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

Judgment

1. HER HONOUR: Objection was taken by each of the accused to what was said to be the prejudice occasioned to each of them by the Crown serving a document titled "Particulars of Crown case as at 19 October 2020" [1] on 20 October 2020, day 52 of the trial.
2. On 30 October 2020, day 59 of the trial, in the course of argument as to whether the Crown should be permitted to amend or revise its case in the way foreshadowed, the document served on 20 October 2020 was further revised. The revised document is titled "Particulars of Crown case as at 30 October 2020". [2] For the purposes of this judgment that document will be referred to as "the Revised Statement of Particulars".
3. The Revised Statement of Particulars was in the same general format as a document headed "Particulars of Crown case" served on the accused on 20 March 2019, and amended by a letter of 1 May 2019, following a request for further and better particulars by the legal representatives of Moses Obeid by their letter of 19 March 2019. That document will be referred to in this judgment as "the 2019 Statement of Particulars". It reflects the way in which the Crown opened its case on 10 February 2020 and the way in which the Crown case has been conducted to date.
4. In order to appreciate the significance of the amendments or revisions to the Crown case as originally particularised in the 2019 Statement of Particulars (the amendments that are notified in the Revised Statement of Particulars), and in order to assess the complaint made by each of the accused that the amendments the Crown seeks to make to its particularised case at this time amount to the Crown advancing a different or an alternative case, or a new case theory, an approach which is said by the accused to be productive of procedural unfairness, it is useful to set out in a summary way the course of the trial proceedings to date.
5. After a number of interlocutory hearings in 2019, including an application by Mr Macdonald for a stay of his trial [3] , the joint trial of the accused was listed to commence as a jury trial on 3 February 2020. On 20 November 2019 the trial date of 3 February 2020 was vacated and the trial was relisted to commence on 10 February 2020. Following an application for a "judge alone trial" by each of the accused which was opposed by the Crown, I made an order on 12 December 2019 in accordance with s 132 of the Criminal Procedure Act 1986 (NSW) that the trial commence on 10 February 2020 without a jury. [4]
6. On the first day of trial, the Crown sought leave under s 20 of the Criminal Procedure Act to amend the indictment on which the accused were originally arraigned on 6 October 2017 and amended on 8 April 2019, to charge a reformulated count of conspiracy to commit the common law offence of wilful misconduct in public office. [5]
7. The 2019 Statement of Particulars was marked MFI 2 on the Crown's application to amend the indictment.
8. The indictment as at 8 April 2019 was framed as follows: IAN MICHAEL MACDONALD and EDWARD MOSES OBEID and MOSES EDWARD OBEID 1. Between about 1 September 2007 and about 31 January 2009 at Sydney and elsewhere in the State of New South Wales (NSW), conspired together that Ian Michael Macdonald (Macdonald) in the course of or connected to his public office as Minister for Mineral Resources would wilfully misconduct himself, without reasonable cause or justification, by doing acts in connection with the granting of an exploration licence at Mount Penny NSW: (a) without impartiality on the part of Macdonald; and/or (b) in breach of Macdonald's duties of proper confidentiality; and (c) concerning the interests of Edward Moses Obeid, Moses Edward Obeid, and/or their family members and/or associates, such misconduct being serious and meriting criminal punishment having regard to the responsibilities of the Office and the Officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.
