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

Supreme Court of NSW|2019-05-10|Before: Fullerton J, Whealy J

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

Judgment [In this judgment, footnoted references to pages of the Crown tender bundle refer to the pagination of the tender bundle in the trial.]

HER HONOUR: It is accepted by the accused that a considerable body of the documentary evidence in the 13 volumes that comprise the Crown tender bundle, together with significant parts of the evidence from the 49 witnesses the Crown proposes to call at trial, is admissible to prove the existence of the conspiracy alleged, including the scope of the unlawful agreement intentionally entered into by each of the accused and the participation of each of them in that agreement, either by operation of the co-conspirators rule or as an exception to the hearsay rule under s 87(1)(c) of the Evidence Act 1995 (NSW), or both. Section 87(1)(c) requires the admission of evidence tendered as an admission made with implied authority when it was made in furtherance of a common purpose (see R v Milne (No 1) [2010] NSWSC 932). The section does not alter the common law position such as to render inadmissible circumstantial evidence tendered for a non-hearsay purpose, namely to prove the existence and scope of an alleged conspiracy (see R v Baladjam (No 38) [2008] NSWSC 1458 per Whealy J at [34]-[55]).

The evidence comprehended by the "global objection"

In addition to objections taken by some of the accused to some discrete aspects of the evidence relating to events both prior to the conspiracy and during its currency, some of which have attracted separate judgments, there was a large body of evidence in the Crown tender bundle to which objection was taken by each of the accused. This objection was described in Mr Neil's written submissions of 3 April 2019 on behalf of Moses Obeid as a "global objection" to the evidence the Crown proposes to adduce of a succession of interrelated events and commercial transactions of various kinds engaged in or entered into after 31 January 2009 extending through to May 2012.

The Crown's submissions on the admissibility of the evidence comprehended by the "global objection"

