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

R v Macdonald; R v Edward Obeid; R v Moses Obeid - [2020] NSWSC 1947 - NSWSC 2020 case summary — Zoe

[3]

The search warrant

The search warrant was issued on 22 November 2011 by Stephen Lister, an authorised officer under s 40(1) of the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act), on the application of Grant Lockley, a senior financial investigator at ICAC.
The warrant authorises the search for and seizure of the following documents or things: 2. to search for records and documentation relating to Locaway Pty Ltd, United Pastoral Group Pty Ltd, Mincorp Investments Pty Limited and Desert Sands Holdings Limited (including correspondence with shareholders of Mincorp Investments), Justin Kennedy Lewis Pty Limited, Geble Pty Ltd, Justin Kennedy Lewis Trust, Mona Plains Trust [sic], Elbeg Unit Trust, financial records relating to the disbursement of funds to the shareholders of Mincorp Investments relating to the sale of shares in Loyal Coal Pty Limited, any record that identifies the directors, shareholders or bank accounts of Desert Sands Holdings Limited and any correspondence, notes, accounts and financial records, whether in paper, computer or electronic form, computer tapes and any magnetic, electronic or other computer storage medium containing relevant information and any hard copy printout of any such information, connected with the matter that is being investigated under the Independent Commission Against Corruption Act concerning allegations or complaints of the following nature that: in about November 2007, former government minister Edward Obeid misused confidential New South Wales government information to enable his family company, Locaway Pty Ltd, and at a later date, Justin Kennedy Lewis Pty Ltd and Geble Pty Ltd, to purchase property within a potential mine licence area in the Bylong Valley prior to the awarding of exploration licences; and information by disclosing it to (Paul) Gardner Brook, who used that information to assist a company, Monaro Mining NL to secure exploration licences from the New South Wales government. and to seize any such documents or other things found in or on the premises and deliver them to the Independent Commission Against Corruption [4] .

[4]

The Occupier's Notice

An "Occupier's Notice" was also issued by Mr Lister [5] , pursuant to both the ICAC Act and the Law Enforcement (Powers and Responsibilities) Act 2000 (NSW) (LEPRA).
The Occupier's Notice (which, it was accepted by the parties, was compliant with the regulations) was formally served on Moses Obeid by Tim Fox, an ICAC officer and the warrant holder, in the course of the warrant being executed. The service of the notice is recorded on the extracts of a video recording of the process of the warrant being executed. [6]
Under a number of standardised subheadings, the Occupier's Notice [7] included a "Warning" against the occupier hindering or obstructing the persons executing the warrant. Criminal sanctions are specified. The basis upon which the warrant was issued was also declared, namely that Mr Lister was satisfied that the applicant for the warrant had reasonable grounds to believe that there would be documents or other things (as specified in paragraph (c) of the Occupier's Notice) at the Locaway premises connected with what is described by Mr Lister as an investigation being conducted "by the Commission" for the purposes of s 13 of the ICAC Act in respect of allegations concerning Edward Obeid and Mr Macdonald.
The Occupier's Notice goes on to provide that if the occupier is dissatisfied with the issue of the warrant, or the conduct of the people executing it, they should seek legal advice to assist the occupier in deciding whether their rights have been infringed and what action they may take to assert or defend those rights.
In that regard, and importantly, cl 8 of the Law Enforcement (Powers and Responsibilities) Regulations 2005 requires that receipts be provided acknowledging the seizure of items. Clauses 8(1) and (3) relevantly provide: Receipts for things seized (cf Search Warrants Regulation 1999, cl 7) 1. A person who seizes a thing while executing a search warrant, or a crime scene warrant issued under Part 7 of the Act, in any premises must provide the occupier of the premises with a receipt acknowledging seizure of the thing if the occupier is then present and it is reasonably practicable to do so. [8] 2. … 3. A copy of a receipt issued under this clause, in relation to a thing seized while executing a warrant, is to be attached to the report about the execution of the warrant that is referred to in clause 9 (1).
Finally, under a subheading entitled "Limitations on the Powers Conferred", Mr Lister emphasises that "only [the] functions and powers authorised under the warrant or by the Act authorising the issue of the warrant may be performed".

[8]

The significance of "Wiles Map 1" and "Wiles Map 2"

There is evidence adduced in the trial as to the circumstances in which the draft document entitled "Memorandum of Understanding (Mt. Penny, NSW)" was prepared. Mr Brook gave evidence that he was the "main author of that document" and that he provided a copy of it to Moses Obeid. [12]
In the course of argument involving the validity of the search warrant, the Crown indicated a refinement to its case to allege that between 9 May and 9 July 2008, when both "Wiles Map 1" and "Wiles Map 2" were regarded as confidential by DPI officers and Mr Gibson, Mr Macdonald's Deputy Chief of Staff, when he took receipt of the maps (both in electronic form and embedded in a ministerial briefing note [13] and in large paper copies provided by the DPI at Mr Macdonald's request), Mr Macdonald caused a copy of both maps to be provided to Edward Obeid, Moses Obeid or another member of the Obeid family in breach of his ministerial duty of confidentiality. That conduct is particularised by the Crown as the fourth of eight particularised acts of wilful misconduct committed by Mr Macdonald in furtherance of the alleged conspiracy. [14]
A challenge to the legality of the seizure of "Wiles Map 1" and "Wiles Map 2" (and more generally to the tender of MFI 39 and MFI 40 in the trial) was notified to the Court by Mr Neil QC, counsel for Moses Obeid, before the trial commenced in February 2020. In the process of settling the witness list, it was agreed between the parties that time would need to be set aside in the trial diary to convene a voir dire to resolve a number of questions, the answers to which would determine, in particular, whether the A3 copies of "Wiles Map 1" and "Wiles Map 2" in the manila folder (MFI 39) are admissible in the Crown case against all three accused as evidence both of the existence of the conspiracy and their participation in that conspiracy.
The questions to be resolved on the voir dire include the following: 1. Were "Wiles Map 1" and "Wiles Map 2" validly seized pursuant to the warrant, and the related question of the propriety of the conduct of the officers who executed the warrant under which the Crown contends "Wiles Map 1" and "Wiles Map 2" were seized? 2. There being no direct or documentary evidence that either or both of "Wiles Map 1" and "Wiles Map 2" were in fact seized from the Locaway premises on 23 November 2011, is the evidence on the voir dire capable of establishing a continuous handling of "Item 48" (the property seizure number given to the yellow envelope MFI 40 which, on the Crown case, contained the manila folder MFI 39) from when it was taken into the custody of the property seizure officer, Ron Hillier, and recorded in the Property Seizure Record completed by him at the Locaway premises and then, upon his return to the ICAC offices, when it was "logged" into the property "vault" and thereafter when Item 48 was dealt with by other officers within ICAC between 24 November 2011 and 28 February 2012 in order to support a finding, by inference, that the maps (first recorded as having been located within Item 48 on 28 February 2012) were in fact seized at the Locaway premises on 23 November 2011? 3. In the event that there is an affirmative answer to (b) and negative answer to (a), are "Wiles Map 1" and "Wiles Map 2" (and the other documents which comprise MFI 39 and MFI 40) admissible in the exercise of the discretion under s 138 of the Evidence Act 1995 (NSW) (Evidence Act)? 4. Should the tender of the documents which comprise MFI 39 and MFI 40 be rejected in exercise of the discretion in s 137 of the Evidence Act?

