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

Supreme Court of NSW|2019-08-01|Before: Fullerton J

Solicitors: Solicitor for Public Prosecutions (Crown) In person (Accused Macdonald) M Bowe (Accused Edward Obeid) Murphy's Lawyers Inc (Accused Moses Obeid) File Number(s): 2015/212910; 2015/214251; 2015/212851

Background

Edward Obeid is jointly charged with Ian Macdonald and Moses Obeid with a common law conspiracy which alleges that between about 1 September 2007 and about 31 January 2009 they each agreed that Mr Macdonald would wilfully misconduct himself as a Minister of the Government of New South Wales in connection with the granting of a coal exploration licence at Mount Penny for the improper purpose of benefiting Edward Obeid and/or Moses Obeid and/or their family members and/or associates.

The various applications for a temporary stay

By notices of motion filed on 21 June 2019 and 4 July 2019, respectively, each of Edward Obeid and Ian Macdonald apply for a temporary stay of their trial based upon their current ill health. Mr Macdonald seeks a stay until 31 December 2019. Mr Obeid seeks a stay until February 2020, by which time it is anticipated he will have been released to parole.
On 15 December 2016, Mr Obeid was sentenced to 5 years' imprisonment with a non-parole period of 3 years following his conviction, after trial, of the offence of wilful misconduct in public office in respect of conduct unrelated to the allegations the subject of the pending trial. His non-parole period is due to expire on 14 December 2019. A parole hearing is scheduled for October 2019.
On 17 July 2019, after Mr Macdonald's legal team withdrew from the proceedings, and without notice to the Court or the Crown, Mr Macdonald made a separate application for the stay of the trial for four months based upon what he contends is the need for him to prepare to represent himself at his trial.
The Crown opposed the applications for a temporary stay by each of the accused on the grounds of their ill health. In the Crown's submission, while the evidence supports a finding that both accused have a number of medical conditions which, when compounded by their age (Mr Macdonald is 70 years of age, Mr Obeid is 75 years of age) have the potential, in differing degrees and in different ways, to impact negatively on their capacity to participate in their trial to an optimal level, that factual premise does not lead inevitably to the conclusion that their trial will be unfair, such that it is in the interests of justice that their trial be temporarily stayed until either December 2019 or February 2020. In the Crown's submission, the trial of both accused can be convened and conducted in August 2019 in a manner which accommodates their particular physical and medical needs.
In the event that the Court is of the opinion that Mr Macdonald ought to be afforded a reasonable time to further prepare to represent himself at his trial, the Crown did not oppose the trial being relisted to commence in mid-September 2019.
In advancing that submission, the Court was invited to find that given Mr Macdonald's familiarity with the evidence upon which the Crown relies to prove the particulars of misconduct central to proof of the Crown case (including by reason of his appearance before the Independent Commission Against Corruption in the public hearings from November 2012, as to which see [11] below), and where he has been represented by senior and junior counsel throughout the pretrial hearings, and by counsel and/or solicitor throughout the case management phase from 4 June 2018, he is in a different position to an accused person who has not had that degree of exposure to the evidence to be adduced by the Crown in proof of guilt, and the assistance and advice of counsel over many years, including senior counsel.