The Crown accepts that the object of the conspiracy alleged in the indictment, and particularised in the Crown's letter of 1 May 2019 [1] furnished responsive to a request for further and better particulars, had been achieved by 31 January 2009. That is, the Crown accepts that the unlawful agreement into which it is alleged each of the accused intentionally entered (an agreement which had as its object that Mr Macdonald would wilfully misconduct himself in public office for the improper purpose of benefiting the Obeid family and/or their associates) was fully executed or fulfilled by that date.
The Crown's intention in adducing evidence of the succession of related events and commercial transactions of various kinds after 31 January 2009, in particular the conduct of Moses Obeid in his various dealings with Monaro Mining NL (Monaro Mining) and Cascade Coal Pty Ltd (Cascade Coal) after that date (both his direct dealings with those entities through his meetings with the directors and/or executives of Cascade Coal and his indirect dealings with both companies through Mr Gardner Brook) is not subject to the limitation in Ahern v The Queen at [7], [8] and [17] that evidence of the acts or statements of an individual accused must be shown to be in furtherance of the conspiracy in which they were participants before that person's acts and statements are to be admitted against another accused. In the Crown's submission, the series of related events and commercial transactions that extend beyond 31 January 2009, and the evidence which reveals the extent of Moses Obeid's active participation in those events, is relevant and admissible against each of the accused for another purpose.
In the Crown's submission, Moses Obeid's dealings with Monaro Mining both before and after 31 January 2009, and his approach to Cascade Coal on 23 May 2009 (at the latest) (both companies having tendered for a coal exploration licence over the Mount Penny Coal Release Area under the extended expression of interest process - "the EOI process") is evidence of the steps taken by him (on his own behalf and on behalf of his wider family interests) to use the information that had either sourced directly from Mr Macdonald in breach of his Ministerial duties of confidentiality and impartiality, or information that was otherwise made available to him indirectly through his father, Edward Obeid, as a result of Mr Macdonald's acts of wilful misconduct. The Crown submitted that, viewed in that way, this body of evidence is probative of both the existence of the conspiracy and Moses Obeid's and Edward Obeid's participation in it.
In the Crown's submission, the various contractual arrangements Moses Obeid initiated and negotiated through a succession of corporate entities which he either controlled or which were controlled by his associates, is highly probative of the existence of the conspiracy that is alleged, including its nature and scope. These contractual relationships included the relationship between Voope Pty Ltd (Voope) and Monaro Mining forged in August 2008, a relationship which extended beyond 31 January 2009, until their commercial relationship was effectively terminated in May 2009 by Monaro Mining withdrawing any continuing interest in pursuing the tender for the exploration licence over the Mount Penny Coal Release Area. These contractual relationships also included the contractual relationships between Buffalo Resources Pty Ltd (Buffalo Resources) and Cascade Coal which were initiated at the time Monaro Mining was withdrawing from the EOI process.
The Crown submitted that over the course of the early part of 2009, prior to Cascade Coal being notified by the Department of Primary Industries (DPI) in July 2009 that it was the successful tenderer for the Mount Penny coal exploration licence, Moses Obeid approached that company with the same intention that had accompanied his first approach (via Gardner Brook) to Monaro Mining in July 2008. In the Crown's submission, Moses Obeid's intention in dealing with both mining companies was to advance the financial interests of his family and their associates as landowners (entities and individuals associated with the Obeid family were by that date the registered proprietors of Cherrydale Park and in negotiations to purchase Donola and Coggan Creek), and also to secure for the Obeid family, through various trust arrangements, the financial benefits that he anticipated would be generated by the exploitation of the coal exploration licence at Mount Penny he knew was under consideration as part of the extended EOI process, including by potentially participating in a joint venture to exploit any mining lease subsequently granted by the State government to the successful licence holder.
There is no evidence that Mr Macdonald was involved in any of the transactions involving Monaro Mining or Cascade Coal or that he had any knowledge of them. In addition, there is little by way of direct evidence that Edward Obeid was involved in any transactions, although the Crown submitted there is a strong inference that he was kept informed of the progress of Moses Obeid's negotiations with the mining companies. In the Crown's submission, the inference that Edward Obeid was kept informed of the progress of his son's commercial dealings is consistent with his interest in securing the financial advantages which would flow to his family as an owner of property within the Mount Penny Coal Release Area, together with his interest in securing a future income stream via a joint venture with a mining company.
The evidence of Moses Obeid's dealings with Monaro Mining and Cascade Coal in what was referred to in the proceedings as his "entrepreneurial activities" in the "transaction phase" of the conspiracy the subject of the "global objection" was not tendered by the Crown pursuant to either the co-conspirators rule or s 87(1)(c) of the Evidence Act. To the extent that Mr Barry submitted in paragraph 5 of his written submissions of 3 May 2019 that this evidence was being tendered against Edward Obeid on that basis he is mistaken.
In the Crown's submission, if evidence of the use Moses Obeid made of the information provided by Mr Macdonald in breach of his Ministerial duties during the currency of the conspiracy is relevant to proving its existence and scope (there being no submission it was not probative of that issue), it would be both artificial and arbitrary to prevent the Crown from seeking to adduce evidence that he continued to use that information after the object of the conspiracy had been achieved for the same purpose and with the intention of achieving the same objectives. In short, while the Crown accepts that by 31 January 2009 Mr Macdonald had done what it was agreed by each of the accused that he would do in breach of his Ministerial duties, and for the improper purpose alleged, it is also the Crown case that by that date the benefits and/or the advantages to the Obeid family as the agreed object of the conspiracy had not been fully realised.
To be clear, it is the Crown case that evidence of Moses Obeid's use of information provided by Mr Macdonald during the conspiracy includes negotiating for the purchase of Coggan Creek and Donola (properties adjoining Cherrydale Park) by his associates before the EOI process for the grant of the Mount Penny coal exploration licence was publicly announced in September 2008. It also includes the negotiations Moses Obeid initiated with Monaro Mining in July 2008 (via Gardner Brook) which culminated in the Option Deed Over Shares dated 20 August 2008, [2] also an agreement reached before the DPI publicly released the Expression of Interest information pack in September 2008. [3] Under the Option Deed Over Shares, Monaro Mining agreed to transfer 80% of its shareholding in Monaro Coal Pty Ltd (Monaro Coal) (its wholly owned subsidiary) to Voope were Monaro Coal awarded one or all of the coal exploration licences it had tendered for in Monaro Mining's name.
The Crown also alleges that Moses Obeid's use of the confidential information disseminated by Mr Macdonald during the currency of the conspiracy, was also used when, as early as June 2008, he and his brothers provided instructions to Mr Rumore, solicitor, to prepare what ultimately came to be the Landowners Agreement [4] dated 5 June 2009 and the Profit Sharing Deed dated March 2009 [5] . Both agreements concerned the rural properties Moses Obeid knew was comprised within the Mount Penny Coal Release Area and which had been designated as such by the DPI by that date. The same body of confidential information was also used in early July 2008 when Moses Obeid engaged Gardner Brook to facilitate an introduction to a mining company (Monaro Mining) which might be interested in tendering for the proposed coal exploration licence at Mount Penny. That introduction ultimately culminated in the Option Deed Over Shares (otherwise known as the Voope Option Deed) referred to earlier.
The Crown submitted that it is not to the point that there is no evidence as to what Mr Macdonald appreciated would, or might be, the steps taken by Moses and/or Edward Obeid to exploit the information the product of his acts of misconduct to their financial advantage. Neither is it to the point that he could not have anticipated that the arrangements that Moses Obeid forged with Monaro Mining in the second half of 2008 would be overtaken by the events in early 2009 (events which ultimately resulted in Monaro Mining ceasing to have any ongoing interest in the exploration licence at Mount Penny) or that the successful tender for the Mount Penny coal exploration licence would then pass to Cascade Coal. In the Crown's submission, it is equally not to the point that Mr Macdonald could not have anticipated the extent of the financial advantage which was ultimately generated in October 2010 when the Rights Termination Agreement [6] with Cascade Coal was executed.
In the Crown's submission, what is to the point is that Moses Obeid's conduct from as early as June 2008, extending through to at least May 2012 is evidence of the determined steps taken by him to monetise the improper purpose to which the Crown alleges Mr Macdonald's acts of misconduct were directed, namely to benefit Edward Obeid, Moses Obeid and their family members and/or associates, being conduct in which Mr Macdonald would not have engaged but for that improper purpose (Maitland v R; Macdonald v R [2019] NSWCCA 32).
The Crown submitted that since the body of evidence to which the "global objection" is taken is, by that analysis, probative of the existence of the conspiracy that is alleged, the evidence is admissible against all three accused. The Crown also submitted that the same body of evidence is relevant to prove Moses Obeid's and Edward Obeid's participation in the conspiracy with Mr Macdonald, and their financial motives in agreeing to participate. The Crown does not rely upon this body of evidence in proof of Mr Macdonald's participation in the conspiracy. The Crown accepted that directions will need to be crafted to ensure the jury understood the limits on the use they could make of this evidence in their deliberations to verdict insofar as the participation of Mr Macdonald in the conspiracy is concerned.
In proof of its case against each of the accused, the Crown submitted that it should not be confined to proving events that predated 31 January 2009, just as it should not be prevented from adducing evidence of a succession of events from that date leading up to 31 January 2014 when the Mount Penny exploration licence, held at that time by Mount Penny Coal Pty Ltd, a wholly owned subsidiary of Cascade Coal, was cancelled by the Government of New South Wales, pursuant to Schedule 6A of the Mining Act 1992 (NSW). The Crown submitted that despite those events involving a vast complex of commercial transactions with Cascade Coal, or its subsidiaries, as the holder of the Mount Penny exploration licence on the one hand, and various entities controlled by either Edward Obeid, Moses Obeid or their family interests on the other, as they sought to profit from engaging in a mining feasibility program with Cascade Coal, and ultimately to profit financially from the terms upon which that relationship was terminated in October 2010, the evidence was admissible.
In summary, it is the Crown case that the events over a succession of years after 31 January 2009 including, in particular, Moses Obeid's conduct before and after 31 January 2009, first in his (indirect) dealings with Monaro Mining on behalf of Voope, and then, when the arrangements with Monaro Mining terminated, his dealings with Cascade Coal on behalf of Buffalo Resources, comprises a body of circumstantial evidence that is admissible for a range of non-hearsay purposes in proof of the conspiracy that is charged.
The Crown submitted that the evidence the subject of the "global objection" is capable of establishing, either directly or by necessary inference that the information Mr Macdonald made available to Edward Obeid and Moses Obeid (and through them to others) by his multiple acts of misconduct during the currency of the conspiracy, was both intended to be utilised, and was in fact utilised with two objectives. First, to maximise the commercial advantages that would flow to Edward Obeid, Moses Obeid and their associates in their direct dealings with various mining companies who expressed interest in the Mount Penny Coal Release Area (or their dealings which entities controlled by those mining companies). Secondly, to maximise the financial benefits flowing to them pursuant to the Mount Penny Joint Venture Agreement (and its various iterations) with Cascade Coal executed in June 2009 [7] together with the financial advantages flowing to them pursuant to the associated Landowners Put and Call Option Agreement [8] and the related Land Access Agreement [9] executed in November 2009, transactions which were designed to facilitate the coal exploration and development program over the Mount Penny Coal Release Area that Cascade Coal had been notified on 19 June 2009 had been granted to it.