[9]

The position of the parties, in summary

In short, it is the Crown case that the manila folder (MFI 39) was inside the yellow envelope (MFI 40) at the time that the yellow envelope was lawfully seized by Ms Kyriakopoulos (an ICAC officer named in the warrant) from a desk located at the rear of Paul Obeid's office at the Locaway premises on 23 November 2011.
The Crown submitted that the search warrant was both validly issued and lawfully executed and that none of the documents that comprise MFI 39 and MFI 40 were improperly obtained or obtained in contravention of an Australian law. The Crown submitted that even were the Court to find to the contrary, it has discharged the burden of satisfying the Court in the exercise of the discretion conferred by s 138(1) of the Evidence Act that the desirability of admitting the documents outweighs the undesirability of admitting them, including the circumstances in which the documents were seized.
The Crown also submitted that the relevance of MFI 39 and the probative force of the evidence in MFI 39 and MFI 40 lie in the fact that MFI 39 contains a collection of documents that were maintained together because of their related character, in the sense that each of the individual documents bears a date between 9 May 2008 ("Wiles Map 1") and October 2008 (the date nominated on the draft MOU). The Crown submitted that the date range of the documents is consistent with the evolving course of the alleged conspiracy at that time, including the pursuit by Moses Obeid of a contractual arrangement with a mining company under which his family could optimise their position as "landowners" of rural property in the Mount Penny Coal Release Area in order to generate a substantial financial return for their family and/or their associates.
Mr Neil submitted that the search warrant was invalid on its face as failing to state with sufficient specificity the "allegations or complaints" in respect of which the warrant was granted and that the warrant was otherwise impermissibly vague in its terms. He also submitted that the limitations on the power to search on the face of the warrant are unintelligible with the consequence that the warrant conferred an impermissible general power to search, an approach which the warrant holder, Mr Fox, appeared to take when an explanation was sought from him by Moses Obeid as to the limits of the power to search and seize conferred by the warrant. [15]
Mr Neil further submitted the seizure of all or part of MFI 39 and MFI 40 are outside the scope of the warrant, however it is construed.
Mr Neil submitted that when the Court is considering the exercise of the discretion conferred by s 138(1) of the Evidence Act, what he described as the cumulative nature of the illegalities and improprieties involved in the execution of the search warrant and their gravity would justify the exclusion of both MFI 39 and MFI 40, most particularly "Wiles Map 1" and Wiles Map 2", in the public interest. He submitted an attitude which amounted at least to recklessness on the part of the warrant holder, Mr Fox, and Ms Kyriakopoulos as the person who apparently seized the yellow envelope, coupled with ICAC's failure to provide for a transparent process according to which documents were searched for and seized, which if properly followed would have allowed Moses Obeid the opportunity to consider for himself the documents inside the yellow envelope (MFI 40) and to satisfy himself that each of the documents now said by the Crown to be contained within the envelope were in the envelope at all, would fail to satisfy the Court that the Crown has discharged the burden in s 138(1) of establishing that the desirability of admitting the evidence outweighs the undesirability of doing so.
Mr Neil also submitted that when the Court is considering the probative value of the evidence comprised in MFI 39 and MFI 40, and the importance of that evidence in the trial as provided for in ss 138(3)(a) and (b) of the Evidence Act, the Court would at least need to be satisfied that "Wiles Map 1" and "Wiles Map 2" were in fact seized in the circumstances for which the Crown contends. Mr Neil submitted that in the absence of any direct evidence from the ICAC officers involved in the execution of the search warrant that MFI 39 (the manila folder) was actually within MFI 40 (the yellow envelope) when it was seized [16] , the Court would not be satisfied that "Wiles Map 1" and "Wiles Map 2" were ever seized under warrant, even if the manila folder in which they were located for the first time on 28 February 2012 was "taken" by ICAC officers from the Locaway premises on 23 November 2011.
Mr Neil further submitted that neither the date range on the individual documents within the yellow envelope, the nature of those documents or the way that they were allegedly kept at the Locaway offices supports the inference for which the Crown contends.

[10]

The evidence adduced on the voir dire

Two witnesses gave evidence on the voir dire: Mr Hillier, the property seizure officer who was present during the execution of the search warrant at the Locaway premises and the officer who took receipt of the yellow envelope (MFI 40), entered it into the Property Seizure Record and assigned it the property identifying number 11/0363/36/48 (Item 48); and Lisa Stockley, an investigator with ICAC who was charged with the responsibility of reviewing all the property seized under warrant, in the course of which, on 28 February 2012, she located all of the documents identified above at [16] and [17] variously in the yellow envelope (MFI 40), including "Wiles Map 1" and "Wiles Map 2" inside the manila folder (MFI 39) within the yellow envelope.
A number of statements from other ICAC officers involved in the handling of the seized property and extracts of the records maintained by them in that process were tendered by the Crown without objection [17] .
The Crown also tendered an edited version of a video recording of the process of the search containing additional footage [18] and various "stills" [19] from the search warrant video without objection.
On the voir dire (and if the evidence is admissible, ultimately, in the trial) the Crown sought to tender a statement of former ICAC officer, Ms Kyriakopoulos, dated 27 September 2012 under s 65(2)(c) of the Evidence Act on the basis that she is not available to be called as a witness on the voir dire or in the Crown case.
The Property Seizure Record completed by Mr Hillier was also tendered by the Crown. [20] Mr Neil objected only to that part of the document which records that an "[e]nvelope containing various documents Marked 'To be collected Gerard Obied [sic]" was seized by Ms Kyriakopoulos from "Paul Obied's [sic] office, on desk near corner window" as inadmissible hearsay. The Crown relied upon the business records exception to the hearsay rule in s 69 of the Evidence Act for the admission of that part of the entry in the Property Seizure Record to establish that the yellow envelope (as described) was seized by Ms Kyriakopoulos in the location (as described) but only in the event that the Court rejected the tender of Ms Kyriakopoulos' statement under s 65(2)(c) of the Evidence Act.
During the course of proceedings on the voir dire, I admitted a heavily redacted version of Ms Kyriakopoulos' statement, excluding the hearsay assertions as to what she seized from Paul Obeid's office and how she dealt with those items. I also admitted that part of the Property Seizure Record prepared by Mr Hillier at the Locaway premises which records the finding of Item 48 under s 69 of the Evidence Act. Upon further reflection, that ruling was made in error. However, given what I did allow the Crown to prove by the redacted version of paragraph 9 of Ms Kyriakopoulos' statement (namely, that she "conducted a search in the corner office of Paul Obeid" and "recovered various items" from the "rear corner of the office" which she then "handed" to Mr Hillier [21] ) taken together with that part of the entry in the Property Seizure Record that relates to Item 48 and the fact that Ms Kyriakopoulos is not recorded on the Property Seizure Record as having seized other items from Paul Obeid's office, I do not regard the revised ruling as impacting upon the rulings I gave in précis on 20 October 2020 or the reasons for those findings.
What follows are my reasons for the rulings under ss 65 and 69 of the Evidence Act.