The history of the substantive proceedings

The accused were charged by the issue of Court Attendance Notices in July 2015 following a referral from ICAC to the ODPP consequent upon the publication in July 2013 of a Report by the Honourable David Ipp AO QC, Commissioner, entitled "Investigation into the Conduct of Ian Macdonald, Edward Obeid Senior, Moses Obeid and Others" (an investigation into what was described in the report as the "Operation Jasper segment"). The publication of the Report followed lengthy public hearings between 2011 and 2013.
Only Chapter 1 of the Report, entitled "Summary of Investigation and Results", and the index to the Report were tendered on the stay application. It is, however, common ground that the investigation comprehended by Operation Jasper and the public hearings that related to that operation concerned a range of matters including, relevantly so far as the joint trial is concerned, the circumstances surrounding the decision by Mr Macdonald, in his capacity as Minister for Primary Industries and Mineral Resources, to grant the Mount Penny coal exploration licence; whether that decision was made impartially or subject to the influence of Edward Obeid or members of his family or by agreement with them; and whether Mr Macdonald improperly provided confidential information relating to the expression of interest process in respect of the Mount Penny tenement to members of the Obeid family.
A more extensive review of the matters which were the subject of the Commissioner's enquiry and their coincidence with the matters in issue in the joint trial have already been the subject of comment in an interlocutory judgment (R v Moses Obeid; R v Macdonald; R v Edward Obeid (No 4) [2019] NSWSC 1286). As noted in that judgment, Mr Macdonald was granted leave by the Commissioner to be represented during the public hearings, including the public hearings which focused on his conduct as the Minister at the time of both the expression of interest process and the ultimate grant of the coal exploration licence over the Mount Penny tenement.
Following the issue of Court Attendance Notices and the service of the prosecution brief of evidence, a joint committal hearing was fixed in the Local Court for December 2016. It was later waived. Mr Macdonald was at that time represented by Mr Heinrich, a partner of HWL Ebsworth, and Mr Davidson of counsel. They continued to represent him following his arraignment in this Court on 6 October 2017 until 16 July 2019 when, together with Ms Cunneen SC (who came into the matter in February 2019), they withdrew from the proceedings in the course of the hearing of his application for a temporary stay based on medical grounds.
On their arraignment in October 2017, Edward Obeid and Mr Macdonald appeared via AVL from custody; Moses Obeid appeared in person. A trial date of 4 March 2019 with an estimate of 23 weeks was allocated on that date.
On 2 June 2017 (that is, prior to his arraignment in this Court), Mr Macdonald was sentenced to an aggregate sentence of 10 years with a non-parole period of 7 years to date from 26 May 2017 following his conviction, after trial, for two counts of wilful misconduct in public office, unrelated to the allegations of misconduct the subject of the pending joint trial. His conviction (and that of his co-accused, Mr Maitland) was overturned on 25 February 2019. Both Mr Maitland and Mr Macdonald were released from custody forthwith. Their retrial is listed to commence in this Court on 13 April 2020.
On 4 June 2018, on the Court's motion the trial listed to commence on 4 March 2019 was vacated and relisted to commence on 13 May 2019. The trial has been under my management since 4 June 2018.
On 4 June 2018, a revised case management timetable was fixed to ensure that the Court was in a position to deal with what had been identified by the parties as a range of issues requiring rulings before the trial commenced. In accordance with that timetable wide ranging objections were notified by each of the accused to large parts of the documentary evidence in the Crown tender bundle and to some of the evidence the Crown proposes to adduce from the 52 witnesses on the Crown witness list. A pretrial hearing was convened on 3 April 2019 to deal with those objections.
On 3 April 2019, before the pretrial hearing commenced, I excused Edward Obeid from attending the pretrial hearings. I accepted, on his application, that were he required to attend court each day during the pre-trial hearings, he would be transferred into a city-based Correctional Centre which I was satisfied would result in unnecessary physical stress and mental strain which may compromise his ability to participate in his trial. The Crown did not oppose the application. Mr Barry QC represented Edward Obeid's interests throughout the pretrial hearing. Mr Obeid appeared from time to time via a telephone link with the Kirkconnell Correctional Centre, including on the occasion he gave evidence in support of his application for a temporary stay of the trial until his release from custody.
Mr Macdonald appeared on each day of the pretrial hearing until 9 April 2019 when Ms Cunneen advised the Court that Mr Macdonald was extremely unwell. Without opposition from the Crown, she asked that he be excused from further attendance whilst he was receiving medical attention pending urgent abdominal surgery. I granted that application on the understanding that counsel would be adequately instructed to conduct the pretrial hearings on his behalf in his absence.
A number of rulings were made in the course of the pretrial hearings, many of which were the result of objections taken by Ms Cunneen to particular evidence or parts of the evidence, and after taking into consideration submissions that were advanced by her on Mr Macdonald's behalf.
On 18 June 2019, a number of interlocutory judgments were also published, again many of which refer to Ms Cunneen's submissions advanced on Mr Macdonald's behalf. I have no reason to doubt those judgments have been furnished to Mr Macdonald by his lawyers.
In the course of the pre-trial hearings, a number of statements of fact were agreed by each of the accused, together with a number of schedules prepared in accordance with s 50 of the Evidence Act 1995 (NSW). These documents will be tendered by the Crown at trial. It is clear from the transcript that Mr Macdonald's instructions were sought and obtained before Ms Cunneen advised the Court of his position. This was confirmed by Mr Heinrich, who gave evidence on Mr Macdonald's application for the stay based on his need to prepare for trial, both by way of two affidavits of 3 and 10 July 2019, read without objection, and the evidence he gave under cross-examination on 1 August 2019 when, at the Crown's request, he made himself available by telephone.
I will return to consider his evidence later in this judgment.
It was only when, on 13 May 2019, Ms Cunneen applied to vacate the 11 June 2019 trial date on the basis of Mr Macdonald's scheduled abdominal surgery on 30 May 2019 that the Court was advised that she and Mr Davidson were appearing on a pro bono basis and that they both had competing trial commitments from September 2019. No criticism is intended by that observation. Counsel were under no obligation to inform the Court of the terms of their retainer to act for Mr Macdonald at any time prior to that date, or at all. On that occasion, however, Ms Cunneen foreshadowed the possibility that a stay application might be filed in the future to allow Mr Macdonald to obtain alternate representation should the need arise. Although the Court was advised that counsel appeared pro bono, the Court was not advised that Mr Heinrich, who instructed counsel, was also appearing pro bono and that he could not or might not continue to appear on Mr Macdonald's behalf in the event that counsel withdrew. There the matter of Mr Macdonald's representation rested until almost eight weeks later.
On the vacation of the June trial date, the trial was relisted to commence on 15 July 2019.
After the May trial date was vacated to allow Mr Macdonald to undergo surgery and to allow for a period of post-operative recovery, successive trial dates, including the 15 July 2019 trial date, have been vacated to allow the stay applications, which had been filed in the interim, to be heard and determined. On each adjournment, during the hearing of the stay applications the parties were advised that they should proceed on the basis that the trial, which was by then listed to commence on 5 August 2019, would commence on that date and that they should proceed on the basis that preparations for trial should continue.
On 16 July 2019, after the medical evidence adduced in support of the stay application filed on 4 July 2019 on the basis of Mr Macdonald's illness had been adduced and tested in cross-examination, but at a time before any submissions were advanced by Ms Cunneen addressing that evidence, and without any advance notice to the Court or the Crown, both Ms Cunneen and Mr Davidson withdrew from the proceedings. The Court was not alerted at that time to the fact (as it proved to be the case by 18 July 2019) that not only both counsel, but Mr Heinrich would also withdraw, thereby leaving Mr Macdonald without any legal advice or assistance, inclusive of administrative assistance, at his trial.
One of the questions on this application is when Mr Macdonald was aware of the potential that he would be unrepresented at his trial and what steps he took to prepare to represent himself in the event that his pro bono lawyers withdrew their assistance and representation at what he had known, and for many months, was that a trial would commence no later than August 2019.
On 19 July 2019, I published a preliminary judgment on the stay applications in which I sought information from the Commissioner of Corrective Services as to how it was proposed that Mr Obeid would be managed as a serving prisoner with what I was satisfied were his special medical and physical needs. That information was sought in circumstances where every effort was made by the Crown to obtain the information from Corrective Services NSW (CSNSW) and Justice Health, efforts which were only moderately successful and, in some respects, in circumstances where conflicting information was provided. On 19 July 2019, I also requested an up-to-date medical report from Dr Mak, Mr Macdonald's general practitioner, to allow me to further review the basis for that part of Mr Macdonald's application for a temporary stay based upon his ill health.
On 26 July 2019 I was furnished with information from both sources (as to which see [41] and [66]).
On 1 August 2019, after hearing further argument from the parties (including Mr Macdonald on his own behalf), judgment on the stay applications was formally reserved.