The accused's submissions on the evidence comprehended by the "global objection"

The primary objection taken by each of the accused to the evidence of the events after 31 January 2009, in particular their objection to the large number of documented negotiations between Moses Obeid and the representatives of Cascade Coal from May 2009 which culminated in the Mount Penny Joint Venture Agreement with Buffalo Resources the following month and, ultimately, the execution of the Rights Termination Agreement in 2010, is that this body of evidence is neither probative of the existence, nature and scope of the conspiracy nor relevant to proof of the improper purpose to which Mr Macdonald's acts of misconduct were allegedly directed.

The complaint about particulars

On behalf of Moses Obeid, Mr Neil also submitted there is a lack of precision in the way in which the Crown has particularised its case. Mr Neil submitted that for the Crown to nominate Mr Macdonald's wilful misconduct as acts "in relation to the granting of a coal exploration licence at Mount Penny", without identifying any steps taken by any of the alleged co-conspirators to either bring about any ultimate financial advantage to the Obeid family, or any steps they appreciated might be directed to achieving that outcome, is an example of that lack of precision. The same complaint is made of the Crown's allegation that Mr Macdonald would not have misconducted himself "but for the improper purpose of advancing interests of Edward Obeid, Moses Obeid and their family members and/or associates" without specifying what those interests are, or how it was envisaged they would be favoured. Mr Neil submitted that lack of precision creates additional difficulties for the accused in addressing the probative value of any of the evidence the Crown seeks to adduce of events after 31 January 2009 on the question of discretionary exclusion under ss 135 and 137 of the Evidence Act.
I do not consider there is any enduring force in that submission. For my part, while the Crown uses words of some generality in the italicised segments to which Mr Neil took exception, they have been progressively and meaningfully amplified by literally days of oral submissions as the Crown Prosecutor effectively opened the Crown case, as she was invited to do to enable the Court to understand the accused's "global objection" in context. The notice of motion filed by Moses Obeid in advance of the pre-trial hearing which complained about the adequacy of particulars was not agitated in the course of the lengthy pre-trial hearing. I expect that is because the Crown's detailed written and oral submissions, and the lengthy and discursive dialogue concerning a plethora of issues that were agitated in the pre-trial hearing, have overtaken the concerns raised by the notice of motion.
Proceeding on the basis that the existence of the conspiracy is capable of being established by evidence of events prior to 31 January 2009, each of the accused submitted that the conduct of Moses Obeid after January 2009 through to May 2012, either as evidence of what might have motivated him or Edward Obeid to participate in the conspiracy, or evidence of the existence of the conspiracy, should be excluded as irrelevant since it lacks the capacity to rationally affect directly or indirectly the assessment of the probability of either of those issues as the primary facts in issue in the proceedings, as required by s 55(1) of the Evidence Act.
The accused submitted that there is no rational process of reasoning by which the jury could find that any of the multiplicity of commercial transactions between Voope and Monaro Coal or between Buffalo Resources and Cascade Coal after 31 January 2009 were directly or indirectly connected with the conspiracy the Crown seeks to prove, there being no nexus, or no sufficient nexus, between the unlawful agreement that is alleged and the conduct of Moses Obeid after 31 January 2009, including the commercial transactions in which he was engaged, directly or indirectly, after that date.
Each of the accused further submitted that even were the evidence comprehended by the "global objection" admissible on any of the bases contended for by the Crown, limits should be imposed on the extent to which the events in 2009 and 2010 and later should be available to be proved by the Crown, when those events become progressively more remote from the initiation of the conspiracy in September 2007 and its currency through to 31 January 2009 when the object of the conspiracy was fully realised.
The accused also submitted that the number and complexity of the commercial transactions between a range of individuals and entities in the period after 31 January 2009 is productive of a risk that the jury will fail to appreciate the limited use to which that evidence may be put by them in determining whether the case the Crown makes against Moses Obeid and Edward Obeid has been proved, and that they will simply leap to the conclusion that there must be some taint to those dealings because of their complexity and the vast sums of money they generated.
Ms Cunneen SC submitted that the risk of prejudice to Mr Macdonald by the Crown adducing the vast amount of evidence of events after January 2009 is immeasurably greater than the risk to which Moses Obeid and Edward Obeid are exposed in circumstances where it is no part of the Crown case that Mr Macdonald received any financial reward from what is alleged to be the breach of his Ministerial duties.
It was on these interrelated bases that each of the accused submitted that the events which relate to the unravelling of the Mount Penny Joint Venture Agreement with Cascade Coal in October 2010, and the very considerable sums of money that were generated from the Rights Termination Agreement executed at that time, should be excluded under s 135 or s 137 of the Evidence Act since the probative value of that evidence is low and outweighed by the risk of unfair prejudice.
Finally, the accused submitted (although not uniformly) that even were the evidence the subject of the "global objection" admitted, a number of discrete objections to some of the documentary evidence warranted the exclusion of those documents and proof of the transactions to which those documents are related. These objections (the great majority of which were taken exclusively on behalf of Moses Obeid) included subsidiary questions of relevance, the form of the document, objections based on hearsay and, in some cases, because the Crown cannot prove the provenance of the document. The objections were organised within various subject categories in a schedule marked Exhibit A4. After Mr Christopher Rumore, solicitor, gave evidence on the voir dire of the circumstances in which many of the documents in his file were created (either by him or his associates), including his evidence that his instructions came interchangeably from Moses Obeid or his two brothers, the schedule of objections was reduced. The rulings on the admissibility of the documents to which objections were maintained attracted only one separate published judgment [10] . The reasons for either admitting other documents or excluding them are, in the main, reflected in the transcript of proceedings.

