misconduct must be so serious that it amounts to an abuse of the public's trust in the office holder". In addition, the trial judge emphasised what public objects Members of the Legislative Council serve.
The accused are jointly charged with having agreed, with each other, that Mr Macdonald would wilfully misconduct himself in the course of or connected to his public office as Minister for Mineral Resources (in a particular way for a particular improper purpose), knowing that such misconduct was so serious that it merited criminal punishment. Accordingly, as with the substantive offence of wilful misconduct in public office, an element of the conspiracy to commit that offence requires proof of a factual issue that calls for the application of objective community standards as provided for in s 132(5) which is to be proved according to community standards. That is, it will be for the tribunal of fact to determine not only whether each of the accused agreed with each other that Mr Macdonald would wilfully misconduct himself as Minister for Mineral Resources in the way alleged and for the improper purpose alleged, but also to determine whether they each did so aware that Mr Macdonald's conduct was, or would be, so serious that it merited criminal punishment (as distinct from other sanctions, including public condemnation).
I accept that the imposition of a community standard for proof of an element of either a conspiracy that a person wilfully misconduct themselves in public office or the substantive offence that is substratum to a conspiracy to commit that offence would be a factor meriting very considerable weight on the question whether the interests of justice are best served by a jury trial. That was the approach taken by both Johnson J in R v Obeid (No 1) [2015] NSWSC 897 at [87] and Beech-Jones J in R v Obeid (No 4) [2015] NSWSC 1442 at [101].
Irrespective of whether the tribunal of fact is a jury or a judge, proof of that element of the conspiracy charged in this case is unlikely, as I read the submissions of the parties, to prove highly contentious. That is not to say that proof of that element in the context of the conspiracy charged is not without some added conceptual complexity. That fact alone would seem to me to require some reformulation of the directions considered in the extract from Obeid v R [2017] NSWCCA 221 set out above, adding a layer of difficulty to what I consider to be a relatively complex charge of conspiracy.

The evidence

Each of the accused filed supporting affidavits. Moses Obeid's solicitor, Bryan Wrench, swore two affidavits of 22 November 2019 and 6 December 2019, annexing a range of materials evidencing the ongoing media focus on the accused. Mr Macdonald swore an affidavit of 22 November 2019 and his solicitor, Ronald Heinrich, swore a further affidavit of 22 November 2019. Edward Obeid's solicitor, Michael Bowe, swore an affidavit of 5 December 2019.
Alison Graylin, solicitor with the ODPP, swore an affidavit of 29 November 2019 to which she annexed documents of searches undertaken by her and Soo Choi, also a solicitor with the ODPP, of newspapers listed as "Major Australian Newspapers" published in New South Wales through the Westlaw AU Newsroom and also Google Trends, between 25 and 29 November 2019 referable to the names of the accused. The search results were set out in an Excel spreadsheet with accompanying visual representations of those searches. With no disrespect to the work undertaken by them, those quantitative searches do not meaningfully inform the extent to which there is a qualitative impact of the adverse publicity upon which the accused rely in support of their applications for a trial by jury alone.