9. The proposed amended indictment was framed as follows: IAN MICHAEL MACDONALD and EDWARD MOSES OBEID and MOSES EDWARD OBEID 1. Between about 1 September 2007 and about 31 January 2009 at Sydney and elsewhere in the State of New South Wales, each of the accused conspired together that Mr Macdonald would, in the course of or connected to his public office as Minister for Mineral Resources in the Executive Government of the State of New South Wales, wilfully misconduct himself, without reasonable cause or justification, by doing acts: (a) in connection with the granting of an exploration licence at Mount Penny in the State of New South Wales; and (b) concerning the interests of Edward Moses Obeid and/or Moses Edward Obeid and/or their family members and/or associates; and (c) knowingly or recklessly in breach of: (i) his duties and obligations of impartiality as a Minister in the Executive Government of the State of New South Wales; and/or (ii) his duties and obligations of confidentiality as a Minister in the Executive Government of the State of New South Wales, such misconduct being serious and meriting criminal punishment having regard to the responsibilities of the Office Mr Macdonald occupied as Minister for Mineral Resources and his responsibilities as the holder of that Office, the importance of the public objects which the Office and the Officeholder serve and the nature and extent of the departure from those objects.
10. The application to amend the indictment was opposed on various grounds. Mr Martin, counsel for Mr Macdonald, complained about a lack of particularity in the conspiracy alleged and/or a lack of particularity in the identification of what the Crown alleged to be the acts of wilful misconduct that Mr Macdonald agreed with Edward Obeid and Moses Obeid that he would commit (in public office). Ms Francis, counsel for Edward Obeid, submitted that the charge as reformulated was duplicitous. Mr Neil QC, senior counsel for Moses Obeid, opposed the application to amend the 8 April 2019 indictment to include the specific allegation that the accused agreed that Mr Macdonald would wilfully (that is, deliberately) misconduct himself in public office either by knowingly acting in breach of his ministerial duties and obligations or being reckless as to whether his acts were in breach of the duties and obligations attaching to his office. Mr Neil also raised the possibility that his client might demur to the indictment irrespective of whether the Crown's application for leave to amend was granted.
11. After reserving judgment on the Crown's application to amend the indictment, the Crown notified the parties and the Court of a further refinement of the indictment the Crown proposed to prosecute at the trial of the accused. The accused did not oppose leave being granted to file the further amended indictment and, on 12 February 2020, the accused were re-arraigned on that indictment. Each of the accused entered pleas of not guilty.
12. The charge upon which the accused were arraigned differs only from the proposed amended indictment set out at [9] above by deleting the element of mens rea in paragraph (c) in the alternative.
13. The Crown case as ultimately formulated is that Mr Macdonald acted "knowingly" in breach of his duties and obligations of impartiality and/or in breach of his duties and obligations of confidentiality.
14. Consistent with the way the Crown particularised its case in the 2019 Statement of Particulars, Ms Callan SC opened the Crown case on the basis that each of the accused became party to the conspiracy between September 2007 and May 2008, and that they each participated in the conspiracy for the entirety of the offence period, namely between about 1 September 2007 and about 31 January 2009. In the opening (and again consistent with the 2019 Statement of Particulars) the unlawful agreement the subject of the conspiracy was particularised as an agreement that Mr Macdonald would wilfully misconduct himself in relation to the granting of a coal exploration licence at Mount Penny in New South Wales, so as to favour the interests of Edward Obeid and/or Moses Obeid and/or their family members and/or associates. [6]
15. The 2019 Statement of Particulars also particularises the Crown case against each of the accused referable to what is said to be the "overt acts and/or declarations" by each of them in furtherance of the conspiracy, and by other particularised acts or declarations of each of them said by the Crown to evidence their participation in the conspiracy and to conceal the existence of the conspiracy. [7]
16. The accused have not sought further particulars of the alleged acts of wilful misconduct by Mr Macdonald said by the Crown to be the subject of the conspiracy either referable to the April indictment or the reformulation of the charge upon which they were ultimately arraigned. Neither have they sought any further particulars as to any aspect of the form in which the indictment is framed.