Assessing the probative value of the evidence the subject of the "global objection"

The objection to the evidence the subject of the "global objection" on grounds of relevance and, if that evidence is found to be relevant, whether it should be excluded on discretionary grounds, requires that an assessment be made of its probative value. That is no easy task. The evidence is voluminous. It comprises 4 of the 12 lever arch folders in the Crown tender bundle and consists not only of large number of financial documents of many individual pages, but also email and other correspondence between various entities (including legal correspondence), minuted meetings of various corporate entities and a large number of transactional documents in the form of "Deeds" and "Agreements" of one kind or another, some of which are in draft and some of which are in an apparently settled form but unexecuted.
I have determined that an assessment of the probative value of this compendious body of evidence can be made without referring to each of the individual folio pages of four volumes of the Crown tender bundle, in circumstances where the Crown case statement (a document of 163 pages) is comprehensively structured in 12 parts arranged alphabetically, providing a chronological narrative of events before, during and after the conspiracy had been fully executed. Each of Parts C-L concerns either an event (for example, the purchase of the three rural properties within the Mount Penny Coal Release Area Parts C, D, G) or activities attributed to various members of the Obeid family in what is alleged to be their pursuit of mining interests both during the course of the conspiracy and extending beyond it up to and including June 2009 (Parts H and J) and then the unravelling of the arrangements with Cascade Coal between May and October 2010 culminating in the payments to the Obeid family generated by those by arrangements (Part L).

The objection to the documents comprehended by the "global objection" on the basis that the EOI process was in two separate and distinct phases

Foundational to the "global objection" mounted by the accused is the proposition that, properly understood, there was what was described by Mr Neil as a "First (Limited) EOI Process" in which a discrete number of small mining companies were invited to tender for the issue of a coal exploration licence over Mount Penny, a process which was formally opened for tender on 9 September 2008 and which closed on 24 November 2008, without an exploration licence issuing. Mr Neil submitted that since that process did not lead to the granting of an exploration licence to either Monaro Coal (a subsidiary of Monaro Mining) or the Jain Group (the only two mining companies that lodged an expression of interest over Mount Penny), and because it is only this "First (Limited) EOI Process" to which the Crown alleges the acts of wilful misconduct by Mr Macdonald were directed, any evidence which concerns the reopening of the EOI process on 8 January 2009 - a process which nominated 16 February 2009 as the closure date, and pursuant to which Cascade Coal was granted the licence on 21 October 2009 - is irrelevant. Mr Neil described that reopened process as the "Second (Extended) EOI Process".
While it was common ground between the Crown and the accused that the EOI process which issued in September 2008 did not lead to the granting of an exploration licence, the Crown and the accused disagreed as to the significance of that fact to the events that extended beyond 31 January 2009, including the circumstances in which Monaro Mining ultimately formally withdrew its tender for the issue of a coal exploration licence over Mount Penny in June 2009 and the circumstances in which Cascade Coal succeeded in its tender for that licence.
Mr Neil submitted that because Cascade Coal played no part in the "First (Limited) EOI Process" (it having not been invited to submit a tender when the EOI process issued in September 2008) any dealings Moses Obeid had with Cascade Coal as the ultimate successful tenderer in the "Second (Extended) EOI Process", including his dealings with that company in May 2009 before the success of their bid was announced in September 2009, is irrelevant to any fact in issue, the more so in circumstances where the conspiracy had been fully executed by 31 January 2009.
In his written submissions of 3 April 2019, Mr Neil emphasised that there is no allegation that Mr Macdonald misconducted himself in relation to the "Second (Extended) EOI Process". However, on 1 May 2019 the Crown furnished an amended set of particulars [11] which included a ninth act of wilful misconduct allegedly constituted by Mr Macdonald communicating to either or both of Edward Obeid and Moses Obeid between 27 November 2008 and 13 January 2009 that the EOI process was to be reopened to allow the "White Group" (which included Cascade Coal) to apply. The Crown does not allege that Mr Macdonald misconducted himself in the events that resulted in the DPI reopening or extending the EOI process in January 2009 allowing for additional small to medium mining companies to be invited to participate in the EOI process (including Cascade Coal). Neither does the Crown allege that he misconducted himself in relation to the evaluation of the tenders submitted in the reopened EOI process or that he sought to influence the process which ultimately resulted in Cascade Coal being offered the Mount Penny coal exploration licence. It is clear, however, that the Crown does allege that in committing the ninth act of wilful misconduct, Mr Macdonald furnished information to Moses Obeid and/or Edward Obeid to the effect that Cascade Coal would be invited to tender in a reopened or extended EOI process, and that it was this information which motivated Moses Obeid to approach Cascade Coal in May 2009 with a view to negotiating the Landowners Agreement [12] and a Joint Venture Agreement with them. [13]
In the Crown's submission, the DPI's decision in January 2009 to reopen the EOI process (a decision sanctioned by Mr Macdonald) was in response to correspondence received from a number of mining entities (including Cascade Coal) complaining about the small number of mining companies had been initially invited to tender for the eleven coal release areas (including Mount Penny). "Reopening" the process simply meant that the EOI process was extended with a wider cohort of small mining companies invited to express an interest, with the closure date for that process being extended accordingly. In the Crown's submission, properly characterised, there was no bifurcation or delineation of separate EOI processes as contended for by Mr Neil in his characterisation of a "First (Limited) EOI Process" and a "Second (Extended) EOI Process". Rather, with the same information package in respect of the same criteria for the tender for a coal exploration licence, and in respect of the same eleven coal release areas, the reopened process was nothing more than an extension of the same EOI process, but with a larger cohort of small to medium mining companies invited to participate in the process. In the Crown's submission, the fact that Monaro Mining did not submit a separate tender in the reopened or extended process, but simply notified the DPI that it maintained its application, supports that characterisation.
In my view, for the accused to draw a line notionally limiting the Crown to adducing evidence of Monaro Mining's tender for a coal exploration licence at Mount Penny lodged on 19 November 2008, and Moses Obeid's (indirect) dealings with that entity both before and after it lodged its application, but limited to events prior to 31 January 2009, ignores the fact, as the evidence in the Crown tender bundle makes clear, that the involvement of Monaro Mining continued beyond 31 January 2009, if for no other reason than it maintained its bid in the extended EOI process, until it formally withdrew its application on 9 June 2009. In my view, that fact alone undermines the foundation upon which Mr Neil sought the exclusion of the evidence comprehended by the "global objection". That does not, however, end the matter. In whatever language the EOI process is characterised (and, as I have said, I do not regard the process as bifurcated creating two hermetically and separately contained EOI processes in the way Mr Neil and Mr Barry contended), I am not of the view that the Crown should be confined, as a matter of law, to the evidence it proposes to adduce in proof of the conspiracy charged, to evidence of what occurred within the timeframe particularised in the indictment, being the timeframe during which the illegal agreement was current and continuing.