Submissions

The parties filed comprehensive written submissions in advance of the hearing of the motions.
Although the grounds upon which the order for a trial by judge alone differed between each of the accused, a ground common to each application was what was variously described in counsel's submissions as the anticipated adverse publicity arising from the resumption of public hearings by the Independent Commission Against Corruption ("ICAC") under the auspices of an inquiry known as Operation Aero, and the pending release of the Commissioner's report at the culmination of that inquiry during the trial, coupled with a further and unrelated ICAC inquiry known as Operation Eclipse into the regulation of lobbying, access and influence in New South Wales, which is due to resume public hearings coincident with the commencement of the trial.
None of the accused is involved in either of the current ICAC inquiries and, so far as I am aware, none is likely to be mentioned either directly or indirectly in the evidence to be adduced when the public hearings resume. Their application for a judge alone trial is based upon what they each contend is the very real risk of further adverse reference in the media to Edward Obeid and potentially to Mr Macdonald when the progress of those inquiries is reported upon, and ultimately when the Commissioner's reports are released.
The accused submitted that the risk of the jury being infected by what is anticipated to be intense and adverse media commentary about Edward Obeid and Mr Macdonald is revealed by the nature and extent of highly prejudicial references to each of them in the press coverage of the public hearings in Operation Aero which commenced on 26 August 2019. The intensity and the nature of that publicity was the basis for the successful application by the accused that their trial, due to commence in September 2019, be temporarily stayed (R v Moses Obeid; R v Macdonald; R v Edward Obeid (No 8) (Supreme Court (NSW), Fullerton J, 23 September 2019, unrep).
Despite the disruption to the administration of criminal justice and the cost to the community and the State occasioned by the temporary stay of the trial, regrettably, many of the same media interests have continued to refer to Edward Obeid by a range of highly prejudicial epithets, each of which either directly or indirectly continue to align him with institutional corruption, including repeated references to his previous conviction for wilful misconduct in public office and his pending release to parole after having served a sentence imposed for that offence.

The publicity

On 6 October 2019, in The Sunday Telegraph, in the section headed "The Snitch", journalists Ava Benny Morrison and Brendon Hills, self-styled Law & Order journalists, under the banner head "Arrest all in the family" and under a sub-heading "Cell Block Chess Buddies referred to Edward Obeid and convicted magistrate Graham Curran jailed for indecently assaulting an underage boy are described as 'guests of the same section of Kirkconnell Correctional Centre near Bathurst'". The article went on to say of Edward Obeid (photographed): Obeid, 75, is almost at the end of his minimum three-year sentence for misconduct in public office, related to his failure to disclose his family's business-interests in café leases at Sydney's Circular Quay, while lobbying a senior bureaucrat about the rights of waterfront retailers in 2007 when he was a member of the NSW upper house.
In an entirely unrelated context, on 21 October 2019, in what appears to be a republishing of an article in The Daily Telegraph of 21September 2019, the Australian reported under a banner head "Nobody's girl is in the Limelight, but does she still love the sound of her own voice", the following reference to Edward Obeid was made: Keneally is acutely sensitive about her past and the characters that fill it. This is illustrated by an anecdote from her time as a presenter on Sky News... In 2017, her time as NSW premier returned to the news after corrupt minister Eddie Obeid challenged his conviction for wilful misconduct in public office … "When Obeid filed that appeal, Kristina disappeared for a week," said a person who worked at Sky at the time… "We all reckoned that she simply didn't want to be confronted with it on air. She would get indignant if you ever raised Obeid".
On 6 November 2019, in the online version of The Guardian in a joint report by journalists Ben Butler, Ben Dougherty and Anne Davies, reference was made to a person they described as "the exiled Chinese billionaire Huang Xiangmo" and his desire to have ICAC investigate how $11m he allegedly paid towards a Sydney property "ended up with the Obeid family's former lawyer, Mr Chalabian". Later in the article, Mr Chalabian was said to be a former property lawyer who "held interests for the corrupt Obeid family" and who is currently facing charges of conspiracy to defraud nearly $25 million paid to his former law firm.
Also on 6 November 2019, on the front page of the print version of The Financial Review, in a joint report by Angus Greig, Neil Chenoweth and Edmond Tadros, Mr Chalabian was described as "a former lawyer who previously hid assets for the family of jailed New South Wales labour powerbroker Edward Obeid".
I understand Mr Chalabian will not be a witness at the accused's trial. He will, however, be referred to by name, as will be the law firm Lands Legal, in connection with what the Crown submits was the financial benefit to the Obeid family interests generated as a result of the conspiracy.
The following day, on 7 November 2019, in the online version of The Daily Telegraph, Sally Coates reported the following under a banner head "Corruption Means Iconic Circular Quay Sites Up For Grabs": Two of Sydney's landmark sites are at the grabs for the first time in 40 years and corrupt former labour politician Edward Obeid is to thank.
The article goes on to say: Obeid was convicted of misconduct in public office in 2016 after gaining lucrative leases on the sites secretly owned by his family and in 2007 failing to disclose those interests while lobbying a senior bureaucrat for favourable conditions for tenants. He was sentenced to 5 years behind bars with a non-parole period of three years.
Because of what was referred to by the journalist as "Obeid's dodgy dealings", a retail trader was said by the journalist to be at risk of losing his business.
On November 8 2019, in the "Culture, Celebrity Private Sydney" section of the Sydney Morning Herald, Andrew Hornery reported the following under the banner head "Obeid to return to family fold": Six weeks and counting. That was the message coming from the family of convicted former NSW Labor parliamentarian Eddie Obeid this week as they prepare for his release from prison. Obeid's daughter Rebecca Joumma posted on social media saying: "Only six more weeks… what a life you have lived. What an incredible story to be told. The History, The struggle (sic), The Triumph, The Betrayal and now The incredible courage. Such an incredible human being…such an incredible journey".
With Edward Obeid's release to parole scheduled for 14 December 2019, the accused have, what I regard as, a well-founded concern that the media's apparently insatiable appetite for reporting upon his confinement as a prisoner will focus not merely upon his release from custody and upon the offence which attracted the sentence of imprisonment, the minimum term of which is due to expire, but also his pending trial. The following reports on the day of his successful Parole Board Hearing are the clearest evidence of that fact:

Financial Review, 22 Nov 2019, "Disgraced former minister Eddie Obeid granted parole"
The Sydney Morning Herald, 22 Nov 2019, "Former Labor MP Eddie Obeid granted parole after three years in prison"
The New Daily, 22 Nov 2019, "Former Labor minister Eddie Obeid granted parole after three years behind bars"
7NEWS.com.au, 22 Nov 19, "Ex-NSW minister Eddie Obeid granted parole"
The Guardian, 22 Nov 19, "Eddie Obeid to be released from prison on parole after three years in jail"
news.com.au, 22 Nov 19, "Ex-NSW minister Eddie Obeid granted parole"
The Canberra Times, 22 Nov 19, "Ex-NSW minister Eddie Obeid granted parole"
news.com.au, 22 Nov 2019, "Former Labor MP Eddie Obeid granted parole after serving three years behind bars for misconduct"
ABC News, 22 Nov 2019, "Eddie Obeid granted parole after three years behind bars"
Daily Telegraph, 22 Nov 2019, "Former Labor MP Eddie Obeid granted parole in time for Christmas"
Daily Mail, 22 Nov 2019, "Disgraced Labor minister Eddie Obeid who spent three years in jail after lying for his own financial gain is granted parole and will be home for Christmas"
The Guardian, 22 Nov 2019, "Eddie Obeid to be released from prison on parole after three years in jail"
SBS News, 22 Nov 2019, Disgraced former NSW minister Eddie Obeid granted bail after three years in jail"
skynews.com.au, 23 Nov 2019, "Eddie Obeid has been granted parole"
nine.com.au, "Ex-Labor MP Eddie Obeid granted parole - was jailed for 5 years for misconduct in public office".