The Acts of Misconduct

1. In the 2019 Statement of Particulars and in opening the Crown set out nine alleged acts of wilful misconduct committed by Mr Macdonald between 9 May 2008 and 13 January 2009 in breach of the Ministerial Code of Conduct and Ministerial Handbook. These are identified by the Crown as "the acts comprising the wilful misconduct alleged in the indictment" and the overt acts committed by Mr Macdonald in furtherance of the conspiracy. The Crown further alleges that Mr Macdonald would not have acted as alleged "but for" the improper purpose of advancing the interests of Edward Obeid, Moses Obeid and/or their family members and/or their associates. [8]
2. There is an understandable degree of convergence between the overt acts allegedly committed by Mr Macdonald in furtherance of the conspiracy (being the nine alleged acts of wilful misconduct) and some of the overt acts of both Edward Obeid and Moses Obeid. That convergence is reflected in the following analysis: 1. Where the fourth act of wilful misconduct alleges that on or after 5 June 2008 Mr Macdonald caused Edward Obeid, Moses Obeid or another member of the Obeid family to be provided with confidential information in the form of an A3 copy of "Wiles Map 1" and "Wiles Map 2" [9] , the Crown particularises its case against Moses Obeid and Edward Obeid by alleging that they either received those maps or another member of the Obeid family received those maps [10] ; 2. Where the sixth act of wilful misconduct alleges that between 17 June and 23 July 2008 Mr Macdonald communicated to Edward Obeid and/or Moses Obeid that the EOI process for Mount Penny was to commence at the end of July 2008 [11] , the Crown particularises its case against Moses Obeid and Edward Obeid by alleging that between the same dates they received that information from Mr Macdonald [12] ; 3. Where the seventh act of wilful misconduct alleges that on or after 7 July 2008 Mr Macdonald caused Edward Obeid, Moses Obeid or another member of the Obeid family to be provided with a list of companies proposed to be invited to participate in the EOI process or information as to the companies on that list [13] , the Crown particularises its case against Moses Obeid and Edward Obeid by alleging that between the same dates they received that information from Mr Macdonald [14] ; 4. Where the eighth act of wilful misconduct alleges that on or after 14 August 2008 Mr Macdonald caused Edward Obeid, Moses Obeid or another member of the Obeid family to be provided with a memorandum entitled "Coal allocation" dated 5 August 2008 [15] , including a page of the memorandum with the heading MEDIUM COAL ALLOCATION AREAS and a map titled "Proposed Coal Release Areas for EOIs" (Schiavo Map 3), the Crown particularises its case against Moses Obeid and Edward Obeid by alleging that on or after the same date that either they or another member of their family received that information from Mr Macdonald [16] ; 5. Where the ninth act of wilful misconduct alleges that between 27 November 2008 and 13 January 2009 Mr Macdonald communicated to Edward Obeid and/or Moses Obeid that the EOI process was to be (or was) reopened to allow the "White Group" of companies (including Cascade Coal) to apply [17] , the Crown particularises its case against Moses Obeid and Edward Obeid that between the same dates they or another member of their family received that information from Mr Macdonald [18] .
3. The revisions or amendments to the 2019 Statement of Particulars in the Revised Statement of Particulars served on each of the accused on 30 October 2020 and provided to the Court on the same date were highlighted for ease of reference. In one instance an entire paragraph is deleted. [19] In other instances words are added or deleted to some paragraphs and the particulars of other paragraphs are revised, principally, but not exclusively, by reference to dates.
4. In the Revised Statement of Particulars, the Crown's particularised case against each of the accused, as analysed in 18, (c) and (e) above, is replicated, without amendment. The amendments that are the subject of complaint by each of the accused, are the fourth and eighth acts of ministerial misconduct as enumerated in the 2019 Statement of Particulars and analysed in 18 and (d) above. [20]
5. The amendment to the fourth act of wilful misconduct (and the consequential amendment to the particulars of overt acts as alleged against Edward Obeid and Moses Obeid in 18 above) deletes the reference to the size of the copy of "Wiles Map 1" and "Wiles Map 2", namely "A3", that Mr Macdonald caused to be provided to Edward Obeid and/or Moses Obeid or another member of the Obeid family (being maps which Moses Obeid and Edward Obeid received or maps which another member of the Obeid family received). That is the amendment deletes the reference to the maps being in "A3" format. The revised particulars also extend the time frame over which that act of misconduct was allegedly committed to a date range between 9 May and 9 July 2008, in substitution for the date, as originally framed, being on or after 5 June 2008.
6. Accordingly, the fourth act of misconduct under the Revised Statement of Particulars alleges that in the period from 9 May to 9 July 2008 Mr Macdonald caused "a copy" of "Wiles Map 1" and "Wiles Map 2" to be provided to Edward Obeid, Moses Obeid or another member of the Obeid family in breach of his duties of confidentiality and impartiality. The corresponding paragraphs in 8(c) and 11(b) of the Revised Statement of Particulars allege that in the same timeframe either Edward Obeid or Moses Obeid or a member of their family received "a copy" of "Wiles Map 1" and "Wiles Map 2" in furtherance of their agreement that Mr Macdonald would wilfully (that is, deliberately) misconduct himself in public office.
7. The amendment to the eighth act of misconduct and the consequential amendments to the acts of misconduct alleged against each of Edward Obeid and Moses Obeid in 18 above, also includes an amendment to the date on or after which that act of misconduct allegedly occurred. The allegation in the 2019 Statement of Particulars that the act of misconduct occurred "on or after 14 August 2008" is amended to allege an act of misconduct committed "on or after 23 July 2008". The Revised Statement of Particulars also deletes any reference to Edward Obeid or Moses Obeid, or another member of the Obeid family, being provided with "a memorandum titled "Coal allocation" dated 5 August 2008 or part thereof", whilst retaining the allegation that a page "with the heading MEDIUM COAL ALLOCATION AREAS and a map titled "Proposed Coal Release Areas for EOIs" dated 21 July 2008 (Schiavo Map 3) were provided, or were caused to be provided, to Edward Obeid, Moses Obeid, or another member of the Obeid family in breach of Mr Macdonald's duties of confidentiality and impartiality.
8. The corresponding amendment to 8(f) and 11(g) of the Revised Statement of Particulars now alleges that Edward Obeid and Moses Obeid, respectively, received a document "with the heading MEDIUM COAL ALLOCATION AREAS and a map titled "Proposed Coal Release Areas for EOIs" dated 21 July 2008 (Schiavo Map 3), deleting any reference to the memorandum titled "Coal allocation" dated 5 August 2008 (or any part of that document) as the source of the documents allegedly provided by Mr Macdonald and received by either Edward Obeid or Moses Obeid or another member of the Obeid family.