Is there a relevant nexus between events before and after 31 January 2009?

I do accept, however, that the Crown must be able to identify evidence capable of establishing a relevant nexus between the conduct of one or more of the accused which extends beyond the timeframe of the conspiracy and the existence and scope of the conspiracy and/or the participation of one or more of the accused in that conspiracy.
Mr Neil accepts that the Crown is entitled, in proving the conspiracy to adduce evidence of Moses Obeid's involvement, throughout the course of his negotiations with Monaro Mining from early July 2008. As I understand that concession, Mr Neil also accepted that the Crown is entitled to seek to prove the use to which Moses Obeid sought to put the information allegedly provided to him by Mr Macdonald in breach of his Ministerial duties in furtherance of the conspiracy charged, including in the various approaches he made to mining companies both directly and via the agency of Gardner Brook, including to Monaro Mining in July 2008. Mr Neil's submission was, however, that because the relationship between Monaro Coal and Voope was terminated in May 2009 when the Board of Directors of Monaro Mining resolved, unilaterally, to disengage from the tender process, Moses Obeid's approach to Cascade Coal, and the contracts that were ultimately negotiated and executed with that company as a consequence, are without any discernible nexus to the conspiracy charged and therefore irrelevant.
Mr Neil submitted that in the absence of any relevant nexus between the transactions with Monaro Mining and Moses Obeid's conduct in his dealings with that company during the currency of the conspiracy and the Cascade Coal transactions which overtook them after the conspiracy was executed, the Crown should be confined in proving its case to what was allegedly done by Moses Obeid, and other alleged conspirators to promote Monaro Mining's bid in the interests of the Obeid family before 31 January 2009. In particular, it should be prevented from adducing any evidence of Moses Obeid's involvement with Cascade Coal as and from May 2009 up to and including the unwinding of those arrangements in the Rights Termination Agreement in October 2010.
Mr Barry also accepted that the Crown is entitled to prove its case referable to what he described as "the Monaro bid". In his submission, however, because the overwhelming evidence establishes that "bid" was effectively abandoned by the Board of Monaro Mining at their meeting on 22 May 2009, [14] any involvement of Cascade Coal or any other mining company after that date is irrelevant.
Mr Barry also submitted that the unravelling of the arrangements between Buffalo Resources and Cascade Coal (arrangements which Mr Barry described as the unravelling of a "contingent joint venture", being contingent upon the process of exploration for coal in the Mount Penny Coal Release Area once the licence was granted to it) and the payments of significant amounts of money under the Rights Termination Agreement of September 2010 which reflected that unravelling, were the result of the unilateral decision by Cascade Coal once they became aware of the value of the coal resource. That being the case, he submitted there is no relevant nexus between the alleged conspiratorial agreement entered into in September 2007 and fully executed by January 2009, or to the alleged object to which that the agreement was directed, given what he described as the "unrelated and unpredictable events" of October 2010.
On 9 June 2009, by a letter to the DPI, Monaro Mining withdrew the bid lodged in the EOI process in name of Loyal Coal. It seems to be common ground that by that date, executives of that company were unaware that the Evaluation Committee had reached the preliminary view that Monaro Coal was the preferred tenderer, subject only to the resolution of the ambiguity in its bid by confirming its ability to meet its obligation to provide an Additional Financial Contribution of $25 million on the issue of the exploration licence as part of the criteria outlined in the EOI information package. It also appears to be common ground that neither Moses Obeid nor Cascade Coal were aware that Cascade Coal was, or was even likely to be, the next preferred tenderer, it being no part of the Crown case there was any communication of information from Mr Macdonald or from the DPI more generally while the Evaluation Committee determined whether Cascade Coal was the preferred tenderer or by which the Director General, under delegation from Mr Macdonald, consented to the application by Cascade Coal for the grant of an exploration licence under s 13(4) of the Mining Act.