[11]

Is Ms Kyriakopoulos' statement admissible?

Section 65(2) provides: (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation - (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was - (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable.
Although the Crown sought to tender Ms Kyriakopoulos' statement in its entirety, it was only paragraph 9 of the statement which contained the matters of fact which were relevant to the admissibility of the manila folder (MFI 39) and the yellow envelope (MFI 40). The Crown also submitted that were Ms Kyriakopoulos' statement admitted on the voir dire, it would also be relied upon by the Crown in the trial to the extent that there are any residual issues as to the circumstances in which MFI 39 and MFI 40 were seized, including the office from which they were seized and the way those documents were handled by ICAC officers.
The following facts or assertions of fact were those the Crown sought to prove by the tender of paragraph 9 of Ms Kyriakopoulos' statement: 1. Ms Kyriakopoulos conducted a search in the corner of Paul Obeid's office, initially at the rear corner of that office; 2. She recovered "a manila envelope and folder" containing various documents that related to "the purchase of property in the Mount Penny area"; 3. She looked into "the manila folder" and "quickly glanced at" a document relating to "a Chinese company" and "an old looking newspaper clipping"; 4. She handed the seized items to Mr Hillier.
Mr Neil objected to the tender of Ms Kyriakopoulos' statement. Mr Martin and Mr Bowe also objected to the tender of her statement but advanced no separate submissions on that issue or the wider question of the admissibility of MFI 39 or 40.

[12]

Was reasonable notice given of Ms Kyriakopoulos' unavailability?

Mr Neil submitted that the Crown had not satisfied the notice requirements in s 67 of the Evidence Act. He also submitted that the Court should not give a direction under s 67(4) permitting the Crown to adduce the hearsay assertions in paragraph 9 of Ms Kyriakopoulos' statement as an exception to the hearsay rule as the preconditions to admissibility in s 65(2)(c) were not satisfied.
Section 67 provides: 67 Notice to be given (1) Subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state - (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and (b) if subsection 64(2) is such a provision - the grounds, specified in that provision, on which the party intends to rely. (4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice. (5) The direction - (a) is subject to such conditions (if any) as the court thinks fit, and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.
Ms Graylin, the senior solicitor from the ODPP who instructs the Crown in this matter, swore an affidavit dated 9 October 2020 in support of the Crown's application for the admission of Ms Kyriakopoulos' statement formalised in a notice of motion of the same date.
In the affidavit Ms Graylin states that she had been in regular contact with Ms Kyriakopoulos since February 2017 when the accused's committal hearing was pending in the Local Court. Although Ms Kyriakopoulos had relocated to New York City in April 2012 she acknowledged the receipt of an email from Ms Graylin of 24 January 2017 attaching a subpoena requiring her attendance at the committal. An application for Ms Kyriakopoulos to give evidence by audio visual link at the committal was prepared in circumstances where she had sustained an injury which prevented her from flying to Australia. Ultimately, that application was abandoned as the accused waived their right to a committal proceeding.
Between February 2017 and February 2019, Ms Kyriakopoulos corresponded with the Crown by email on 18 separate occasions where she expressly confirmed her availability and willingness to give evidence at the accused's trial. She participated in a teleconference with the Crown on 1 March 2019.
On 12 March 2019, a subpoena requiring her to give evidence in the trial was filed in this Court. At that time the accused's trial was listed to commence on 13 May 2019. Ms Kyriakopoulos confirmed receipt of that subpoena.
The Crown lost contact with Ms Kyriakopoulos in May 2019, in the sense that she did not respond to a number of emails sent from time to time after that date during the progress of the trial, including over a number of adjournments. The accused was not advised of those developments.
Ms Graylin gave evidence that it was not until she was in the process of preparing a revised draft witness list on 8 September 2020 that she reflected on the fact that the Crown had not had contact with Ms Kyriakopoulos for period of about 18 months. I intend no criticism of Ms Graylin by that observation. I accept that from 8 September 2020 Ms Graylin and her colleague Ms Choi made continued and concerted efforts first to locate Ms Kyriakopoulos, and most recently after she re-established contact with her with the assistance of US authorities, concerted efforts to secure her willingness to attend at the applicant's trial, including via audio visual link, but without success.
Ms Kyriakopoulos currently resides in Washington DC. On 28 September 2020 she advised Ms Choi by email that she was not "available to give evidence" and could not "assist further at this time" principally on the basis of her concerns with COVID-19 and her mother's recent hospitalisation. An email of the same date sought confirmation of Ms Kyriakopoulos' willingness to give evidence at the accused's trial via audio visual link. Ms Kyriakopoulos did not respond to that email. Perhaps understandably, no attempts have been made by the ODPP to renew contact with her thereafter.
The accused were first advised of Ms Kyriakopoulos' "unavailability" on 9 October 2020, being the Tuesday before the week scheduled for the resolution of questions on the voir dire bearing upon the validity of the search warrant and the legality of its execution.

[13]

Consideration

I am satisfied that Ms Kyriakopoulos is "not available" to give evidence "about a fact" having regard to Ms Graylin's evidence that "all reasonable steps have been taken by the Crown to compel Ms Kyriakopoulos to give evidence in the trial (including via audio visual link) without success" (see definition of unavailability in Part 4(1)(g) of the Dictionary of the Evidence Act). There is, however, no explanation for why the accused were not notified until 9 October 2020 of the Crown's intention on 12 October to apply under s 65(2)(c) for the admission of Ms Kyriakopoulos' statement, given that by 28 September 2020 Ms Kyriakopoulos had signalled her unwillingness to participate as a witness in the trial under any circumstances.
The notice requirements in s 67 of the Evidence Act are not merely procedural. The section operates in the present context to prevent the Crown from relying on the exception to the hearsay rule in s 65(2)(c) unless the Crown has given reasonable notice to the accused, in writing, of its intention to adduce the evidence. While I am not satisfied that reasonable notice was given by the Crown of Ms Kyriakopoulos' "unavailability" or, it would seem, any formal notice of the Crown's intention to adduce hearsay evidence by the tender of her statement until a relatively short time before the date scheduled for the convening of the voir dire, such notice as was eventually given was full and complete in its terms sufficient to comply with the notice requirements imposed by s 67(3).
Section 67(4) of the Evidence Act provides that the Court may direct that s 65(2) is to apply despite the Crown's failure to give reasonable notice of its intention to adduce the evidence. The question whether a direction should be given is to be decided in accordance with s 192. Relevantly, insofar as the Crown's application for a direction under s 67(4) that s 65(2) may be relied upon, s 192(2) provides that I must take into account the extent to which the giving of a direction would be unfair to the accused (s 192(2)(b)), the importance of the evidence sought to be adduced and the nature of the proceedings (s 192(2)(d)). [22]

[14]

Should a direction be given under s 192 of the Evidence Act?