Applicable law

1. The relevant authorities make clear that whether or not the Crown will be permitted to depart from its particularised case will depend, inter alia, on the circumstances of the case under consideration, including: 1. the extent of departure from the Crown case as initially advanced at trial including, importantly, whether it was foreshadowed at a time when the Crown was still in its case; 2. any procedural unfairness to the accused by the change to the way the Crown puts its case and the remedy that is sought to remedy that unfairness; and 3. the extent to which the change to the Crown case may be supported by the evidence.
2. Those general principles apply irrespective of whether a substantive offence or a conspiracy is charged. They reflect the fundamental right of every accused person to know, with particularity, the case the Crown proposes to prosecute at trial, not limited to the legal nature of the offence charged but also "the particular act, matter or thing" foundational to the charge being that which the Crown undertakes the obligation of proving beyond reasonable doubt and against which a defence is mounted. [21]
3. Where a conspiracy is charged a further statement of principle is added to that general statement of principle. The courts have recognised there is a potential ambiguity inherent in a charge of conspiracy. This is in large part as a result of the fact that the offence of conspiracy is complete when each conspirator agrees that an offence will be committed pursuant to the agreement to which they are each a party, and that they agree that the agreement will be achieved by illegal means. Accordingly, before the trial commences the Crown is under an obligation to "carefully analyse the precise nature of the conspiracy" [22] and to furnish the accused with precise particulars of the overt acts of each of the conspirators upon which the Crown relies upon to establish both the existence of conspiracy charged and the participation of each accused in that conspiracy. [23]
4. In Mok v R (1987) 27 A Crim R 438, Hunt J put the position as follows: An accused person is entitled to have identified with precision the transaction upon which the Crown relies; he is entitled to be apprised not only of the overt acts alleged but also the legal nature of the charge against him and the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller (1937) 59 CLR 467 at 489, 495, 501-502. A charge of conspiracy does not differ in this respect from any other charge. The accused is unable properly to plead to a charge unless he knows what is the precise case which is the basis for the charge preferred against him: Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270 at 280-281. He can hardly plead to a charge of conspiracy unless he knows precisely with whom it is going to be alleged that he conspired and the scope of the conspiracy alleged. It has long been considered a cardinal requirement of the criminal law that an accused should be given proper particulars, and the courts possess an inherent authority to require the Crown to furnish particulars of the charge. The authorities are collected in Johnson v Miller at 497 and in Ex parte Graham; Re Dowling at 280. The denial of the defendant's right to particulars in Moss v Brown [1979] 1 NSWLR 114 at 128-130 is limited to the position of a defendant in committal proceedings, where the magistrate in any event has a discretion whether particulars should be ordered: Ex parte Donald; Re McMurray (1969) 89 WN (Pt 1) (NSW) 462 at 470, 472-473. Because of the special nature of the inquiry which is being conducted in those proceedings, the defendant has no right to such particulars: Ex parte Coffey; Re Evans [1971] 1 NSWLR 434 at 451, 460.) In a conspiracy case, each accused is entitled to precise particulars of the persons with whom it is going to be alleged that he conspired and as to the specific scope of the conspiracy alleged. Even where particulars are not sought, it is nevertheless incumbent upon the Crown Prosecutor to give those particulars in the course of his opening address - at the latest. He is not entitled simply to open the overt acts of which particulars which have been given, leaving it to the end of the evidence to select from that evidence the conspiracy which seems to be the strongest. The trial judge and the accused are left in an impossible position if the precise nature of the Crown case is not made clear from the beginning of the trial. The present case is a very good example of the sorry consequences of the Crown's failure to give proper particulars.
5. There is no complaint by the accused that the 2019 Statement of Particulars is inadequate or incomplete, or that there was any failure on the part of the Crown in the way the Crown opened its case to identify, with precision, the nature of the conspiracy charged and the overt acts allegedly committed by each of the accused in its execution.
6. The complaint made by each of the accused is limited to the Crown revising or amending the particulars of two of the remaining eight acts of wilful misconduct allegedly committed by Mr Macdonald pursuant to the agreement to which it is alleged each of the accused were a party (and a corresponding revision or amendment to the related acts of the accused Edward Obeid and Moses Obeid, in each case their receipt of the confidential information allegedly provided to them in breach of Mr Macdonald's duties of confidentiality and impartiality) following the Crown's review of the evidence adduced in the trial, including the evidence adduced in cross-examination.