The nexus is forged

I am satisfied that there is evidence to which the Crown referred extensively in oral submissions in response to the written and oral submissions of each of the accused, which supports an inference that as and from February 2009 (that is, within weeks of the DPI announcing an extension of the EOI process) Moses Obeid was conducting himself in a way that was strongly suggestive of an awareness on his part that Monaro Coal may not be in a position to fund the costs of the exploration for and development of a coal mine at Mount Penny in the event that it was successful in its bid for the coal exploration licence, or able to meet its obligation to pay the Additional Financial Contribution were the exploration licence issued to it.
There is also evidence strongly suggestive, if not decisive, of this being what motivated Moses Obeid to find another mining company that may be better placed to tender for the Mount Penny coal exploration licence, both from the DPI's perspective and more importantly as a candidate with whom he might negotiate the terms of a Joint Venture Agreement to exploit the potential for future coal mining activities.
I am also satisfied on the evidence to which the Crown referred in the course of submissions, that the Crown is entitled to invite the jury to draw that inference, not only because of the evidence which is capable of establishing that Moses Obeid knew that "the White Group" were instrumental in the EOI process being extended (information that had been, according to the Crown, supplied to him by Mr Macdonald in breach of his Ministerial duties - the ninth act of misconduct particularised by the Crown in its letter of 1 May 2019), but also because it is open for the jury to infer that with that knowledge he arranged for Cascade Coal, as a member of "the White Group" and therefore a competitive tenderer under the EOI process to be provided (via an unidentified third party) with Monaro Mining's application for the grant of a mining licence - a document to which he had access under the terms of the pre-existing Share Option Agreement between Voope and Monaro Coal.
That state of affairs (which I regard as open to be inferred from the close concentration of related events in the early months of 2009) is separate and distinct from Monaro Mining's obligation under the terms of the EOI package under which it was to make a financial contribution of $25 million as a precondition to the grant of a exploration licence - as a matter of increasing concern to the Board of Monaro Mining and as to which Moses Obeid was also likely, if not certainly, to have been aware of through his relationship with Gardner Brook.
In the Crown's further submission (which I accept), large parts of the evidence to which objection is taken are capable of establishing, either directly or by necessary inference, that Moses Obeid was the recipient of information that ultimately led to the agreement he brokered with Cascade Coal, including that Monaro Mining would withdraw from the bidding process leaving the way clear for Cascade Coal (through its wholly owned subsidiary Mt Penny Coal Pty Ltd) to emerge as the successful bidder for the Mount Penny coal exploration licence, even accepting (as I do) that was an outcome that was beyond his direct control.
It is proposed that Gardner Brook will give evidence that when the representatives for Monaro Mining realised that it had no choice but to abandon its pursuit of the coal release licence at Mount Penny, he relayed that information to Moses Obeid. Moses Obeid is alleged to have said: We aren't going to let go, come hell or high water. We want in on the mining. We have deep pockets. Represent to Monaro that we'd like to take over.
The Crown submitted that this is the clearest evidence that Moses Obeid decided to "switch horses midstream," that is, change the focus of his negotiations from Monaro Mining, through the agency of Gardner Brook, to undertaking his own negotiations directly with Cascade Coal, so as to avoid the risk of losing the leverage he had exercised in negotiations with Monaro Mining, inter alia, by the confidential information that had been disseminated to him by Mr Macdonald potentially coming to nothing.
When the matter was discussed at Monaro Mining's board meeting on 22 May 2009, a resolution was taken by the Board to formally abandon the Mount Penny coal project. The determination on Moses Obeid's part to broker a position with Monaro Mining to assume control of the bid, and to use that as leverage in his negotiations with Cascade Coal is, on the Crown case, reflected in the Chairman of the Monaro Board conveying a request from Gardner Brook that Voope wanted to "salvage the coal project because of its significant exposure," a position which was ultimately reflected in a Board resolution that Voope provide a new agreement outlining a satisfactory mechanism for transferring any licences that may be awarded to Monaro Mining, and indemnifying them against any risk that may be incurred in the process and, further, that Voope would reimburse Monaro Mining's expenses in the amount of $300,000 should it be the successful tenderer. [15]
In the Crown's submission, the language embedded in the Monaro Mining Board minute that Voope "wanted to salvage the coal project because of significant exposure" is, in truth, evidence of Moses Obeid's determination to retain control of the Monaro Mining bid and to use it as leverage in his negotiations with Cascade Coal which were, by that stage, on a parallel track. The Crown submitted that no other explanation for the use of that language is open given that Voope had no exposure at all under the Option Deed Over Shares entered into between Voope and Monaro on 20 August 2008. All Voope had was 80% of a contingent benefit which, by May 2009, was unlikely to be realised since the share transfer was wholly dependent upon Monaro Coal maintaining its bid and being the successful tenderer.
The Crown points out that five days later, namely on 29 May 2009, at a time when, on the Crown case, Moses Obeid continued to have "a foot in both camps", he received the first draft of a Heads of Agreement between Voope and Cascade Coal, an embryonic form of what later became the Joint Venture Agreement between Cascade Coal and Buffalo Resources (in substitution for Voope), and the Landowners Agreement.
Of some significance, having regard to the date of the letter of agreement, is Recital E as follows: 22 May 2009, the Department of Primary Industries informed Monaro Coal that it was the leading contender in relation to a number of the coal exploration areas listed in the EOI, including Mount Penny.
The agreement goes on to recite the fact that the Option Deed Over Shares has been varied to provide for the transfer of 100% of Monaro Coal's shareholding if it is awarded the exploration licence and, if that occurs, Voope will do all things necessary to "assign, transfer, or sell the exploration licence for Mount Penny to Cascade" in exchange for which Cascade Coal will transfer 32.5% of its shares to Voope.