The stay applications

When publishing the interlocutory judgments on 18 June 2019, I directed that in the event that what was foreshadowed at that time as an application for a temporary stay by Mr Obeid on medical grounds was to be pursued, a notice of motion, supporting evidence and an outline of submissions were to be filed. I fixed 11 July 2019 for the hearing of the notice of motion (if filed). I was not alerted at that time to the prospect that Mr Macdonald might also bring an application for a stay of proceedings based on medical grounds.
Each of the notices of motion subsequently filed by Mr Obeid and Mr Macdonald on 21 June 2019 and 4 July 2019 were supported by evidence addressing the medical grounds upon which they contended their trial should be temporarily stayed.
In general terms, as I have already noted, both applications, as filed, were made in the context of the age and ill health of the accused.
Mr Obeid's physical ill health (largely related to his type 2 diabetes) and deficits in cognitive function (largely as a result of his age) were addressed by Dr Henderson, consultant forensic psychiatrist, in a report dated 29 April 2019. That report was supplemented by an additional report dated 31 July 2019.
Mr Obeid also gave evidence on the stay application detailing the regime currently in place at Kirkconnell Correctional Centre according to which he manages his diabetes, including by diet and exercise, a daily injection of insulin and daily monitoring of his blood sugar levels. He also gave evidence that a cataract operation, performed during the pretrial hearings, has resulted in an improvement to his eyesight, although his eyesight is still impaired. He said he has difficulty reading for any lengthy period due to a blind spot in his eye.
Mr Macdonald's application for a stay on medical grounds is limited to his impaired gastrointestinal function. He did not give evidence on the application. He relied upon the reports of his treating doctors and the evidence of Prof Borody, a gastrointestinal specialist.
Mr Macdonald also consulted with Dr Ellard, the Crown's expert gastroenterologist, at the Crown's request on 15 July 2019. Dr Ellard provided reports dated 10 and 15 July 2019 which were tendered by the Crown. Dr Ellard also gave evidence on the application.
The Crown also relied upon affidavits sworn by Alison Graylin, solicitor, of 5 July 2019 and Soo Choi, solicitor, of 10 July 2019. Their evidence was not the subject of any contest. That evidence addressed, inter alia, the various public toilet facilities at Leura railway station, at Central station and at the Darlinghurst court complex adjacent to Court 2, the designated court for the trial.
By letter dated 26 July 2019, a detailed response to a number of questions I posed was provided by the Commissioner of Corrective Services. That information updates the arrangements to be made for Mr Obeid to attend his trial consistent with the work done by CSNSW and Justice Health and Forensic Mental Health Network to provide diabetic inmates with requisite healthcare facilities and services consistent with CSNSW Custodial Operations Policy and Procedures.

The law

Despite the different grounds upon which the applications for a temporary stay were mounted, each of the accused appealed to the inherent power of the Court to direct a temporary stay of their trial to prevent an injustice. The exercise of that power is consistent with the Court's responsibility to avoid any unfairness to an accused by the maintenance of a fixed trial date or, to put it another way, in order to ensure that, if a trial is to proceed by reference to the date fixed for trial, it is a fair trial according to law.
The principles governing the grant of a temporary stay of a criminal trial were recently summarised by Bathurst CJ (R A Hulme and Bellew JJ agreeing) in Macdonald v R; Maitland v R [2016] NSWCCA 306 at [140]: It is well established that the Court has inherent power to direct a temporary stay of proceedings to prevent injustice and that the Court has a responsibility to avoid unfairness to an accused by, if necessary, imposing a temporary stay to avoid such unfairness: Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 at 76; Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 at 47. However, as was stated in X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57, a stay will only be granted to the extent necessary to relieve against unfair consequences: at [91]-[92], [114]; see also Redacted Judgment [2015] NSWCCA 281 at [108]-[110].
Although the observations of Mason CJ in Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 at 33-34 concerned the test of fairness to be applied in the context of a permanent stay, his Honour's observations are also apposite in the context of an application for a temporary stay: The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton, at pp 102, 106; Sang, at p 437; Carver v. Attorney-General (NSW) (1987) 29 A Crim R 24, at pp 31, 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v. Wingo [1972] USSC 146; (1972) 407 US 514; Bell v. D.P.P. (1985) AC 937, as explained in Watson, and Gorman v. Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256, at pp 263-264.