Although the issue of unfairness is a matter I am obliged to take into account in determining whether to give a direction under s 67(4), the accused do not submit they might have been able to undertake their own enquiries of Ms Kyriakopoulos if notice had been given of her unavailability earlier than 6 October 2020, or that they made any attempt via the Crown to speak with her when they were made aware of her unavailability. In those circumstances, and where unfairness to the accused by a failure to give reasonable notice is to be assessed essentially referable to whether the accused might have secured the attendance of the witness or spoken to them, I am not of the view that the issue of unfairness carries any weight on the question of whether a direction under s 67(4) should be given.
The "importance" of paragraph 9 of Ms Kyriakopoulos' statement under s 192(2)(c) is to be assessed in the context of the questions that arise on the voir dire, principally whether the yellow envelope (MFI 40) was lawfully seized and whether the manila folder (MFI 39) and its contents, including "Wiles Map 1" and "Wiles Map 2", were within the yellow envelope when it was seized. Since the Crown proposes to tender Ms Kyriakopoulos' statement in the trial, the "importance" of the evidence also needs to be considered in that context, including the provenance of the copies of "Wiles Map 1" and "Wiles Map 2", how they came to be in the Locaway premises such as to be seized by ICAC officers on 23 November 2011 and who had possession of them at that time or at an earlier point in time when, on the Crown case, at least a map with red or pink hatched area, the distinctive feature of "Wiles Map 2", was produced to Gardner Brook by Paul Obeid. [23]
The Crown accepted that the importance of paragraph 9 of Ms Kyriakopoulos' statement in both contexts is limited to her having "a recollection" of a document relating to "a Chinese company" and "an old looking newspaper clipping" when she "glanced" inside "a manila folder" she said she seized with "an envelope" from Paul Obeid's office. Neither of those items were otherwise described by her. The Crown submitted that although Ms Kyriakopoulos makes no reference in paragraph 9 of her statement to seeing either of "Wiles Map 1" or "Wiles Map 2" in the "manila folder", and no reference to "a manila folder" being inside the envelope she seized (or, for that matter, that the envelope was yellow), the fact remains that when the manila folder was removed from the yellow envelope by Ms Stockley on 28th February 2012 and its contents reviewed by her, the manila folder was inside the envelope and it did contain "Wiles Map 1" and "Wiles Map 2", together with a copy of a number of pages of the Australian Financial Review and a copy of a Memorandum of Understanding where "a Chinese company" is nominated as one of the parties to that agreement. The Crown submitted that Ms Stockley finding those two documents is at least consistent with Ms Kyriakopoulos' recollection of the contents of "a manila folder" she seized from Paul Obeid's office, thereby supporting the Crown's tender of MFI 39 and MFI 40 in the trial.
I regard the importance of the evidence of the finding of "Wiles Map 1" and "Wiles Map 2" (in particular, to proof of the fourth particularised act of misconduct as an overt act in furtherance of the conspiracy [24] ), and the nature of the proceedings being a criminal trial alleging a criminal conspiracy of a most serious kind, as worthy of considerable weight on the question of whether a direction should be given under s 67(4).
For those reasons, I am satisfied that a direction under s 67(4) should be given allowing the Crown to pursue its application to tender paragraph 9 of Ms Kyriakopoulos' statement under s 65(2)(c) of the Evidence Act.

[15]

Is paragraph 9 of Ms Kyriakopoulos' statement admissible under s 65(2)(c)?

Mr Neil submitted that if the Court is satisfied that the notice requirements are met or, even if they are not met but the Court gives a direction under s 67(4) allowing the hearsay assertions to be adduced, the Court would not be satisfied that the previous representations extracted from paragraph 9 of Ms Kyriakopoulos' statement set out in [39] above were made in circumstances which make it "highly probable" they are reliable - the precondition to the admissibility of paragraph 9 of Ms Kyriakopoulos' statement under s 65(2)(c).
Addressing the issue of reliability, the Crown relied upon the edited version of a video recording of the execution of the search warrant (MFI 124), including a time stamp where the video footage shows Ms Kyriakopoulos handling a yellow envelope. A series of still images of that segment of the footage was also relied upon [25] . In the Crown's submission, the Court would be satisfied that having regard to that material, the previous representations in paragraph 9 of Ms Kyriakopoulos' statement were made "in circumstances that make it highly probable" that those representations "are reliable", being consistent with that part of the video recording where the yellow envelope and some of its contents are visible. The Crown submitted that it is clear from the video recording and the still images that despite the lack of clarity in the still images and the disrupted sequencing of the progress of the search when the yellow envelope is located, it is possible to discern the edges of "a" manila folder and the edge of "a" piece of newsprint within the bundle of documents associated with the yellow envelope Ms Kyriakopoulos can be seen to handle before she exposes the "Call Option Agreements" to the person who was operating the video camera. The edited video and the still images were also relied upon by the Crown more generally in support of the tender of MFI 39 and MFI 40 in the trial as supporting the continuous handling of the yellow envelope (MFI 40) leading to the later finding by Ms Stockley of "Wiles Map 1" and "Wiles Map 2" in the manila folder contained within MFI 40 on 28 February 2012, in particular because in one discrete segment Ms Kyriakopoulos can be seen to handle the yellow folder bearing a white adhesive sticker, the appearance of the yellow envelope when Mr Hillier entered it in the Property Seizure Record as Item 48 and the appearance of the envelope when Ms Stockley reviews its contents on 28 February 2012.
The Crown also submitted that Ms Stockley's evidence, when taken together with what were said by the Crown to be reliable inferences to be drawn from the documented continuous handling of all of the items seized under warrant (including, most particularly, Item 48 which comprises MFI 39 and MFI 40), and Ms Stockley's evidence as to how she dealt with that item between 22 February and 28 February 2012, there is an additional basis for the Court to find that "Wiles Map 1" and "Wiles Map 2" were in fact seized by Ms Kyriakopoulos on 23 November 2011 from the Locaway premises.
Thus, the Crown submitted, the Court would be satisfied that despite there being no evidence of what, if anything, Ms Kyriakopoulos had access to for the purposes of preparing paragraph 9 of her statement ten months after executing the warrant, and despite the fact that she makes no reference at all in her statement to having seized MFI 40 or any reference at all to the contents of a yellow envelope (including the fact that the manila folder was, on the Crown case, within the yellow envelope when she seized it), there is a "high probability of reliability" in her assertion that at the time she seized what she described as "a manila envelope and folder" she also saw, at a glance, in "the manila envelope" a document relating to "a Chinese company" and "an old looking newspaper clipping", in circumstances where these two documents were found by Ms Stockley on 28 February 2012, together with "Wiles Map 1" and "Wiles Map 2" in the manila folder.