The Labor Party review

Each of the accused also expressed concern at what I consider they have fairly anticipated as further publicity about the recently announced independent review of the New South Wales Labor Party, due to commence at the conclusion of the ICAC proceedings into Operation Aero, as also impacting, inevitably and adversely, on their rights to a fair trial before a jury.
Two articles were relied upon as examples of the potential for both Edward Obeid and Mr Macdonald, as former Labor Party parliamentarians, to be referred to in the review by Michael Lavarch, together with media reports about the context in which the review is to be undertaken in highly prejudicial terms, even if only obliquely.
On 14 November 2019, in the online version of the Independent, Chris Haviland, while commenting upon the announcement of the review and some of the submissions that had apparently been received, referred to efforts made to "rid the party of the worst elements of corruption including the jailing of Edward Obeid".
The second article published in the Sydney Morning Herald of 7 December 2019 as an opinion piece by the former Premier of New South Wales, Mr Nathan Rees, was headed, "Ten years after Labor dumped me as premier, it's high time it cleaned up its act". The lead paragraph read: Ten years ago this week, as NSW premier, I stood in front of packed press conference and said I would not hand the state over to the likes of Eddie Obeid. Later that day, my leadership was ended in a caucus vote largely along factional lines.

Operation Jasper

It was submitted, although again with different emphasis by each of the accused, that where a number of the critical facts in issue at their trial have already been publicly determined adversely to them in a previous ICAC inquiry known as Operation Jasper (an inquiry that was the subject of significant media coverage at the time of the public hearings in 2012 and on publication of the Commissioner's report in July 2013), the jury would be at risk of substituting the Commissioner's findings of corrupt conduct for the factual findings inherent in considering whether the Crown has proved their criminal guilt of the conspiracy charged.
I do not regard that factor as carrying significant weight on the application. Were it not for the recent spate of publicity, I would have comfortably concluded that despite the volume and intensity of media coverage of the ICAC hearing in 2012 and the Commissioner's findings in 2013, appropriately crafted jury directions would have sufficiently insured against the risk of either historical media reports or the jury's inquiries into secondary sources influencing either their assessment of the evidence to be adduced at trial, or their ultimate determination of the facts in issue on the conspiracy charge.

The complexity of the trial

Again, although with different emphasis, each of the accused submitted that the complexity of the trial, the volume and scope of the evidence to be adduced by the Crown in proof of its case, and the directions the jury would have to comprehend and apply in deliberating to verdict, dictate that the interests of justice favour a trial by judge alone.
I have from time to time during the course of successive pre-trial hearings expressed concern as to whether a lay jury would be able to deal with both the volume of evidence in this case and the issues of fact raised by that evidence. I have expressed similar concerns about the relative complexity of the directions the jury will be bound by in their deliberations to verdict, including not only the elements of misconduct in public office and a conspiracy to commit that offence, but the application of the co-conspirators rule. I have also expressed concern as to whether a jury will be capable of maintaining focus during the course of a complex trial with an estimate of 23 weeks.
Given the approach I have taken to the evidence adduced on the application, with the overwhelming issue being the risk to a fair trial by adverse pre-trial publicity, the complexity of the trial and the risk that entails in terms of jury management, whilst not immaterial, has not proved decisive.
The same can be said for a range of what I regard as secondary considerations personal to Edward Obeid and Mr Macdonald and whether they impact on the determination of where the interests of justice lie on this application. It is not necessary to set those considerations out in detail. Some of them have already been the subject of detailed consideration (R v Moses Obeid; R v Macdonald; R v Edward Obeid (No 8)). Suffice to note that on Mr Macdonald's behalf and on behalf of Edward Obeid, concerns about their age and ill health and the need for some flexibility in the timetabling of the trial and its process to accommodate those concerns, were raised on this application. A trial without a jury is said to avoid the secondary impact of the need to explain to the jury matters personal to each of the accused or the need, were it to arise, for repeated and unscheduled interruptions to the trial.