The amendment to the fourth act of misconduct

1. In both the 2019 Statement of Particulars and the Crown opening, the Crown alleged (and doubtless considered it had evidence to prove) that copies of "Wiles Map 1" and "Wiles Map 2", allegedly provided by Mr Macdonald to Edward Obeid, Moses Obeid or a member of the Obeid family on or after 5 June 2008, were in "A3 format''. [24]
2. The Crown went further in opening and contended that it would prove that the large copies of "Wiles Map 1" and "Wiles Map 2" that Mr Macdonald asked the Department of Primary Industries to provide to him and that were, on the Crown case, provided via Mr Gibson as Ian Macdonald's Deputy Chief of Staff [25] on 5 June 2008 were the maps in A3 format that were provided to Edward Obeid, Moses Obeid or a member of the Obeid family in furtherance of the conspiracy, and further that those same documents were the maps in specie that were seized pursuant to a search warrant executed over Locaway Pty Ltd (Locaway) premises on 23 November 2011. The two maps, seized pursuant to the warrant and exhibited in the trial as Exhibit X, are in A3 format. [26]
3. The Crown accepts that having regard to Mr Gibson's evidence [27] , the Crown can no longer maintain the categorical case that the A3 copies of "Wiles Map 1" and "Wiles Map 2" that were located during the execution of the search warrant were the "large copies of the maps" supplied by the Department of Primary Industries to the Minister's office on 5 June 2008. It remains the Crown case, however, that copies of the original of "Wiles Map 1" and "Wiles Map 2" located during the execution of the search warrant on 23 November 2011 were copies of the maps Mr Macdonald caused to be provided to Edward Obeid, Moses Obeid or another member of the Obeid family in breach of his duty of confidentiality and that Moses Obeid, Edward Obeid or a member of their family received those maps with that knowledge or understanding.
4. The date upon which the Crown alleged "the maps" were provided was originally particularised in the 2019 Statement of Particulars as on or after 5 June 2008. In the Crown opening it was noted that within a week of the date on which the "large maps were provided" to Mr Macdonald's office, Mr Macdonald is recorded in his electronic diary as attending a scheduled breakfast meeting with Edward Obeid at Sydney Hospital, the inference being, as the Crown contended, that the maps were provided at that meeting.
5. The Crown having accepted that the evidence, principally the evidence of Mr Gibson, now means that it is unable to specify the form in which copies of "Wiles Map 1" and "Wiles Map 2" were provided by Mr Macdonald (or caused to be provided by him) and received by the accused or a member of their family, namely in paper and in A3 format, the Crown then expands the date range within which it is alleged the maps were provided (or, more precisely, the date range where it is alleged that Mr Macdonald caused the maps to be provided) to include the date that "Wiles Map 1" was first sent electronically to Mr Macdonald's office, being 9 May 2008, and the date where, on the Crown case, "Wiles Map 2" was shown to Gardner Brook by Paul Obeid at the second Wentworth Hotel meeting in the presence of Moses Obeid, being 7 or 8 July 2008.
6. The amendment to the date range is in recognition of the fact that the Crown no longer maintains the case that the precise maps supplied to the Minister's office by the Department of Primary Industries in "large copy" format on 5 June 2008, were necessarily the precise maps in specie which were provided to Edward Obeid, Moses Obeid or a member of the Obeid family in breach of his duty of confidentiality, or that those precise maps were received by one or more of those individuals, or that those precise maps were necessarily those that were seized at the Locaway premises in November 2011. The Crown accepts that it has no evidence to establish how the copies of "Wiles Map 1" and "Wiles Map 2" were provided by Mr Macdonald and received by Edward Obeid, Moses Obeid, or another of their family members, either in hard copy or electronically. The Crown maintains, however, that it will prove as a matter of inference from all of the evidence that copies of both maps were in fact provided by Mr Macdonald, or that he caused that to happen, there being no other rational explanation for "Wiles Map 2" being available to Paul Obeid to produce to Gardner Brook in July 2008 and no rational explanation for copies of "Wiles Map 1" and "Wiles Map 2" being located during the execution of the search warrant at the Locaway premises in November 2011.
7. The accused submitted that having failed to prove what Mr Neil described as a "particular case theory" [28] of the Crown case, namely that the alleged fourth act of misconduct was committed on or after a particular date as an overt act in furtherance of the conspiracy, or what Ms Francis describes as the Crown's failure to prove a particular feature of the fourth act of misconduct, namely the "conspicuous quality" [29] of the maps allegedly provided by Mr Macdonald on or after 5 June 2008, namely maps in A3 format, the Crown should not be permitted to advance a different case theory (Mr Neil's submission) or to seek to prove a different act including by the provision of different information or to express in a different way a fact essential to proof of the fourth act of misconduct (Ms Francis' submission) by abandoning any reference to the formatted size of the maps or changing the date on or after which they were allegedly provided.
8. Mr Martin submitted that by service of the Revised Statement of Particulars the Crown is attempting to rely upon a different set of essential and intermediate facts in a different and alternative circumstantial case to that presented in the Crown's opening which, insofar as it concerns the differently particularised fourth act of misconduct, was in direct response to his cross-examination of Mr Gibson and Mr Mullard which was directed to establishing that the larger sized maps requested by Mr Macdonald and delivered to his office on 5 June 2008 were larger than A3 format and, accordingly, could not be, as the Crown contended in opening, the precise maps which were located in the execution of the Locaway search warrant. [30]
9. Mr Martin submitted that amending the particulars of the fourth act of misconduct effectively permits the Crown to gain an unfair tactical advantage over the accused at this stage in the trial, an advantage the Crown seeks to maximise by leading no evidence in its case to support the implied suggestion in the Revised Statement of Particulars that the maps were provided, or caused to be provided, by electronic transmission either from within Minister's office or by Mr Macdonald causing the maps to be rendered into an electronic format and removed from his office by a portable electronic device and provided to and received by the accused in that form.