[16]

Consideration

I accept that Ms Kyriakopoulos was one of a number of ICAC officers who attended at the Locaway premises on 23 November 2011 for the purposes of executing the search warrant. She is clearly identifiable in the video recording. In addition, while the video recording supports the Crown case that Ms Kyriakopoulos was the officer who seized a yellow envelope with a white adhesive sticker and, further, that in a separate segment of the video recording there is support for the Crown case that Mr Hillier confirmed, in the presence of Moses Obeid, that a yellow envelope was seized when it was receipted in the Property Seizure Record as Item 48 (but excluding the place where it was found [26] ), paragraph 9 of Ms Kyriakopoulos' statement is expressed in such a way that what she describes as "a manila envelope and folder containing various documents that related to the purchase of property in the Mount Penny area" does not align with the description given to "the yellow envelope" by Mr Hillier when he received it from her. As noted above, Ms Kyriakopoulos makes no reference to the writing on the label on the face of the yellow envelope; in fact she makes no reference to seizing a "yellow" envelope at all.
It is also clear that while Ms Kyriakopoulos ensured that the three bundles of documents representing the Call Option Agreement over Coggan Creek were revealed to the operator of the video camera, she did not ensure at that time, or at any other time, that the manila folder or its contents or where she located that item relative to the yellow envelope was recorded.
Although the Crown submitted that after a careful analysis of the edited video recording of the search, taken together with the still images from that recording, the edge of the manila folder, and what is said by the Crown to be edge of the newspaper article contained within it, are discernible. In my view, the image of either or both of the edge of a manila folder and a newspaper article is at best impressionistic.
Were there a visual recording of the contents of the yellow envelope identifying a manila folder within the yellow envelope or a contemporaneous written record of the individual documents seized, either by Ms Kyriakopoulos or Mr Hillier, there would be no issue. That exercise was not undertaken.
I am not satisfied that Ms Kyriakopoulos' statement was made in circumstances that make it "highly probable" that her recall of the nature of the documents inside the manila folder at "a quick glance" is "reliable" in circumstances where she gives no evidence at all as to why she considered the "folder" to "appear to be relevant and to relate to the investigation" so as to justify the seizure of it.
The following part only of Ms Kyriakopoulos' statement is admitted into evidence: 9. I then conducted a search in the corner office of Paul Obeid. I initially conducted a search at the rear corner of the office from where I recovered various items. … I then handed the items to Ron Hillier, exhibits officer.

[17]

Is that part of the Property Seizure Record relating to the seizure of Item 48 admissible under s 69 of the Evidence Act?

Section 69(2) of the Evidence Act provides that: The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made - (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
Section 69(3) of the Evidence Act provides an exception to subsection (2) in the following terms: Subsection (2) does not apply if the representation - (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding.
It was accepted by both parties that the part of the entry in the Property Seizure Record relating to the seizure of Item 48 which records that the yellow envelope was seized by Ms Kyriakopoulos "in Paul Obied's [sic] office, on [the] desk near [the] corner window", being the particular entry the Crown sought to prove by the tender of the document under s 69 as an exception to the rule against hearsay, satisfies the preconditions to admissibility as a business record in s 69(1)(a)(i) and s 69(1)(b). [27]
The parties also agreed that the entry satisfies the requirement in s 69(2)(b) in that the representation the Crown sought to prove, namely that Item 48 was: (i) located by Ms Kyriakopoulos in Paul Obeid's office; (ii) on his desk; and (iii) near the corner window, was made on the basis of information supplied to Mr Hillier by Ms Kyriakopoulos, a person who I am satisfied might reasonably be supposed to have personal knowledge of those facts.
Mr Neil submitted, however, that s 69(3)(b) operates to preclude the Crown from relying upon the business records exception to the hearsay rule in s 69(2) in circumstances where the Court would be satisfied that the previous representation was made "in connection with an investigation relating or leading to a criminal proceeding".
The expression "in connection with" in s 69(3)(a) and (b) and the expression "in contemplation of" in s 69(3)(a) have been held to be expressions of wide import. [28]
While the subsections operate in different ways (in the sense that only s 69(3)(a) imposes a purposive test) it is for the Crown to demonstrate in both contexts that the document otherwise satisfying the description of a business record "was not prepared or obtained for the purpose of conducting, or for or in contemplation of, or in connection with" the proceedings in which the evidence is sought to be adduced (s 69(3)(a)) or not prepared "in connection with an investigation relating or leading to a criminal proceeding" (s 69(3)(b)).
Although it is accepted that the purpose of s 69(3)(b) is to prevent the introduction of hearsay material that was prepared in an atmosphere or context which may cause it to be self-serving, in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable criminal proceedings, [29] the Court does not need to be satisfied that there was a "likelihood" or "reasonable probability" that in the circumstances in which the record was prepared there was a real risk or in fact any risk at all of the mischief, to which s 69(3)(b) is directed arising before the subsection can be invoked.
Accordingly, while I have no reason to doubt the accuracy of the subject entry in the Property Seizure Record or its reliability, and no reason to express concern that it may have been prepared to assist in the ultimate prosecution of the matters the subject of the investigation by ICAC, the objection taken by Mr Neil to the admission of the part of the Property Seizure Record containing the hearsay assertions is made out.

[18]

The issue of the continuous handling of Item 48 (MFI 39 and MFI 40)