Consideration

The concept of "the interests of justice" comprehends different and frequently competing considerations, depending upon the statutory context in which that concept is deployed or where that concept is given expression at common law.
In the context in which the concept appears in s 132(4) of the Act, the balancing of the competing interests of a free press and the right of an accused to a fair trial informs the discretionary exercise that is entailed in determining where the interests of justice lie in this case. It is not, however, confined to those competing interests.
I accept that there is a public interest in the community's continued participation in the administration of criminal justice by the involvement of members of the community in the process of trial by jury. The involvement of the community in that way also carries with it the collateral benefit of the law being in touch with community standards (see R v Stanley [2013] NSWCCA 124 at [43]).
I also accept that public confidence in the criminal justice system is a relevant consideration to be factored into the interests of justice test in the determination of the application of each of the accused for a trial by judge alone. That said, I do not apprehend that there is any diminution in public confidence, or any shift in the expectation of the community that criminal justice will be delivered, where either the parties agree that a trial should be conducted without a jury, as provided for in s 132(2) or, where there is no agreement, a judge is satisfied that it is in the interests of justice that a judge alone trial be convened under s 132(4).
It is not the function of this Court to control the media. A free press is an indispensable ingredient in a democracy as it is to sustaining the rule of law. The fair reporting of criminal trials, including, in some cases, curial processes preliminary to the laying of criminal charges and, on occasions, the reporting of investigations into suspected criminal conduct is, unquestionably, in the public interest. This Court is, however, obliged to ensure that the interests of justice are protected and preserved, including the right of an accused to a fair trial, the hallmark of which is the right of an accused to be tried by a jury of fellow citizens who will bring a collective, unprejudiced and impartial mind to their fact-finding role.
It is not to the point that the accused were unable to cite any authority in this state where it has been held that there should be a trial by judge alone as a result of pre-trial publicity. Neither is it to the point to seek to compare the nature and extent of the sustained attention on the accused in this trial with the degree of attention that might have been given to other accused, in other trials, which have also attracted intense media attention. Each case merits consideration on its own facts.
There are cases where, despite pre-trial publicity that is intensive, strong and highly prejudicial, what has been described as "the fade factor" has resulted in an application to stay proceedings or a judge alone trial being refused (see R v McNeil [2015] NSWSC 357; 250 A Crim R 12, R v Qaumi (No 14) [2016] NSWSC 274; 265 A Crim R 575). This case is, however, in my view, distinguishable from other cases. What I am prepared to accept was the responsible reporting of Edward Obeid and Mr Macdonald's criminal trials in 2016 and 2017, and the facts and circumstances contextual to their offending when convictions were returned and sentences of imprisonment imposed, has not diminished. The recent resurgence of media focus on both Edward Obeid and Mr Macdonald demonstrates that the "fade factor" has no currency on this application.
Despite the operation and importance of s 68C of the Jury Act 1977 (NSW) which prohibits a juror from making an inquiry for the purpose of obtaining information about an accused or about the matters relevant to their trial, including by accessing internet sites or undertaking internet searches, and despite the process of jury selection and empanelment operating as a means of protecting an accused from the risk of the impact of adverse media publicity, the notoriety of the accused Edward Obeid and Mr Macdonald, and the opprobrium with which their affairs continue to be reported upon in the media (largely, it would seem, triggered by the recent ICAC inquiries which are current and continuing), is productive of what I consider to be a very real risk of a prospective juror either being actually infected by the media coverage to date, or an equally real risk that further coverage of matters of public importance where the accused are named, or their conduct referenced, will result in the trial being aborted after it commences.
After taking into consideration the evidence and the competing submissions of counsel, I am satisfied, having regard to the nature and extent of pre-trial publicity about each of the accused, including the long-standing and sustained critical opprobrium of each of Edward Obeid and Mr Macdonald in both the print and electronic media, including the repeated recitation of their respective criminal histories and their damaged political careers, that the interests of justice dictate that the joint trial of the accused should be a trial by judge alone.
Accordingly, I make the following order: 1. Pursuant to to s 132A of the Criminal Procedure Act 1986 (NSW), the joint trial of the accused Ian Michael Macdonald, Edward Moses Obeid and Moses Edward Obeid us to be convened before a judge without a jury.

Amendments 26 May 2020 - Coversheet - junior counsel for M Obeid added 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: 26 May 2020

At a glance

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Judgment (11 paragraphs)

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