Edward Obeid's application for a stay based on his ill health

Mr Obeid gave evidence on 18 July 2019 that under his current C1 classification as a prisoner at Kirkconnell Correctional Centre he has maintained what I regard as an acceptable level of physical and mental fitness for his age and general health. He informed me that by spending $100 of his weekly allowance on food which he stores in his cell and prepares at meal times, he avoids entirely a prison-based diet which he has experienced as high in starch and processed sugars and which has, in turn, been productive of spikes in his blood sugar level causing fatigue and the potential for a range of physical reactions compromising his capacity for focused concentration.
On the basis of the information provided by the Commissioner, I am informed that while CSNSW does not provide an alternative diet to diabetic inmates, the Corrective Services Industries (CSI) diet menu is provided in accordance with Australian Dietary Guidelines and meets the requirements of Diabetes Australia. I am also informed that Mr Obeid is issued with CSI meals daily and has not voiced to staff at Kirkconnell Correctional Centre that he is unable to consume them. Be that as it may, I note that the items purchased by Mr Obeid according to prison records through his "buy-up" do include various high protein grocery items and a mixture of nuts and seeds. Somewhat curiously, the buy-up also includes various confectionery items and snack food.
From the evidence before me on Mr Obeid's stay application before the updated information was provided from the Commissioner of Corrective Services, I understood that it was proposed that Mr Obeid would be transferred from the Kirkconnell Correctional Centre and re-housed at the Integrated Support Unit (ISU) at the Metropolitan Special Programs Centre, Malabar, for the duration of his trial, and that he would be transported to the court complex at Darlinghurst each day in a prison van with other remand prisoners due to be delivered to various courts in the CBD. Again, before the provision of information from the Commissioner I had no information as to the form of his accommodation at Malabar or its proximity to the clinic where his insulin would be delivered by Justice Health and his blood sugar levels monitored.
The information provided by the Commissioner advises that Mr Obeid will be housed in a single cell and that the clinic is located adjacent to the ISU where his blood sugar levels can be checked prior to his transfer to court and his insulin administered on his return from court. I was also informed that Mr Obeid should speak to Justice Health staff about exercises that may be undertaken in his cell as an alternative to the walking exercise he has been able to undertake whilst at Kirkconnell. I am also informed that whilst buy-up items cannot generally accompany an inmate to court, an arrangement can be made for Mr Obeid to hand buy-up items to his escort staff to convey to the court (for example, canned fish and packets of non-perishables).
I also understood from the evidence before me on the application before the additional information was at hand that Mr Obeid was to be woken each day at 5am, after which time he was to be taken, along with other inmates, to what is described as "the reception room" to prepare for being loaded onto the prison truck no later than 6am with the expectation that he would arrive at the Darlinghurst court complex by 9:30am where he would be housed in the cells for the duration of the trial. The Commissioner advises that a Medical Escort Unit will escort Mr Obeid from Malabar to the Darlinghurst court complex each day, obviating the need for him to be travelling with other inmates. I am satisfied that this will significantly reduce the time he will be absent from Malabar each day. It is proposed that he would be woken at around 6:30am, depart Malabar at around 8am, arriving at court within the hour. I note that whilst it is anticipated that Mr Obeid will be held in the cells at the Darlinghurst court complex, there are legal suites in that complex to facilitate consultation between inmates and their legal representatives. That arrangement may need to be the subject of review during course of the trial.
Mr Obeid gave evidence that he remains concerned that if he cannot maintain the diet that he has adopted under clinical guidance from a nutritionist at the Royal Prince Alfred Hospital for at least the last two years in custody (inclusive of a regime of daily exercise), within a period of weeks he will be unable to participate in his trial in any meaningful way or, worse still, that he will be hospitalised. Whilst I do not discount that Mr Obeid genuinely holds those concerns, after a period of adjustment in his new custodial circumstances and after a period of adjustment to his daily regime as he is required to travel to court each sitting day, those concerns may, and hopefully will, dissipate.
A related issue concerns the opinion expressed by Dr Henderson in his report of 29 April 2019. In that report Dr Henderson sets out the results of a mental state examination of Mr Obeid, inclusive of the results of what he described as a "limited cognitive assessment" of Mr Obeid. While he was satisfied that Mr Obeid's orientation was good, his attention, concentration and short-term memory were impaired. Although he did not consider those impairments severe enough to render Mr Obeid unfit, he expressed concern that the stress, fatigue and sleep disturbance associated with him attending court on a daily basis from custody in the course of a prolonged trial will exacerbate his cognitive deficits and render him prone to cognitive fatigue such that his ability to prepare for each consecutive trial day, instruct his counsel and follow the court proceedings will progressively deteriorate with the risk of him becoming unfit. Again, I am hopeful that the arrangements in place to limit the time Mr Obeid is in transit from custody to court by the special arrangements now in place for his transfer are such that the concerns Dr Henderson expressed in his report do not materialise.
In the report furnished on 31 July 2019, and despite what I assume Dr Henderson was accurately given to understand were the arrangements in place to maintain the existing regime for the maintenance of Mr Obeid's insulin-dependent type 2 diabetes at Malabar, he maintained his view that it is likely that Mr Obeid will experience a deterioration in this diabetic stability and be at risk of experiencing hypo and hyper glycaemic episodes necessitating urgent treatment if he is required to attend court from custody. Although Dr Henderson seemed to be of the view, by reference to Mr Obeid's diabetic chart between 7 and 30 June 2019, that it was the stress associated with the pending trial that has been productive of what he interpreted as an upward trend towards more frequent hypoglycaemic episodes, there is nothing to indicate that Dr Henderson was aware of the full panoply of items purchased in Mr Obeid's buy-up which may be another explanation for the variation in his blood sugar levels.
I am satisfied that the arrangements proposed for Mr Obeid to be transferred from Kirkconnell Correctional Centre; for him to be housed at the Metropolitan Special Programs Centre at Malabar for the duration of the trial; and for him to receive ongoing medical attention for his diabetes and to facilitate the continuation of his own dietary regime are an adequate alternative to the arrangements in place at Kirkconnell, although I understand that Correctional Centre, by reason of its location and design, allows for a greater freedom of movement of inmates than that which obtains at Malabar.

Determination

In the result and, in particular, having regard to the information provided by the Commissioner of Corrective Services at the Court's request, I am not satisfied that, with the proposed arrangements for Mr Obeid's housing at Malabar and transport to court as outlined above, together with the jurisdiction the Court has to ensure that appropriate arrangements are in place for Mr Obeid to be appropriately managed during the currency of his trial given his health concerns, and his age and physical limitations, that his trial will be unfair were it to proceed prior to what is currently considered to be his likely release to parole in December 2019.