The amendment to the eighth act of misconduct

1. Insofar as concerns the submissions of each of the accused concerning the amendment to the eighth act of misconduct in the Revised Statement of Particulars, the same generalised complaint was made and developed in written submissions by Mr Neil [31] which were largely adopted by Ms Francis and Mr Martin in their written submissions.
2. That complaint is that having failed to establish in the evidence adduced from both Dr Sheldrake and Mr Mullard that a memorandum entitled "Coal allocation" dated 5 August 2008 (said to have been drafted by Mr Coutts) was in fact discussed with Mr Macdonald at a meeting on 14 August 2008 (the case opened by the Crown, accompanied by the Crown's emphasis on the fact that there was an electronic diary entry of a meeting between Mr Macdonald and Edward Obeid that day [32] ), and having failed to adduce evidence that "the memorandum", or any part of it, was provided to Mr Macdonald on any other occasion, the Crown must be taken to have abandoned altogether any reference to the "memorandum" as the source of the documents the Crown maintains Mr Macdonald caused Edward Obeid, Moses Obeid or another member of the Obeid family to be provided with in breach of his duties of confidentiality and impartiality, those being documents identified as "MEDIUM COAL ALLOCATION AREAS" and map titled "Proposed Coal Release Areas for EOIs" (Schiavo Map 3).
3. That approach is said by the accused to advance a "new case theory" [33] encompassing not only an alleged act of misconduct that occurred on a date earlier than the date of the "memorandum", namely 23 July 2008, but, more importantly, a "new case theory" [34] in that the documents that Mr Macdonald is alleged to have caused to have been provided in breach of his duties of confidentiality and impartiality, occurred on different and unparticularised occasions "on or after 23 July 2008".
4. As they relate to the eighth act of misconduct, the footnoted particulars contained within the Crown's Revised Statement of Particulars do allege, insofar as the allegation that Mr Macdonald caused Edward Obeid, Moses Obeid or another member of the Obeid family to be provided with Schiavo Map 3, that the particular version of that map35 was included in a ministerial briefing dated 23 July 2008 although the same map (insofar as it identified the proposed coal release areas) was also attached to the "memorandum" albeit with different compass symbols.

Consideration of the authorities

1. The authorities to which the accused have referred, principally King v The Queen (1986) 161 CLR 423; [1986] HCA 59 and Anderson v R (1991) 53 A Crim R 421, are important although, notably, each case was decided after verdict in a jury trial.
2. The Crown case at trial in the case of King was that the accused had procured a person called Matthews to kill his wife and that Matthews had done so. At the close of the Crown case, and after the addresses of counsel, the Crown, over objection, invited the trial judge to direct the jury that it could convict the accused if they were satisfied that the accused had procured his wife to be killed, whether by the person Matthews or by somebody else.
3. The High Court held that the trial judge should have refused the request by the Crown to put a different case to the jury and that the verdict could not be sustained for that reason.
4. Dawson J (Gibbs CJ, Wilson and Brennan JJ agreeing) held that there was no dispute that the request by the Crown to change the Crown case as left to the jury by the trial judge "involved such a change in the course of the trial at a late stage that inevitably the conviction could not be allowed to stand" (at 432). His Honour stated further (at 436-437): The aim in framing an indictment should, in fairness, be that everyone, particularly the accused, knows the nature of the charge brought against him. In most cases where an accessory is indicted together with the principal this can best be achieved by charging the accessory in a manner which specifies his participation in the offence. Even where an accessory is indicted alone such a form of pleading is ordinarily preferable: see Giorgianni v. The Queen; Reg. v. Maxwell. No doubt there will be cases in which the degree of participation of the offenders is not known so that it is appropriate to charge them all as principals (see Reg. v. Sperotto), but it is not a practice to be followed where it can be avoided. In this case it should have been possible for the Crown to have specified how it was that King was charged with the offence alleged against him. (Footnotes omitted.) Deane J (Mason and Murphy JJ agreeing) held (at 428): The charge upon which the applicant stood indicted and on which he was tried was an unqualified charge of murder. Under that charge, it was open to the Crown to prove guilt in a variety of capacities. In fact, by its conduct of the trial, the Crown made it clear that it sought to prove that the applicant was guilty of murder only on the basis that he was an accessory before the fact to the killing of his (the applicant's) wife by his co-accused, Matthews. It was on that basis that both the prosecution and defence cases at the trial were presented and conducted during the course of evidence. It was on that basis that both the Crown Prosecutor and the counsel who appeared for the applicant at the trial addressed the jury. It was on that basis that the learned trial judge approached his summing up.
5. In Anderson, the appellant was convicted of murder as an accessory before the fact for the 1978 Hilton bombing. The Crown advanced a case based on the evidence of a witness, Mr Pederick, that he had placed a bomb in a certain garbage bin at the instigation of the appellant for the purpose of assassinating the Indian Prime Minister, Mr Desai. The Crown case was that this had taken place at the George Street entrance to the Hilton Hotel and that Mr Pederick had in fact mistakenly intended to assassinate the president of Sri Lanka, Mr Jayawardene (instead of Mr Desai). The Crown opened and led evidence from Mr Pederick based on that case ("the Jayawardene theory").
6. In the course of the trial, it became apparent that the Jayawardene theory could not be correct as Mr Jayawardene had arrived at a different time on the relevant day and could not have been seen by Mr Pederick. The Crown then commenced to lead evidence, without objection, concerning another event at the George Street entrance to the Hotel later on the same day and then, in closing, put to the jury that Mr Pederick had seen Mr Desai but that it was not as he arrived at the George Street entrance but as he left the George Street entrance later the same day.
7. The Court of Criminal Appeal found that the trial judge erred in refusing an application from defence counsel for a direction that the jury disregard what was said to be a new Crown case being advanced. Although the Court found that there was insufficient evidence, in any event, to support the revised Crown theory (at 437-438), Gleeson CJ (with Slattery and Findlay JJ agreeing) found that the change of case and the trial judge permitting the revised Crown theory to be left to the jury was productive of unfairness to the accused. Gleeson CJ noted that the Crown did not lead any evidence from Mr Pederick in support of the revised Crown theory and, in those circumstances, it was unfair to allow the Crown to promote the new Crown case theory without the Crown being required to recall Mr Pederick and reopen his evidence in chief.