The Crown submitted that the timing of the Heads of Agreement, and its terms, and the execution of the Landowners Agreement and the Joint Venture Agreement on 5 June 2009, with the latter referring expressly to Loyal Coal (Monaro Mining's newly nominated subsidiary in its then existing bid) withdrawing any existing application in relation to the Mount Penny Coal Release Area, as part of the consideration that Buffalo Resources was able to offer, is the clearest evidence of Moses Obeid's "brinkmanship". The Crown submitted this behaviour provides a firm factual foundation to ground the inference that Moses Obeid's negotiations with Cascade Coal, which ultimately culminated in the Joint Venture Agreement, were based on the premise that Monaro Mining would withdraw from the EOI process and, further, that Moses Obeid represented to Cascade Coal that he had control over Monaro Mining's tender to ensure that happened.
In the Crown's submission, that behaviour (in part to be inferred from documents and in part from the evidence of Gardner Brook) provides the nexus between the "Monaro bid" and the "Cascade bid", and is evidence of Moses Obeid's direct involvement with both mining companies at a crucial time in May/June 2009, despite the fact that the conspiracy was fully executed before that date. The Crown submitted it is also evidence of Moses Obeid's determination to realise, to the fullest potential possible, the benefits of the information that had been generated during the currency of the conspiracy, including the fact that the EOI process was reopened to allow Cascade Coal to tender for a licence, and his determination to realise the benefits of a landowners deal and the income stream from mining should the share agreement with Monaro Mining evaporate.
The Crown further submitted that, as matter of necessary inference, Moses Obeid would have kept his father, Edward Obeid, apprised of this rapid unfolding of events, including the introduction of a new and viable mining company in the form of Cascade Coal who were interested in securing the Mount Penny coal exploration licence. The Crown accepts that there is no documentary evidence of those conversations but relies upon the frequency of contact between Moses Obeid and Edward Obeid at critical times as evidenced in the telephone schedule. [16]
Mr Neil submitted that the nexus contended for by the Crown is not supported by the evidence and the Crown submissions are not capable of forging that nexus. In his submission, the Crown's submission that Moses Obeid "brought control of the Monaro bid to the negotiating table with Cascade Coal" is not supported by the evidence. In his submission, it was for reasons entirely unrelated to Moses Obeid that Monaro Mining was unable to finance its own bid, forcing it to make the unilateral decision to withdraw from the EOI process prior to any agreement between Buffalo Resources and Cascade Coal, or even before any approach by Moses Obeid to Cascade Coal. Mr Neil also emphasised that given the integrity of the EOI evaluation process, the Crown has no evidence that anyone knew that Cascade Coal was next in line in the tender process. He submitted that the Crown case theory has been developed in retrospect, and that it is built on the unstated assumption that Moses Obeid had received inside information to that effect, and that he was playing both mining companies against each other with that inside knowledge - a theory which is not borne out by the evidence or supported by it. Mr Neil submitted that were there an available inference of the kind contended for by the Crown, he would accept that unless the contrary inference was intractably neutral, the Crown would be entitled to advance its case on the basis that the inference contended for was open.
Mr Neil also submitted that to invite the jury to reason "retrospectively" or by way of "hindsight" in this way is analogous to evidence of post-offence conduct that is intractably neutral. He submitted that a jury will have no way of rationally reasoning to a finding that Moses Obeid's conduct after the conspiracy had been fully executed, constituted by what Mr Neil described as his legitimate pursuit of a commercial outcome in his dealings with Monaro Mining and then Cascade Coal, renders the question whether Mr Macdonald wilfully misconducted himself in public office with the improper purpose of benefiting the Obeids more likely, or the fact that Moses Obeid or Edward Obeid participated with him in an agreement to achieve that objective, more likely.
I am of the view that the inferences contended for by the Crown to establish the nexus between the events that predate 31 January 2009 and the events which postdate it, are available. I am also of the view that such countervailing inferences as arise on the evidence (in particular the independent actions taken by Monaro Mining to notify the DPI of its intention to withdraw from the tender process, and the inviolability of the process by which the tenders were evaluated by the Evaluation Committee) are for the jury to consider, in the context of a direction as to the need to be cautious before drawing an inference adverse to the accused when competing inferences are, or might be, open.
Mr Neil also submitted that the Crown seeks to arrogate to itself (and the jury) an apparent vantage point from which to view the question whether the criminality alleged by the Crown occurred, and within the timeframe fixed by the charge as particularised, by inviting the jury to view a whole host of transactions retrospectively. These transactions, in Mr Neil's submission, were nothing more than business opportunities of one kind or another that the parties to the conspiracy had no way of knowing would eventuate at the time the alleged conspiracy was current and continuing. He contrasted the value of the information Mr Macdonald allegedly provided from time to time between May and November in 2008 as, at best, a prospective opportunity to make an unspecified profit by some form of commercial arrangement reached between contracting parties during the First EOI Process. He submitted this was an opportunity which was contingent on a multitude of factors, including factors concerning the quality, quantity, location and viability of any coal in the area of Mount Penny, as well as the outcome of the EOI process itself. He also submitted that the value of what Cascade Coal paid under the Rights Termination Agreements in 2010 did not reflect the fruits of the conspiracy, but represented the value to Cascade Coal in removing the Obeid family from the joint venture in the circumstances then prevailing, including adverse publicity.
Save for the submission that the relationship with Cascade Coal was entirely independent of the so-called "First (Limited) EOI Process", a submission which I have already dealt with and rejected, there is force in Mr Neil's submission that there is no direct link between the value of the confidential information and the amount Cascade Coal were prepared to pay to be divorced from any ongoing relationship with the Obeids by 2010 under the agreements that they had willingly entered into in June 2009. What may have been Cascade Coal's motivations in withdrawing from the joint venture in light of the commercial realities they faced in 2010 does not, however, necessarily mean that the very significant amount of money paid under the Rights Termination Agreement is not probative in proof of the fact of the existence of the conspiracy. I consider it is open to the Crown to assert and prove that it was the use of the confidential information concerning the Mount Penny Coal Release Area, which enabled Moses Obeid and his family to position themselves as a joint-venture partner and a signatory to the Landowners Agreement with Cascade Coal in June 2009, and to seek and secure a significant sum at the termination of that relationship in October 2010.