Mr Macdonald's application for a stay based on his ill health

Mr Macdonald's application was supported by reports from Prof Borody, his treating specialist gastroenterologist, of 13 May 2019 and 2 July 2019, and a report from Dr Janu, his treating surgeon, of 18 June 2019.
Prof Borody gave evidence on the application.
Mr Macdonald's ill health (as at the date that Prof Borody and Dr Ellard gave evidence on 16 July 2019) is only, in part, the result of a protracted course of recovery after surgery was performed by Dr Janu on 30 May 2019 to repair a large incarcerated left inguinal hernia containing both bowel and bladder and to resect a large lipoma.
In Dr Janu's report of 18 June 2019, he said: I was pleased to review Ian today after repairing a very large incarcerated indirect left inguinal hernia at Strathfield Private Hospital on 30th May 2019. … Since surgery, Ian has made a good recovery. He unfortunately has recently contracted an upper respiratory tract illness which has made his recovery more difficult. Forceful coughing or sneezing causes significant left groin pain. He is trying to limit this. On review today he is moving relatively well without significant limitation. The wound has minimal residual swelling and the underlying repair is sound to testing. I am very pleased with Ian's progress. I have suggested that he should refrain from any significant heavy muscular exertion for at least another four weeks but is able to mobilise gently. I have made no further follow-up appointments at present but would of course be pleased to see him again if there are any ongoing concerns.
This is to be contrasted with the report from Prof Borody which stated that: Mr Macdonald is currently recovering from the surgery rather slowly because of the size and complexity of the operation and still continues to have quite significant pain on walking, coughing or bending over. This will take much longer to recover than I initially expected. I would not anticipate him to be returned to full mobility and functionality before the end of August 2019. It would be very much in his medical interest not to carry or lift objects and certainly not to travel on trains where he has to step up and down stairs at the stations. The avoidance of close crowds would be advisable so there is no one bumping into the area where the wound is healing to cause the hernia to reopen.
When questioned as to the basis upon which he expressed those views, Ms Cunneen advised that there was something of an "ad hoc consultation outside Court" before Prof Borody gave evidence. Later in the course of his cross-examination by Ms Cunneen, Prof Borody said that he considered the abdominal pain to be more nonsurgical than medical. He explained that in the following way: Well, I listen to his story and sometimes I see him in pain occasionally, like this morning, but it's starting to become clear when you put it all together that his underlying condition because of all the laxatives, inability to release his stool anywhere, or pass wind, is giving him a lot of pain with hanging on.
It has proved unnecessary to resolve such conflict as there is between the two practitioners as to the prevalence of post-surgery pain since, on review by Mr Macdonald's treating general practitioner, Dr Mak, as recently as 30 July 2019, there has been no complaint by Mr Macdonald of any compromise in mobility or functionality or any significant residual pain from the surgery. There is a complaint of some abdominal pain and discomfort at night caused by a "build up of wind".
The evidence from Prof Borody and Dr Ellard establishes that Mr Macdonald has suffered from chronic constipation for 30 years, a condition which was exacerbated during the 20 months of his incarceration and which likely led to the need for urgent surgical intervention in May 2019. Although there is no evidence that his chronic constipation was in any way debilitating prior to surgery or, for that matter, that he was treating his constipation with excessive amounts of self-prescribed laxatives at that time, following surgery he has been ingesting large quantities of non-prescription laxatives, in part at least based upon what I accept, having regard to Dr Ellard's evidence, are his legitimate fears that straining or stretching will cause another hernia.
As concerns Mr Macdonald's self-ingestion of laxatives which are the sole cause of his faecal incontinence, Dr Ellard gave the following evidence: Q. Doctor, when you say, as you have confirmed, that he is taking on self‑ingestion Coloxyl and Senna laxatives a day, being 15 in number, and responsive to a desire not to feel the effects of constipation and the associated concern, whether physically or psychologically based, that there will be a return to his pre‑surgical condition, if I can put it bluntly, what would be a moderate dosage of laxatives on a daily basis to address a clinical condition where constipation is evident? A. It does vary from patient to patient, but I have never met anyone taking 15 a day and most people would limit themselves to 1 or 2 a day. That may not always be sufficient and you might have to look at other issues, but 15 a day is a very very excessive amount. Q. And you may not be aware of it, but the Court is aware that that ingestion is entirely responsive to Mr Macdonald's own self‑prescription in effect? They are over‑the‑counter, and you would confirm this, medications and he is not taking them subject to any medical advice? A. I am aware of that. Q. All right. On the assumption, which is a working assumption obviously, that Mr Macdonald was a patient of yours referred from a medical practitioner or, indeed, referred back to a medical practitioner post-surgery, taking into account what you know of his pre‑surgical position and the position in which he finds himself today, what would you consider an appropriate number of laxatives of whatever brand or type to bring the peristaltic action into some sort of balance? A. Well, he has had chronic constipation since puberty, so it is a very long‑standing thing. To be honest, if he was my patient now, what I would do is very gradually withdraw the laxatives so that he wasn't threatened by the sudden reduction in number, so I might go from 15 to 14 to 13 every couple of days aiming at the level where he got a formed motion and then he shouldn't have troubles with incontinence. I would aim for a daily motion, but that doesn't matter as much as the fact that the motion should be soft and if that couldn't be achieved just with the Coloxyl with Senna I would add other laxatives, osmatic laxatives, but I think he's so anxious about it, because there is such a strong connection between anxiety and emotions and the bowel, I would also refer him to a psychologist who specialises in gut issues, and such psychologists do exist, because of the fear. Q. All right. Can I ask you this. Again on the working assumption that Mr Macdonald was your patient and he accepted your insights and advice, would I be right in thinking that on a close monitored reduction in the daily ingestion of laxatives to achieve that balance which you have so helpfully described, something in the order of two or three weeks would be a likely timeframe within which to achieve, certainly not the perfect peristaltic action of a person without a chronic condition, but sufficient for Mr Macdonald not to be in what you identify as urgency and in faecal incontinence which gives rise, of course, to the problems that the Court is trying to deal with. Would two to three weeks do it or are we looking at a longer or shorter timeframe, can you say? A. I would probably opt for three weeks as a practical timeframe. Q. All right. And that would obviously require the active participation of Mr Macdonald as a patient and the ongoing clinical supervision, either in the hands of a general practitioner or reporting through to a specialist by telephone or email as the case may be? A. I believe so.
The ingestion of what I am satisfied from Dr Ellard's evidence is an excessive amount of laxatives (in excess of 15 tablets a day at the time of her consultation with Mr Macdonald on 15 July 2019) has caused recurrent bouts of faecal urgency and some faecal incontinence. In circumstances where, as Mr Macdonald informs me, he has no other means of transport other than public transport to make his way to the Darlinghurst court complex each day from his home in Leura by train and bus, he is stressed and anxious at the prospect of losing control of his bowels on public transport or during the trial.
Mr Macdonald agreed, however, after an opportunity was afforded him to consider the evidence adduced by the Crown from Dr Ellard, that he would attend upon his general practitioner with a view to reducing his daily ingestion of laxatives under a clinically monitored process over a period of two or three weeks, thereby addressing the problem of urgency and the associated risk of continuing faecal incontinence whilst maintaining appropriate bowel function.
On 25 July 2019, the Court received correspondence from Dr Mak, Mr Macdonald's general practitioner, noting that Mr Macdonald had sought his advice and assistance in reducing his intake of laxatives. On 1 August 2019, the Court received the following updated report: Mr Macdonald attended my practice on 30 July 2019 for a further consultation relating to his laxative reduction programme and other health issues. I have also had the opportunity to read Dr Ellard's opinion in the court transcript. Mr Macdonald has kept a diary detailing his daily intake of tablets and their effects. From my discussion with Mr Macdonald and reviewing his diary he commenced the programme on 17 July 2019 reducing his intake from 15 to 14 tablets with equal numbers of senokot and dulcolax. Since then he has gradually reduced the intake to 11 tablets as of 30 July 2019. In summary he is still experiencing volatility and has no control over time of bowel movement. Mr Macdonald informed me he has experienced a number of accidents. There has been a slight reduction in bowel movements from 7 to 10 per day to 5 to 7 per day. The reduction is leading to some discomfort and abdominal pain caused by a build up of wind. This is especially affecting him at night impacting his sleep patterns. He is unable to sleep due to this discomfort and rises between 1am-3am and does not return to bed. Mr Macdonald was experiencing bloating during the constipation. Mr Macdonald has deep seated anxiety arising from the impact of straining upon the hernia repair and fear of creating another abdominal tear. Mr Macdonald will persist with the programme for a period of time despite these difficulties of discomfort and sleeplessness. It must be noted that Mr Macdonald is 70 years of age and has had a chronic condition for over 30 years, so any adjustment will not be immediate. The programme must be administered in such a way that potential adverse health impacts are avoided. If this programme is not successful I recommend Mr Macdonald seek further treatment options immediately. I note Dr Ellard also recommended Mr Macdonald consult with a gut psychologist as part of the reduction regime. Given Mr Macdonald's chronic condition I have referred him to Mr William Fu at The Gut Centre in Chatswood. Mr Macdonald has contacted The Gut Centre and has agreed to a course of 8 initial sessions on a weekly basis commencing 12 August 2019. Mr Macdonald qualifies for this programme under the National Mental Health Care Plan which provides for up to 12 consultations. I note Professor Borody's Medical Report and have referred Mr Macdonald to Professor Paul Sved, Surgical Urologist, for consultation. Professor Borody's Medical Report also indicates he will conduct endoscopy and colonoscopy procedures as soon as the repair has healed sufficiently. Mr Macdonald also has a haemorrhoid condition that needs addressing. Mr Macdonald is awaiting a date in September 2019. Given Mr Macdonald's family history of bowel cancer and his long-term gastro-intestinal problems I recommend he has the endoscopy and colonoscopy procedures as soon as possible. I will continue to monitor Mr Macdonald's programme.
Mr Macdonald has since consulted The Gut Centre and has scheduled weekly appointments with a psychologist up to and including 30 September 2019.