Application of the authorities

1. Unlike the situation obtained in King and Anderson, where the Crown proposed and was permitted to advance in a jury trial a fundamental revision of the way in which the Crown submitted a murder was committed, in each case to accommodate what had, by the close of the evidence, been revealed as weaknesses in the way the Crown originally put its case and which, in each case, was held to be productive of serious unfairness to the accused, in the present case, the amendment to the fourth and eighth alleged acts of misconduct in the Revised Statement of Particulars has been notified by the Crown while the Crown is still in its case. Significantly, although the accused have invited the Court to rule on whether the Crown can rely upon the Revised Statement of Particulars and to make that ruling before the Crown closes its case, no application was made for any of the Crown witnesses to be recalled, no application was made for the trial to be adjourned to allow the accused to consider their position or, as Ms Francis puts it, to "harness such evidence" as may be available to contribute to raising a doubt as to proof of the fourth act of misconduct. [35] Furthermore, there is no application by any of the accused for the trial to be aborted.
2. The remedy that each of the accused seeks is that the Crown not be permitted to amend the fourth and eighth acts of misconduct as particularised in the Revised Statement of Particulars and, as a corollary, that the Crown should be required to close its case in strict accordance with the 2019 Statement of Particulars, and in strict accordance with its opening, as to do otherwise would be productive of unfairness to the accused, each of whom has met the case as opened by the Crown.
3. It is also significant that I am sitting in the trial without a jury. The relevance of the revision to the 2019 Statement of Particulars, as signified in the Revised Statement of Particulars, to the ultimate question whether either or both of the fourth or eighth acts of misconduct are established on the evidence, will no doubt attract ultimate submissions from defence counsel that I should view the Crown case as weakened by the need to accommodate the effect of the cross-examination of a number of witnesses and the need to rely upon inferences because direct evidence is shown to be wanting. They are live questions to be addressed either at the conclusion of the evidence in the Crown case or in closing submissions.