All of the 55 items of property seized pursuant to warrant, including item 11/0363/36/48 (Item 48), were transported by Mr Hillier from the Locaway premises to the ICAC offices before being entered into a property log maintained within the offices of ICAC on 23 November 2011 and stored in the property vault at that location. Item 48 was identified in that log as part of a number of separate items of property identified with the property registration numbers "11/0363/36/ 36-55" attributed to them by Mr Hillier at the Locaway premises.
On 24 November 2011, the document(s) that comprise item 11/0363/36/48 were entered into the MOCCA (ICAC's computerised records system) by Mr Azaola, another ICAC officer, assisted by Records and Property Assistant, Ms Parrott. That process involved entering the property item registration number, noting the formal power under which the property was seized, the date the property was received and its source, including a description of the property as Mr Azaola observed it at the time he entered it into MOCCA and the location within ICAC where seized property (or other property) will be stored.
In the MOCCA record, item 11/0363/36/48 was described as "Envelope marked "to be collected Gerard Obeid - containing various documents incl. plain folder marked "Dulux"". This is the first record of the manila folder being within the yellow envelope. There is no notation of the contents of the manila folder. Mr Azaola then returned Item 48 to the vault. Thereafter, movements of seized property from the vault are recorded in the MOCCA System referable to the date the property was removed, the name of the property officer who retrieved the property, the name of the ICAC officer who took custody of the property, the date the officer returned the property to the vault, the name of the ICAC officer returning the property, the name of the property officer who received the property and the location in which the property is then stored.
Relevant pages of the MOCCA system were tendered showing the following movements of item 11/0363/36/48 after the item was entered onto the system on 24 November 2011: 1. On 22 February 2012, ICAC officer Ms Stockley under direction from chief investigator Fox retrieved Item 48 from the Commission's Property Division as part of a review all property registration numbers 11/0363/36/ 29 - 11/0363/36/55. The MOCCA system shows that Item 48 was returned to the vault 5 March 2012. 2. The System also shows movement of the item on 12 March 2012 and then again on 1 August 2012.
The movement of 11/0363/36/48 after it was returned to the vault on 5 March 2012 has no bearing on the continuity issue raised on the voir dire given Ms Stockley's evidence that she reviewed the item on 28 February 2012, having had management and control of it for six days between 22 February and 28 February 2012, and noted its contents as including all of the documents that comprise MFI 39 and MFI 40, including "Wiles Map 1" and "Wiles Map 2".
An obvious continuity issue arises by reason of Ms Stockley's "handling" of Item 48 between 22 February and 28 February 2012 in that although she took possession of Item 48 on 22 February 2012 she did not note or review its contents for six days.
Ms Stockley gave evidence that she did not attend the ICAC offices on Thursday 23 February or Friday 24 February 2012. She was at work on Monday 27 February 2012 but was required to attend to other duties outside the office. She gave evidence that on Tuesday 28 February 2012 she resumed her review of the property she had retrieved from the vault, and that it was on that day that she identified and described the property which comprised Item 48, the contents of which were recorded on an Excel spread sheet. [30]
Ms Stockley gave evidence that in the event that documents or other property retrieved from the vault for whatever reason were not returned on the same day, she had three ways of storing those items either overnight or over a period of days. All three storage options were at her desk. The first, it seems, was to leave the document or other property on her desk. The second was to store the materials in her overhead locker and, the third, to store them in the bottom drawer of a lockable three door cabinet she shared with another investigator with whom she shared the key.
There is no evidence as to whether the overhead locker was lockable with a key and no direct evidence as to which of those three locations was where Item 48 was stored for six days between 22 and 28 February 2012, including whether it was stored together with other items Ms Stockley retrieved for review on 22 February 2012.
She gave the following evidence: Q. Can you recall where you stored the item 48, now 39 and 40 MFIs, between 22 February and 5 March? A. So for a period of time they were stored at my desk. I cannot recall whether it was in my overhead locker or the bottom drawer that I shared with Annmarie. I ‑ certainly some of it would have been stored in my overhead locker, but looking at the number of exhibits that were there and not being able to actually recall what they all were, it's possible they may not have all fit in my overhead locker so it's possible that some of them were stored in the bottom drawer of the lockable cabinet. However, they were at my desk until I completed the property review, which did span a number of days, and then I took them to our administrative officers for photocopying and they were in their custody in the room that they worked in. [31]
What is clear, however, is that on 28 February 2012 the contents of item 11/0363/36/48, that it, the documents comprising MFI 39 and 40, an item which Ms Stockley describes as an A3 yellow envelope bearing a white sticker with the words "to be collected Gerard Obeid", contained the manila folder with the handwritten word "Dulux" on the inside of the back cover, were identified. Contemporaneous records confirm that fact.
After undertaking a review of the documents and reporting the results of her review to Mr Fox, Ms Stockley returned Item 48 to ICAC's property division on 5 March 2012. At her direction, the "Dulux" folder was given a further but related identification number, being 11/0363/36/48/1.
It was not suggested to Ms Stockley in cross-examination that she did not locate the manila folder in the circumstances she deposed to in her evidence.
I am satisfied that the Excel spreadsheet prepared by Ms Stockley and forwarded to Mr Fox on 29 February 2012 establishes that as at 28 February 2012, "Wiles Map 1" and "Wiles Map 2" (although not described in that way by her but rather described by reference to the date of each map) were identified by her, together with the newspaper pages and the Memorandum of Understanding being within what Ms Stockley described as a "plain folder marked Dulux" which carried the property identification number 11/0363/36/48. Those same records also establish that the yellow envelope, together with three copies of the Call Option Agreement described above, but without any reference to one being contained within the other, retained the original property identification number 11/0363/36/48. I note, however, that Ms Stockely's statement of 14 November 2012 and her evidence on the voir dire was that the manila folder was within the yellow envelope when she received it. [32]

[20]

Was the search warrant validly issued and was 11/0363/36/48 (comprising MFI 39 and MFI 40) lawfully seized under the warrant?

The parties acknowledge that in recognition of the fact that the statutory power that authorises a search of persons or premises under warrant is an exceptional power to be exercised only under the conditions which justify its issue, legislation authorising the issue of search warrants and the terms upon which they are issued are construed strictly.
It was also common ground that only a validly issued and lawfully executed search warrant is capable of authorising the invasion of a person's home or other premises occupied by them or over which they exercise control, including authorising the seizure of property from those premises and, further, that only a validly issued and lawfully executed search warrant will protect an executing official from an allegation of trespass or any other allegation of impropriety. [33]
Settled authority also emphasises that although it is unnecessary and even undesirable to attempt any exhaustive statement of the procedures which police officers, or other investigative officers authorised under statute to exercise the powers of search and seizure, are obliged to follow in the execution of search warrants, it is clear that in addition to any particular limitations on a statutory power to search or statutory requirements on the procedures that must be followed in the course of the search, certain fundamental considerations are of general importance in considering whether the power to search and seize is exercised properly and fairly. [34] Those considerations include the importance of fairness to those who are directly affected by the exercise of the power to search for and to seize documents and other things, and the need for officers executing a warrant to strictly follow the directions contained within the warrant itself in order to ensure that the limits of the authority the warrant confers are not exceeded whether intentionally, recklessly or inadvertently.
Finally, the parties also acknowledge the supervisory role of the Court in ensuring that the power to search under warrant is exercised lawfully.
In Smethurst v Commissioner of Police [2020] HCA 14, Kiefel CJ, Bell and Keane JJ said: The protective purpose to which these provisions [s 3E of the Crimes Act 1914] are directed is achieved by ensuring that each of the issuing officer, the officer executing the warrant and the persons affected by the warrant understand what is the object of the search and the limits to it. The issuing officer obviously needs to appreciate the boundaries of the authorisation which is to be given. The executing officer and those affected by the warrant must likewise understand the object of the search and comprehend the limits to the scope of the search which has been authorised. In each case this can only be achieved by the nature of the offence the object of the warrant being stated on the face of the warrant, in a way which is both intelligible and sufficient to convey what those concerned with or affected by the warrant need to understand.
While in Smethurst the High Court was concerned with the need for specificity in the description of "the indictable offence" which grounds the issue of a warrant issued under s 3E of the Crimes Act 1914 (Cth), and with the need for the issuing officer to state with specificity the offence or offences to which the warrant relates, those same considerations necessarily apply when the validity of a search warrant issued under other federal or state legislation is challenged. Those considerations also include, inter alia, the need to specify the kinds of evidential material that are to be searched for under the warrant in order that the executing officers understand the limits of the scope of the warrant and the limitation on the statutory power to seize such items as might be located during a search.
The challenge to the seizure of MFI 39 and MFI 40 mounted by Mr Neil (and supported by the legal representatives for Mr Macdonald and Edward Obeid) does not require the Court to engage in a detailed analysis of the intended operation of the power under s 40 of the ICAC Act, or to undertake a detailed analysis of what is encompassed by an investigation under s 3(1) of that Act, including ICAC's investigative function encapsulated in s 13(1) of the Act and the definition of corrupt conduct under ss 7, 8 and 9 of the Act.
It is sufficient for present purposes to note that s 41 of the ICAC Act sets out the powers of search and seizure authorised by a search warrant granted under s 40 to include, in s 41(1)(b), the conferral of authority to the person(s) named in the warrant to search premises for documents or other things "connected with any matter that is being investigated under this Act". In that connection, it is also sufficient, again for present purposes, to note that irrespective of the breadth of what is encompassed by the nature of corrupt conduct in s 8 of the ICAC Act, conduct does not amount to "corrupt conduct" unless it "could constitute or involve" (again relevantly for present purposes) either, s 9(1)(a), a criminal offence or s 9(1)(d) in the case of the conduct of a Minister of the Crown - a substantial breach of an applicable code of conduct.
I accept that because of the way the warrant is framed, no criminal offence under the Crimes Act 1900 (NSW) is particularised and no common law offence of misconduct in public office is specified or particularised. I also accept that no facts are alleged which would support a properly particularised allegation that Edward Obeid misused confidential information, where charged with a common law offence or an offence under statute. In addition, the nature of the confidential information is not specified; neither are there particulars of how it was misused by Edward Obeid or the circumstances in which it was either disclosed to Gardner Brook or used by that person "to assist" Monaro Mining to secure an exploration licence.
I am not satisfied, however, that the warrant under review here is in any sense analogous to the warrant declared to be invalid by the High Court in Smethurst, or that the way in which the warrant is framed would otherwise offend against the need for a warrant issued under s 40 of the ICAC Act to identify with sufficient particularity the matter that was being investigated by ICAC under the ICAC Act and according to which the authorising officer was satisfied the warrant should issue.
I reject the submission advanced by Mr Neil that the warrant should be struck down as invalid because it is general in nature or impermissibly vague in its scope or terms.
I am not, however, satisfied that the search warrant, on any available construction, authorised the seizure of the entire contents of MFI 39, in particular, the seizure of "Wiles Map 1" and "Wiles Map 2" or the newspaper article. I reject the Crown's submission that "a map" or "newspaper article" could be meaningfully accommodated within the general category of "notes or correspondence" where those words appear in the warrant.
In addition, I am not satisfied that Ms Kyriakopoulos gave any consideration to the question whether the seizure and contents of MFI 39 were within the scope of the warrant when she handed the yellow envelope containing the manila folder to Mr Hillier. For that further reason, I am not satisfied that "Wiles Map 1" and "Wiles Map 2", the newspaper article, or the Memorandum of Understanding contained in the manila folder inside the yellow envelope, were validly seized under the warrant.
I am satisfied, however, that the documents in MFI 40 were lawfully seized under the warrant. The Call Option Agreement (copies of which are in MFI 40) nominating Geble Pty Ltd (a company named in the warrant) as a party were identified by her in the course of which she exposed them to the video record as part of that process. [35]