Determination

Mr Macdonald did not abandon that part of his application for a temporary stay on the basis of his current wish to be considered as a candidate for Faecal Microbiota Transplantation (FMT) by Prof Borody to treat his constipation - a treatment which would require weekly infusions of donor flora for a minimum of three months at the Centre for Digestive Diseases at Five Dock. Prof Borody made clear in his evidence that FMT for the treatment of constipation was a "new frontier in science"; that its efficacy is yet to be established; that Mr Macdonald's candidacy for the three-month treatment course through a multistage process of assessment had not been commenced much less determined and that, in any event, there were 37 people in advance of Mr Macdonald, in Prof Borody's words, "lined up to do the new novel method". I am not persuaded that Mr Macdonald's wish to be considered as a candidate to participate in an FMT program to treat his constipation justifies delaying the commencement of his trial until February 2020.
I am also of the view that his continued adherence to a medically monitored and supervised withdrawal from his dependency on self-prescribed laxatives will ensure that his chronic constipation is no impediment to his participation in his trial within a relatively short period of weeks. Having regard to the Crown's evidence, I am also satisfied that there are adequate public toilet facilities on the public transport route that Mr Macdonald is intending to travel to court each day from his home in Leura and, in addition, that arrangements can be made with the Sheriff for the female toilets outside Court 2 to be reassigned as male toilets (since the men's toilets are some greater distance away and down a flight of stairs) to address any unpredictable episodes of urgency.