Should the evidence be rejected in the exercise of discretion?

In approaching the assessment of the probative value of the evidence comprehended by the "global objection" for the purposes of ss 135 and 137 of the Evidence Act, it is necessary again to reflect upon the purpose for which the Crown proposes to use the evidence, and to delineate between evidence adduced to prove the existence of the conspiracy alleged and the participation in that conspiracy of the various accused: Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323 at [279]-[280].
In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, French CJ, Kiefel, Bell and Keane JJ went further (at [45]): The of the term "probative value" and the word "extent" in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.
In a case such as that which the Crown opened upon at some length in the course of the pre-trial hearings, there is literally a myriad of pieces of evidence comprehended by the "global objection" which, in the Crown's submission, taken in conjunction with other evidence, is strongly probative of the fact that a conspiracy of the kind alleged existed, including, for present purposes, the strategic and entrepreneurial steps taken by Moses Obeid both before and after 31 January 2009 to secure financial advantages of varying kinds, and ultimately to secure a significant financial advantage to himself and his family by its receipt of $30 million in proof of that fact.
I accept that submission, although not without some reservation. I have some doubts as to the probative force of some of the individual documents, and the transactions which they reflect, in particular the transactions between interrelated parties the Crown seeks to reproduce with the ultimate object of proving the process by which the Rights Termination Agreement was executed and the various parties involved in the process. On repeated occasions during the course of the pre-trial hearing I voiced my concerns as to the time it would take to adduce that evidence given its volume and complexity. I also raised concerns about the documentary evidence the Crown proposes to adduce in proof of the complex interrelationship between Moses Obeid's pursuit of mining interests, first with Monaro Mining and then with Cascade Coal, and the equally as complex unravelling of those relationships at various times. That does not, however, detract from the admissibility of that evidence; neither are my stated concerns relevant to the assessment of the evidence and its probative force in proving the facts that are in issue.
Having formed the view that the evidence, taken at its highest and viewed as a complex of circumstantial facts, has significant probative force in proof of the existence of the conspiracy, I remained to be persuaded that it has significant probative force in establishing either or both Moses Obeid's or Edward Obeid's participation in the conspiracy although it may provide evidence of their motive, a final ruling which can await the trial.
The remaining issue is whether there is a legitimate basis upon which the evidence may be excluded (or some of it) in the exercise of the discretion under either or both of ss 135 and 137 of the Evidence Act.
As to the issue of unfair prejudice, Mr Barry noted that on the Crown case, at the time that Monaro Mining was considering abandoning its tender for a coal exploration licences, including for Mount Penny, there was "a flurry of activity" involving Cascade Coal. That much is true.
Mr Barry submitted that the various agreements, including correspondence concerning the agreements generated at that time, may create in the mind of a jury a perception that Cascade Coal was induced to enter into the arrangements with Buffalo Resources, including the Joint Venture Agreement, upon a representation that Monaro Mining (through Loyal Coal) remained a competitor for the granting of the exploration licence for Mount Penny when this was not the case. He submitted that a jury may think that Cascade Coal was the victim of fraudulent representations (presumably by Gardner Brook and perhaps Moses Obeid) and that the DPI was also being misled as to the true position, namely that Loyal Coal was maintaining an interest in the tender process when it was not. Mr Barry submitted that when a jury examines this body of documentation it may be distracted from its consideration of matters that are directly relevant to whether the Crown can prove the guilt of the accused beyond reasonable doubt on the conspiracy count. He submitted that this risk generates the kind of unfairness with which s 137 of the Evidence Act is concerned.
In Mr Barry's submission, the probative weight of the evidence directed to Monaro Mining abandoning its tender and the circumstances under which various legal relationships with Cascade Coal were reflected in the Agreements executed in June 2009, is outweighed by the danger that a jury may think there was some other wrongdoing, unrelated to the conspiracy, and to take that into account on the question of Edward Obeid's guilt to his prejudice. Expressed another way, Mr Barry submitted that the jury may come to the view that a conspiracy other than that alleged in the indictment existed, and impermissibly take that into account in their deliberations to verdict.
I am satisfied that any risk that the jury may infer that there was some irregularity, or even wrongdoing, in the dealings between Moses Obeid and Cascade Coal, (whether or not via the agency of Buffalo Resources and other entities), can be satisfactorily addressed by directions, since that process of reasoning, were it to go unaddressed, would give rise to the risk of prejudice to which Mr Barry refers. I am not satisfied that directions are inadequate to guard against that risk. In those circumstances, discretionary exclusion of the evidence on the strength of Mr Barry's submission is not warranted.
Mr Neil submitted that the sheer volume, incompleteness and opacity of the majority of documents the subject of the "global objection" is productive of a risk of prejudice, in the sense that the jury will fail to appreciate the limited utility of this material in proof of the Crown case, and simply use it in a way adverse to the accused either without fully comprehending it or by taking the approach that the complexity of the arrangements itself is a mask to illegality.
Mr Neil submitted (a submission in which Ms Cunneen joined behalf of Mr Macdonald) that despite $30 million being a figure legitimately arrived at under entirely legal commercial dealings as the endpoint of the transactions involving Cascade Coal, the constant spectre of that dollar figure and its potentially prejudicial impact on the jury (in the sense that the jury will emotionally or irrationally infer that there must have been something illegal in Moses Obeid's dealings with Cascade Coal to generate that figure) carries with it a risk of unfair prejudice against which jury directions cannot guard. In addition, Mr Neil submitted that because the actual motivation behind Cascade Coal extricating itself from the Joint Venture Agreement was adverse publicity, (a matter which the jury would need to be informed about in order to put the unravelling of that relationship in proper context) may itself lead the jury to the irrational and emotional conclusion that Cascade Coal wanted to distance themselves from interests associated with the Obeids because they knew, or suspected they were guilty of the conspiracy charged, or some other wrongdoing.
Mr Neil submitted that the elements of the offence of conspiracy as charged are complicated enough, and that the jury should not be distracted from focusing on the elements of the offence and the legal directions by which they are bound in determining whether the elements of the offence are proved beyond reasonable doubt, by attending to a vast array of complex transactions that extend years beyond the execution of the conspiracy.
It was in that context that Mr Neil advanced the submission that ss 135(c) and 135(d) of the Evidence Act are engaged, namely that such probative value as attaches to the evidence the subject of "global objection" is outweighed by the danger that the evidence may result in an undue waste of time or be misleading and confusing.
The Crown addressed that submission by acknowledging the volume and complexity of the commercial arrangements between Cascade Coal and Buffalo Resources and related companies, but submitted that does not render the evidence unfairly prejudicial in the way contended for by the accused. The Crown undertook to adduce the evidence for the jury's assistance and ultimately for their edification carefully, economically and supported, where appropriate, by various visual aids. In that regard, I invited the Crown to prepare and provide to the court what the Crown proposed to utilise as a "PowerPoint display" either in the Crown's opening address or in the course of the trial designed to visualise and animate the relationship between various entities and their transactional dealings.
I am satisfied that is an appropriate response by the Crown to what it concedes will be a challenging case for the jury's comprehension. To the extent that, in the course of the trial, I come to the view that the jury is or might be misled by the volume and complexity of detailed aspects of the transactional or commercial relationship between Cascade Coal and various of the corporate entities associated with the Obeid family interests, it may be appropriate to revisit the view I hold at this time, that the Crown should l be permitted to adduce the evidence comprehended by the "global objection", by further directions which may limit the way in which the Crown proposes that some aspects of that body of evidence be adduced trial.
I accept the Crown's submission that despite $30 million being a significant sum of money, that does not of itself create the unfair spectre that something illegal has generated those funds, or that it will distract the jury from focusing, with appropriate attention under direction, to the elements of the offence which the Crown is obliged to prove beyond reasonable doubt. I am also of the view that it will be necessary that the jury are directed that it forms no part of the Crown case that the State of New South Wales or the polity that it represents has lost any measurable benefit by the illegal conduct alleged against the accused or by the funds that were generated.
Finally, and importantly, the Crown recognises the limits to which the jury will be entitled to put the evidence comprehended by the "global objection" in the case the Crown brings against Mr Macdonald. I am satisfied that suitable directions can be crafted to ensure the jury understands not only the limits on the use of the evidence in Mr Macdonald's case but also, to the extent that I am ultimately persuaded that the evidence does not go to establish either or both of Moses Obeid's or Edward Obeid's participation in the conspiracy (a decision that I have determined awaits the unfolding of the evidence at trial), that appropriate directions can be crafted to ensure the jury understands any limits that may be imposed on its use of evidence in the case against those two accused.
In the result, I am satisfied that there is no risk of unfair prejudice by the jury's misuse of that evidence such as to result in its discretionary exclusion under either s 135 or s 137.

Endnotes

Pre-trial MFI 13.
Exhibit A pp 1927-1939.
Exhibit A pp 1993-2017.
Exhibit A pp 4119-4123.
Exhibit A p 3579-3589.
Exhibit A pp 5637-5648.
Exhibit A pp 4131-4135.
Exhibit A pp 4745-4765.
Exhibit A pp 4989-4996.
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 2) [2019] NSWSC 775
Pre-trial MFI 13.
Exhibit A pp 4119-4124.
Exhibit A pp 4131-4135.
Exhibit A p 3793.
Exhibit A p 3793.
Pre-trial MFI 21. 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

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