[21]

Justifying the admission into evidence of MFI 39

Section 138(1) of the Evidence Act provides: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained - (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
Section 138(3) of the Evidence Act provides: (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account - (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
In submissions, the parties focused upon the matters in s 138(3)(a)-(e) as the material considerations to be weighed in determining whether the discretion to admit MFI 39, including "Wiles Map 1" and "Wiles Map 2" (as well as the newspaper article and the Memorandum of Understanding), should be exercised.
The Crown submitted that the probative value of the evidence resides principally in the fact that "Wiles Map 1" and "Wiles Map 2", when seized, were in the joint possession of each of Paul Obeid, Gerard Obeid and the accused Edward Obeid and Moses Obeid as joint occupiers of the Locaway premises. The Crown submitted that evidence is fundamental to proof of the fourth act of misconduct alleged to have been committed by Mr Macdonald in furtherance of the conspiracy charged, including what the Crown anticipated would be Gardner Brook's evidence to the effect that "Wiles Map 2" was produced by Paul Obeid at a meeting attended by Moses Obeid to designate the area where the Obeids owned rural property under which they believed a coal resource to be located and an adjacent or contiguous area where a more substantial coal resource was believed to be located. [36]
Following the conclusion of the voir dire, Mr Brook gave evidence of being shown a map with a "red or pink hatched area", the distinctive appearance of "Wiles Map 2". [37]
The Crown also submitted that the Court would be satisfied that the seizure of MFI 39 was the result of inadvertence on Ms Kyriakopoulos' part as distinct from her deliberately seizing documents that either fell outside the scope of the warrant or deliberately failing to assess whether they were within the scope of the warrant. The Crown also submitted that Mr Hillier's failure to identify the contents of the yellow envelope at the time of seizure (which on the Crown case would have revealed MFI 39) was due to what might be seen as a failure of systems utilised by ICAC to ensure a full inventory was made of documents immediately upon their seizure and again upon their reception into the property storage system in place at the ICAC offices.
The Crown also submitted that the Court would be satisfied that despite there being no contemporaneous written record of the contents of the yellow envelope at the time it was seized and entered into the Property Seizure Record at the Locaway premises on 24 November 2011, and despite criticisms of Mr Hillier and his system for document handling in the process of the warrant being executed, the yellow envelope (Item 48), together with all the items seized and removed from the premises (the remaining 54 items), were ultimately the subject of a secure document handling process and review internal to ICAC, such that when "Wiles Map 1" and "Wiles Map 2" were discovered in the manila folder inside the yellow envelope on 28 February 2012 by ICAC officer Ms Stockley, the Court would be satisfied that they were in fact contained and retained in the manila folder (MFI 39) inside the yellow envelope (MFI 40) together with the other documents found and identified at the time Item 48 was seized.
Mr Neil submitted that there was a gross failure of procedure on the part of ICAC officers executing the warrant in that, at the time of the search, no attempt was made by searching officers, the property officer or the warrant holder to ensure that Moses Obeid, who was nominated as the person upon whom the Occupier's Notice was served, was given the opportunity to consider the nature of any seized documents, including MFI 39, other than by being invited to confirm that the Property Seizure Record correlated with the items logged referable to the very general description given to them by Mr Hillier and, in the case of Item 48, only by the general descriptor, "'Envelope containing various documents Marked 'To be collected Gerard Obied [sic]", without any reference to the contents of the envelope.
Mr Neil submitted that while it may have been time-consuming to have invited Moses Obeid to consider the contents of any one of the large number of boxes and folders itemised by number in Mr Hillier's Property Seizure Record, the failure to do so derogated from the his rights as an "occupier" enshrined in the Occupier's Notice. [38] Mr Neil submitted that in this case a succession of procedural failures have operated to the prejudice of the accused since,e at the time of the search, neither of "Wiles Map 1" and "Wiles Map 2" were shown to Moses Obeid or individually recorded as seized in the Property Seizure Record. Mr Neil submitted that, were that to have occurred, it would have been open to Moses Obeid to have considered whether the maps (or the newspaper article) fell within the scope of the warrant and, were he in doubt about that, to seek legal advice. Mr Neil emphasised that it would appear that the first opportunity he (or the other accused) had to consider his or their position was when the "maps" were publicly produced in the ICAC hearings in November 2012. By that time, any reliable reconstruction of the continuous handling of those documents to establish their provenance was severely compromised.
Mr Neil submitted that this is not an ordinary case where an accused claims that evidence has been seized improperly or in contravention of an Australian law or in consequence of an impropriety or contravention of an Australian law. He submitted that the procedural irregularities in the execution of the warrant revealed on the voir dire, including the unauthorised seizure, most particularly of "Wiles Map 1" and "Wiles Map 2" by Ms Kyriakopoulos, and her apparent failure to give any consideration at all to whether the seizure of the documents was justified within the scope of the warrant is very serious, given the considerable power that is wielded by ICAC under the authority of the State of New South Wales. He submitted the illegal and improper conduct of the ICAC officers is of such gravity that, irrespective of what might be said by the Crown to be the importance of the evidence to its case, and irrespective of the nature of the offence which is being prosecuted on indictment, the Crown has not discharged the onus of establishing under s 138(1) that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence given the way in which the evidence was obtained.