Mr Macdonald's application for a stay to enable him to prepare for trial

The additional ground for a temporary stay first advanced by Mr Macdonald orally on 17 July 2019 is grounded in his claim that he is without funds, or any access to funds, to secure private representation and that he does not intend to pursue an application for legal aid having been informed that a grant of legal aid would be conditional upon his wife agreeing to provide Legal Aid NSW with a charge over the matrimonial home which she refuses to provide.
The Crown does not challenge Mr Macdonald's claim that he is, in that sense, indigent. His allied assertion that he needs four months to prepare to represent himself at his trial was challenged.
In the Crown's submission, Mr Macdonald must be taken to have been on notice from at least April 2019 when the May 2019 trial date was vacated on his application that he would not be represented by counsel after September 2019, since that was a position which counsel clearly communicated to the Court in April 2019. Even allowing for Mr Macdonald's intervening ill health as he recovered from surgery and influenza, the Crown submitted that the Court should proceed on the basis that counsel informed him of their intentions to formally withdraw from the proceedings after the evidence in support of the stay based on medical grounds had been adduced. While there is no precise evidence as to when Mr Macdonald was informed of counsel's intentions in that regard, I accept that in discharge of their ethical duties to their client they would have informed him of that fact, at the very least at the time the notice of motion was filed on 4 July 2019, if not before. On that assumption, Mr Macdonald has been on notice for some time of the need to prepare himself for the eventuality that he would appear at his trial unrepresented. He was also repeatedly encouraged by the Court to proceed on the basis that the trial would commence this year and to undertake all necessary preparations on an ongoing basis until such time as the stay applications were the subject of a final judgment.
The claim advanced orally by him on 17 July 2019 that he needed four months to prepare was not supported by any detailed analysis of the evidence in the Crown case or the evidence that directly relates to the acts of wilful misconduct alleged against him. He has not at any time asserted any lack of understanding of the nature of the case against him or any failure to appreciate the evidence upon which the Crown relies to prove the conspiracy alleged, or the nine particulars of wilful misconduct that are the subject of the agreement. This is hardly surprisingly given his involvement in the ICAC proceedings in 2011 and 2013 and the service of a Court Attendance Notice in 2016 alleging a criminal conspiracy based directly upon the evidence adduced in the ICAC proceedings.
When the application for a stay was initially advanced on 17 July 2019, it was based solely on Mr Macdonald's claim that in addition to the Crown tender bundle there are: … thousands of pages of evidence not presented to the Court, including much exculpatory evidence which I need to read and incorporate.
On 18 July 2019, Mr Macdonald made a further statement to the Court in which, in addition to emphasising that since the onset of his illness in April 2019 his instructions to his lawyers related to the pre-trial hearings, including objections to the tender bundles and the proposed agreed statement of facts, he said that he has not recently reviewed the materials that effectively comprise the Crown brief of evidence. He went on to say: I also need to review the thousands of pages of ICAC transcripts, of both the private and public hearings, to identify the exculpatory evidence available to me. I am aware of a limited number of documents that have very powerful arguments for me contained within them. They're not in the tender bundle. This offence is serious. I was given little notice of the lawyers dropping out. In fact, I was informed on my way out, when you gave me leave to retire the other day, Oh, about lunch time, although I knew there was problems with some trial and other trials in the future. I need to contact witnesses, and I need to clarify with you how you handle interviews with witnesses that the Crown has brought forward, and how that can best be done. I understand they haven't got a monopoly on witnesses. I am not sure how that's going to work. The fairness aspect relates, I think, to the volume of evidence. I have not, when I was in prison, had many documents relating to this particular matter. I had six boxes of material, which was to do with Acacia, because that was the trial, that's the reason I was in gaol and that was the appeal. That was my focus of attention for the last two and a half years.
Although Mr Macdonald relied upon two affidavits of Mr Heinrich, dated 4 and 18 July 2019, upon which he was cross-examined by the Crown on 1 August 2019 (at which time Mr Macdonald had the opportunity to adduce additional evidence from him), Mr Heinrich did not give any indication of an awareness of the "thousands of pages of evidence not presented to the Court" or any instructions from Mr Macdonald that evidence contained "much exculpatory evidence" as he informed the Court on 17 July 2019. Although Mr Macdonald was in custody from 26 May 2017 to 25 February 2019, and I accept that for much of that time he was focused on the pending appeal against his conviction, Mr Heinrich confirmed that as from the time of Mr Macdonald's arraignment in this Court on 6 October 2017 and after his release from custody on 25 February 2019, prior to being incapacitated by illness for a period of time from mid-April, he has been available to Mr Macdonald to consult with in preparation for his trial. Mr Heinrich also confirmed that for a significant period of time before Mr Macdonald was incarcerated in May 2017, Mr Davidson acted for him in respect of the current proceedings and that, as and from February 2019, Ms Cunneen also acted for him.
When I invited Mr Heinrich to express his view about Mr Macdonald's familiarity with the case against him, he gave the following evidence: Q. He is certainly aware of the particulars of the alleged misconduct, the subject of the conspiracy? A. Yes, he was provided certainly with the indictment and he was provided with the particulars that were given or served by the Crown, that's correct. Q. Now, it is not for the Crown and indeed I don't invite you in any way to comment upon materiality, if that's the way of describing it, of any defence that he might ultimately make to the charge, but leaving that issue aside, he knows what is alleged against him and he knows the evidence that the Crown has available to it to prove the particulars of misconduct. Would that be a fair assessment? A. I think he knows what is alleged against him, that would be a fair assessment. What I don't think he has had the opportunity to do is properly consider his defence. Q. Can you explain to me why you say that? A. Well, we have been very focused on the tender bundle since late March. He was only released from prison at the end of February. We were very ‑ also seeking to get better particulars. So, we were focused on those aspects of the case. We hadn't had the opportunity to discuss with him the evidence that's been served by the Crown in respect of the statements, except in fairly general terms. He has been provided with copies of the statements at various times. But we haven't had the opportunity, given the size and complexity of the case, to sit down with him and go through that evidence, which the Crown proposes to lead. We were hoping to do that once he had his hernia operation, but he then obviously has taken, because of his health ‑ it has taken rather longer than we all thought. Q. I understand that. But can I just have your assistance with this, I also understand from some evidence that you have given today that it was certainly the view ‑ your view, as I understand, the view of counsel ‑ that Mr Macdonald's implication, as it were, in the conspiracy alleged and the way the Crown proposes to prove it is not confined to, but very heavily focused on the allegations of misconduct, as Ms Cunneen has submitted to me, and as you, in effect, averted to today the so‑called entrepreneurial phase of the Crown case does not directly involve Mr Macdonald. Indeed, there is no direct evidence of him having any knowledge or involvement in what the Crown alleges principally to be Mr Edward Obeid's conduct over a very extended period of time. Do I understand that being the case it was your approach and that of counsel that in the first phase of the trial? Given the way the Crown proposes to adduce the evidence there would be the need for Mr Macdonald to be ably represented by counsel, but thereafter both counsel and you could come and go? It being communicated to the Court and doubtless I will tell the jury that there was no questions that would be put to a great number of witnesses and that in those circumstances Mr Macdonald would not have to represent himself so much, because there would be no questions that he would be putting to those witnesses. Have I understood that correctly? A. I think as a result of the pre‑trial hearings it became clear that the proposition that you have just put is correct. Once the Crown made that concession in relation to the entrepreneurial period the scope of the case against Mr Macdonald was considerably narrowed. Therefore, there would be a great, great part of the trial that would not touch on him.
Mr Heinrich gave evidence that following his withdrawal from the proceedings, the brief of materials have been boxed and delivered to Mr Macdonald's home and that there are a number of additional boxes of supplementary materials available for his collection, including what I am given to understand are the "ICAC transcripts".
Mr Heinrich later confirmed by email that the Crown case statement was provided to Mr Macdonald whilst he was in custody together with the six boxes of the Crown brief of evidence that had been served by the Crown as at that date.
Insofar as access to witnesses is concerned, I note that on 2 May 2019 Mr Heinrich requested the Crown to provide the contact details of 15 witnesses not, it would seem, included on the Crown's proposed witness list, but witnesses the Crown was requested to call. By letter dated 20 May 2019, those witness details were provided and, it must be assumed, Mr Macdonald is aware of them.
On 1 August 2019, Mr Macdonald advised the Court that his defence would involve materials additional to the evidence served by the Crown and that he was in the process of marshalling that evidence himself having had a belief for "some time" that would be "work done by [other] people". Mr Macdonald was not asked by the Court to provide additional information about his defence, although an available inference is that a number of the people whose contact details had been provided by the Crown have in fact been contacted to assist him in that regard. Mr Macdonald also advised me that he was in the process of going through the various witness statements as they directly impacted upon the central Crown allegation that he wilfully misconducted himself in the public office he held as Minister and, it must be assumed, he is in the process of considering what questions might be put to them in cross-examination referable not only to their statements served by the Crown but what Mr Macdonald advised was his access to previous statements made by some of them. In short, Mr Macdonald confirmed as of 1 August 2019 that his preparations for trial were continuing and with gathering pace as the trial date approaches.