Consideration

1. I am not of the view that the service of the Revised Statement of Particulars results in any fundamental shift in the Crown contention that the conduct of each of the accused (Mr Macdonald in providing copies of "Wiles Map 1" and "Wiles Map 2" and Moses Obeid and Edward Obeid receiving the copies) were acts in furtherance of the conspiracy charged, a conspiracy which had as its subject an agreement that Mr Macdonald would wilfully misconduct himself in public office as alleged in the indictment, namely in connection with the granting of an exploration licence at Mount Penny and concerning the interests (primarily the financial interests) of Edward Obeid and/or Moses Obeid and/or their family and/or associates.
2. In the particular circumstances of this case, I am not satisfied that the Crown's revised particulars as they relate to the fourth act of misconduct should be interpreted as a "new case theory" [36] or that the provision of the same information in the eighth act of misconduct but without an allegation as to the source of that information constitutes a materially different act of misconduct. [37] Neither am I satisfied that the change in the particulars of the fourth and eighth acts of misconduct is an attempt by the Crown to rely upon a different set of essential intermediate facts in a different and changed circumstantial case [38] , or that they are productive of uncertainty as to the transactions or occurrences upon which the Crown relies to support proof that either or both acts of misconduct occurred or, further still, that the Revised Statement of Particulars alters the object or scope of the conspiracy. Under the Revised Statement of Particulars the conspiracy alleged remains tethered to an allegation that each of the three accused agreed that Mr Macdonald would knowingly commit multiple acts of wilful misconduct in the office of the Minister in connection with the granting of an exploration licence at Mount Penny in the State of New South Wales and concerning the interests of Edward Moses Obeid and/or Moses Edward Obeid and/or their family members and/or associates.
3. I am satisfied that the Revised Statement of Particulars does not alter the fundamental allegation that "Wiles Map 1" and "Wiles Map 2" were confidential, both maps having, on the Crown case, the status of confidential information within the timeframe that the Crown now alleges that copies were provided to Edward Obeid, Moses Obeid or a member of the Obeid family and received by them.
4. I am not of the view that the Revised Statement of Particulars as it relates to the fourth act of misconduct results in any shift in the Crown case theory such that I should prevent the Crown from closing its case on a revised basis. Neither am I satisfied that that the change in the source of the information the subject of the eighth act of misconduct, information which also had the status of confidential information within the timeframe that the Crown now alleges that information was provided to Edward Obeid, Moses Obeid or another member of the Obeid family and received by them, fundamentally alters the Crown case or the crown case theory, such that I should prevent the Crown from closing its case on the basis of the Revised Statement of Particulars.

Endnotes

1. MFI 134.
2. MFI 134/1.
3. R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 6) (Supreme Court (NSW), Fullerton J, 19 July 2019, unrep), R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 7) [2019] NSWSC 1916 and R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 8) [2019] NSWSC 1915.
4. R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 9) [2019] NSWSC 1785.
5. The conspiracy alleged is itself a common law offence.
6. The identities of these people are nominated in the 2019 Statement of Particulars at [15] and [16].
7. See Particulars 8(i), (j) and (k) against Edward Obeid and Particulars 11(i), (j) and (k) against Moses Obeid of the 2019 Statement of Particulars.
8. Maitland v R; Macdonald v R [2019] NSWCCA 32.
9. Particular 3(d) against Ian Macdonald of the 2019 Statement of Particulars.
10. Particular 8(c) against Edward Obeid and particular 11(b) against Moses Obeid of the 2019 Statement of Particulars.
11. Particular 3(f) against Ian Macdonald of the 2019 Statement of Particulars.
12. Particular 8(d) against Edward Obeid and particular 11(e) against Moses Obeid of the 2019 Statement of Particulars.
13. Particular 3(g) against Ian Macdonald of the 2019 Statement of Particulars.
14. Particular 8(e) against Edward Obeid and particular 11(f) against Moses Obeid of the 2019 Statement of Particulars.
15. Particular 3(h) against Ian Macdonald of the 2019 Statement of Particulars.
16. Particular 8(f) against Edward Obeid and particular 11(g) against Moses Obeid of the 2019 Statement of Particulars.
17. Particular 3(i) against Ian Macdonald of the 2019 Statement of Particulars.
18. Particular 8(g) against Edward Obeid and particular 11(h) against Moses Obeid of the 2019 Statement of Particulars.
19. The third alleged act of misconduct is deleted altogether. None of the accused oppose that amendment. Each of the accused have notified the Crown and the Court that they will rely upon the Crown having withdrawn an act of misconduct upon which the Crown case was opened as a reason why the Crown case must ultimately fail.
20. Although the Crown no longer seeks to prove the third act of misconduct, relying instead on the remaining eight acts of ministerial misconduct as the acts comprising the wilful misconduct alleged in the indictment and the overt acts committed by Mr Macdonald in furtherance of the conspiracy, the Revised Statement of Particulars does not renumber the acts of misconduct.
21. Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77.
22. Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8 (per Deane J at 333)
23. The King v Weaver (1931) 45 CLR 321; [1931] HCA 23 (at 333 per Gavan Duffy CJ, Starke and McTiernan JJ and at 351 per Evatt J); R v Mok (1987) 27 A Crim R 438 (at 441-442 per Hunt J).
24. Crown opening.
25. Ex A p 885 - Email from Mr Gibson to Mr Mullard on 5 June 2008 confirming receipt of the larger maps.
26. See R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 13) [2020] NSWSC 1947
27. See Mr Gibson's evidence at T 2474 and Ms Callan's submission at T 2786.
28. MFI 135 [15].
29. MFI 152.
30. Exhibited in the trial as part of Exhibit X after argument as to their admissibility as exhibits.
31. MFI 135 [22]-[24].
32. Crown opening T 44.
33. MFI 135 [15].
34. MFI 135 [15].
35. MFI 152.
36. MFI 135 [15].
37. MFI 152 [10].
38. MFI 153 [10]. 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