[22]

Consideration

Consideration of the balancing exercise in s 138(1) which obliges the Court to weigh competing considerations, including, but not exclusively, those in s 138(3) which might favour the admission of the evidence against those supporting exclusion of the evidence, must be undertaken in this case having regard to the particular circumstances in which "Wiles Map 1" and "Wiles Map 2" (as well as the newspaper article and the Memorandum of Understanding) were obtained. [39]
While I have found that both maps and the newspaper article were obtained in contravention of an Australian law, in the sense that they were removed from the premises where they were kept, both in breach of the purported exercise of the statutory power under s 41 of the ICAC Act because they did not fall within the scope of the warrant issued on the application of the Commission and, to a lesser degree, because those documents and the Memorandum of Understanding were obtained in consequence of the failure of ICAC officers (each of Ms Kyriakopoulos, Mr Hillier and Mr Fox) to identify the documents to Moses Obeid as the occupier to whom the Occupier's Notice was served, before they were taken into the physical custody of ICAC and removed from the Locaway premises, I have not found, and in fact have not been asked to make a finding that the conduct of the ICAC officers generally in the execution of the warrant traversed, in any practical sense, the minimum standards which ought be expected of ICAC officers entrusted with the statutory powers under the ICAC Act.
Additionally, while I have found that the seizure of the maps and the newspaper article was not, as a matter of statutory construction, authorised under the terms of the warrant because, after objection, only a heavily redacted version of Ms Kyriakopoulos' statement is in evidence, and because the video recording does not show Ms Kyriakopoulos handling the maps (or the newspaper article) or taking them into her custody, there is simply no evidence to inform the question of MFI 40 [40] (which I am satisfied contained the manila folder (MFI 39) at the time of seizure [41] ) was seized in deliberate defiance of what she knew was the limited scope of the warrant for the same reason there is no evidence to inform the question of whether her conduct in seizing the manila folder was reckless, in the sense that she gave consideration to whether or not the contents of the manila folder fell within the scope of the warrant but determined to seize the folder anyway without giving appropriate thought to whether she was acting lawfully in doing so.
Having regard to the entire contents of the evidence admitted on the voir dire, there is at least an available inference that the manila folder in MFI 39 containing "Wiles Map 1" and "Wiles Map 2" was seized inadvertently, in the sense that Ms Kyriakopoulos resolved to seize the draft Memorandum of Understanding which cited Monaro Mining as a party (a document which I have found was properly within the scope of the warrant were she to have given consideration to that question) but that when the manila folder in which that document was found was handed to Mr Hillier, together with the yellow envelope, she did not notice or take note of the remaining contents of the manila folder, being the maps and the newspaper article.
In the result, I am satisfied that the discretion in s 138(1) should be exercised and MFI 39 admitted into evidence as Exhibit X and MFI 40 entered into evidence as Exhibit Y.

[23]

Endnotes

See generally Exhibit Q - Mr Rumore's transcribed conference notes.
T2815.
It is the Crown case that these "maps" included at least "Wiles Map 2" and it was that map that was used to designate the "contiguous" area.
MFI 122.
Section 48 of the ICAC Act provides, with some exceptions not presently relevant, that Div 4 of Part 5 of LEPRA applies with respect of the issue of search warrants under the ICAC Act but including, relevantly for present purposes, s 67 of LEPRA which requires that an occupier's notice be provided in the form prescribed under the Regulations to that Act. The Regulations in force at the time of the issue and execution of the warrant were the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW).
MFI 124A.
MFI 122.
A version of this judgment circulated to the parties erroneously cited Law Enforcement (Powers and Responsibilities) Regulation 2016 reg 9(1) as opposed to Law Enforcement (Powers and Responsibilities) Regulation 2005 reg 8(1). Both regulations relevantly provide that a person who seizes a thing while executing a search warrant (other than a covert search warrant - Law Enforcement (Powers and Responsibilities) Regulation 2016 reg 9(1)) in any premises must provide the occupier of the premises with a receipt acknowledging seizure of the thing if the occupier is then present and it is reasonably practicable to do so. Law Enforcement (Powers and Responsibilities) Regulation 2005 reg 8(1) does not contemplate the execution of a covert search warrant.
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 1) [2019] NSWSC 322.
MFI 122.
There is evidence adduced in the trial as to the circumstances in which "Wiles Map 1" and "Wiles Map 2" were prepared by Ms Leslie Wiles, a geologist employed by the Department of Primary Industries (DPI), in May 2008, and the circumstances in which both maps were subsequently provided to Mr Macdonald for his consideration in the process of the government preparing for the release of what ultimately became the 11 coal exploration licences in the Western Coalfields, including the Mt Penny exploration licence.
T 2919.
In Exhibit A at p 874.
See refinement of Crown case in MFI 134 and MFI 134/1 and the indictment in this matter.
See MFI 124.
A submission that was advanced in large part on the basis that the Crown's application to tender Ms Kyriakopoulos' statement was refused - see [33].
Statements of Manuel Azaola and Julie Parrott.
MFI 124A.
MFI 125.
MFI122.
The facts or assertions of fact the Crown sought to prove by the tender of par 9 of Ms Kyriakopoulos' statement are set out at [39] below.
Section 192(2)(a) had no relevant bearing on the application for a direction in this case.
T 2844.
MFI 2, MFI 134, MFI 134/1.
MFI 125.
See my ruling that the previous representation in the property seizure record is not admissible under s 69.
See Mr Hillier's evidence that he was told these things by Ms Kyriakopolous and entered them onto the Property Seizure Record at T 2719.
R v Rondo (2001) 126 A Crim R 562.
Vitali v Stachnik [2001] NSWSC 303, [12]; see also ALRC 102 [8.151].
MFI 122.
T 2688.42-2699.5
T 2681-2.
See George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at 110-111 and Smethurst v Commissioner of Police [2020] HCA 14 per Keifel CJ, Bell and Keane at [22]-[23].
See Crowley v Murphy (1981) 52 FLR 123 at 141.
While the Memorandum of Understanding was within the scope of the warrant, it nominates Monaro Mining as the company said to have secured the exploration licence by the provision to it of the confidential information Edward Obeid is alleged to have misused, the matter that as at November 2011 ICAC was investigating.
T 2846.
T 2844.
MFI 122.
See Kadir v R [2020] HCA 1 at [38].
This fact is established by the tender of the seizure record and the video recording.
This fact is established by Mr Azaola's evidence taken together with Ms Stockley's evidence. 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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