Determination

Were I persuaded that as at 1 August 2019, when the evidence and submissions bearing upon both stay applications had been received, that a period of four months (or 16 weeks) from mid-July was required before Mr Macdonald would be in a position to represent himself at trial, a temporary stay of his trial until February 2020 would likely have attracted favour, it being impractical to have commenced the trial in mid-November 2019. Since it has always been the Crown's intention that the three accused would be tried jointly, were I persuaded that a period of four months from 1 August 2019 was an appropriate and reasonable time to allow Mr Macdonald to prepare for his trial, the joint trial of all three accused would have been relisted to commence in February 2020.
After giving due consideration to the competing arguments of the Crown and Mr Macdonald, and taking into consideration what I regard as the clear public interest in maintaining the momentum of a trial that involves serious allegations of criminal conduct by two former Members of Parliament and a trial that has been through a protracted course of pretrial hearings with the focused contribution of all parties, including Mr Macdonald who was represented throughout, I propose to allow an additional period of seven weeks from 8 August 2019 to allow Mr Macdonald to prepare to represent himself at his trial, being seven weeks in addition to the preparations which have been current and continuing from the date his legal team formally withdrew in July 2019.
I am satisfied that, in all the circumstances, including the unusual circumstance of Mr Macdonald's intimate familiarity with the nature of the evidence the Crown proposes to lead in proof of the central allegation that he wilfully misconducted himself as a Minister, including detailed particulars of his alleged misconduct in that capacity, he will be afforded the necessary procedural fairness to ensure a fair trial were his trial to commence on 30 September 2019.
I am satisfied that, in all the circumstances, a temporary stay of proceedings for a period of seven weeks from the date of this judgment (that is, to 30 September 2019) is sufficient to ensure that Mr Macdonald will be adequately equipped to represent himself at his trial. I have resolved to that view having regard to Mr Macdonald's exposure to the evidence upon which the Crown relies to prove the multiple acts of wilful misconduct by him as a Minister of the Crown that is central to the charges he faces at trial, and the very considerable legal support and advice he has received, albeit on a pro bono basis since 2016 after criminal proceedings were commenced and, it would seem, the very considerable legal advice he received by privately retained senior counsel during the ICAC proceedings between 2011 and 2013 in dealing with that same subject matter. I accept that it is always desirable that a person accused of a serious offence has the benefit of legal representation and advice at his or her trial.
I also suggest that Mr Macdonald make arrangements to schedule any medical procedures advised by his general practitioner or treating specialist before 30 September 2019. I note that, by reason of the adjourned trial date, Mr Macdonald can attend the scheduled appointments with The Gut Centre, notified to him by letter of 29 July 2019, as an additional measure to improve his gastrointestinal health and improve his capacity to attend his trial on a daily basis despite some residual gastrointestinal discomfort.

Orders

The Court orders:
The notices of motion filed on 21 June 2019 and 4 July 2019, respectively, are dismissed.
Mr Macdonald's application for a temporary stay to allow him time to prepare for trial is granted in part.
The trial date of 12 August 2019 is vacated.
The trial is relisted to commence on 30 September 2019.

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: 19 July 2021

At a glance

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