R v Obeid [2015] NSWSC 1380 | Case summary

Supreme Court of NSW|2015-09-10|Before: Beech-Jones J, Commission J

The Crown Case

The indictment charges Mr Obeid as follows: "Between 1 August 2007 and 30 November 2007 in Sydney in the State of New South Wales, then holding public office as a Member of the Legislative Council of New South Wales, [he] did in the course of and connected to his public office wilfully misconduct himself by making representations to Stephen Paul Dunn, the Deputy Chief Executive Officer and General Manager, Maritime Property Division of the Maritime Authority of New South Wales, with the intention of securing an outcome from the said Maritime Authority favourable to Circular Quay Restaurants Pty Ltd in respect of its tenancies of properties at Circular Quay knowing at the time he made the representations that he had a commercial and/or beneficial and/or family and/or personal interest in the said tenancies which he did not disclose to Stephen Paul Dunn."
The ACCS recounts Mr Obeid's tenure as an MLC that included the period from 2002 to 2008. It notes that from late 2002 Circular Quay Restaurants Pty Ltd ("CQR") acquired leases over two shops at Circular Quay. It alleges that Mr Obeid was one of seven beneficiaries under a discretionary trust that ultimately was the beneficial owner of the entity that owned the lease and conducted the business on the lease premises. The other six beneficiaries were members of his family.
The ACCS alleges that the leases were due to expire on 31 August 2005 and that the public body responsible for entering into new leases, Maritime Authority of New South Wales ("Maritime"), was proposing to advertise for expressions of interest "with a view to granting [new leases] pursuant to an open, competitive process". It is also alleged that from early 2005 to September 2007 CQR was in dispute with Maritime about the application of a 10% increase in the rent payable during the holding over period.
The ACCS alleges that the lessees including CQR engaged Mr Paul Scanlan to negotiate with Maritime to, inter alia, change its approach and engage in direction negotiations with leaseholders about the terms of a renewal rather than seeking expressions of interest.
The ACCS recounts that Mr Stephen Dunn was known to Mr Obeid from about 1999 and that Mr Dunn was appointed Deputy Chief Executive Officer of Maritime on 15 August 2007 and General Manager Maritime Property Divisions on 21 August 2007. The critical allegation in the ACCS is as follows: "Shortly after Stephen Dunn's appointment to Maritime, he had a conversation with Edward Moses Obeid during which his appointment to Maritime was discussed and Edward Moses Obeid represented to him in substance that there was a group of lessees of Maritime at Circular Quay who were being mistreated by Maritime which group had engaged a barrister and commercial mediator named Mr Scanlan to represent them. Edward Moses Obeid asked Stephen Dunn to meet with Mr Scanlan concerning the group of Circular Quay tenants. Stephen Dunn agreed to do so. It was implicit that Edward Moses Obeid was requesting Stephen Dunn to meet with Mr Scanlan in the interests of the group of Circular Quay tenants for the purpose of providing a vehicle for Mr Scanlan to put representations on their behalf directly to Stephen Dunn. Edward Moses Obeid concealed from Stephen Dunn the fact that he had direct and/or indirect interests in two of the Circular Quay tenancies being shops W4.1 and W5.1 on Wharves 4 and 5 at Circular Quay. By such concealment Edward Moses Obeid implicitly held out to Stephen Dunn that his request for Stephen Dunn to meet with Mr Scanlan in the interests of the group of Circular Quay tenants was made by him solely in his capacity as a member of the Legislative Council of New South Wales in the course of and connected to his public office. Stephen Dunn's agreement to meet with Mr Scanlan was on the basis that Edward Moses Obeid's request that he do so was made by him in such capacity. In fact Edward Moses Obeid's request to Stephen Dunn was made by him wholly or partly in his private interests." (emphasis added)
The balance of the ACCS alleges that Mr Dunn contacted Mr Scanlan and met with him on 28 August 2007. Mr Scanlan is said to have requested a review of the proposed 10% increase and review of Maritime's approach to renewals by offering existing tenants a right of last refusal and to only adopt a competitive tender process if direct negotiations with existing tenants proved unsuccessful. The ACCS alleges that Mr Dunn reported to Mr Obeid on the meeting he had with Mr Scanlan and later spoke to him about Maritime's position on the contentious issues between the lessees and Maritime. The ACCS states that on 4 September 2007 Mr Dunn advised Mr Scanlan that an increase in rent during the holding over period would not be sought. It further states that during September and October 2007 Mr Dunn procured an alteration to Maritime's policy (or proposed policy) towards renewals, namely that they would "be offered via direct negotiation [with existing tenants] in the first instance".
The ACCS alleges that Mr Obeid's conduct in "representing" (or communicating) to Mr Dunn meant that he had: "… wilfully misconducted himself as a member of the Legislative Council of New South Wales and misused such public office with the intention of causing or promoting or encouraging an alteration of the draft Maritime Commercial Lease [Policy] subsisting at the time of the events in a way that would advantage the group of Circular Quay tenants for whom Mr Scanlan acted and in particular in a way favourable to CQR being a company in which Edward Moses Obeid had direct or indirect interests as heretofore particularised."
Thus the essence of the Crown case is that, while holding the "office" of an MLC, Mr Obeid communicated to a senior employee of the Executive, Mr Dunn, to persuade him to ultimately take steps that would or could be financially beneficial to Mr Obeid or those close to him without disclosing to Mr Dunn his or his family's financial interest or connection. It is alleged that he did so "with the intention" of securing that benefit. As I will explain it is that actuating motive that is of particular significance to the charge.
Before addressing the various points raised on behalf of Mr Obeid it is appropriate to note the most recent applicable statement of the elements of the offence of wilful misconduct in public office enunciated in R v Quach [2010] VSCA 106; 201 A Crim R 522 at [46] per Redlich JA (Ashley JA and Hansen AJA agreeing) ("Quach") namely: "So amended, the elements of the offence are: (1) a public official; (2) in the course of or connected to his public office; (3) wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is 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."
As I will explain the correctness of Redlich JA's formulation of the second element is disputed by Mr Obeid. I address that dispute below. For the present it suffices to note that the basis upon which the first element is said to be satisfied is Mr Obeid's status as an MLC during the relevant period. The act or omission of Mr Obeid which is said to satisfy the third element is his conduct as pleaded in the indictment and explained above including the actuating motive identified in [21]. The scope and nature of the duty that he is said to have wilfully neglected and failed to perform is very much in dispute.

Is an MLC a public officer for the purposes of the crime of wilful misconduct in public office?

The Crown contends that an MLC is a holder of a "public office" for the purposes of the common law offence of wilful misconduct in public office. Mr Reynolds SC contended that the concept of "public office" for the purposes of the offence is effectively restricted to persons who are appointed by the Executive and does not extend to a parliamentarian who acquires their position after being elected by eligible voters. He submitted that Parliamentarians do not hold any "office" and are not the holders of a "public office" for the purposes of the offence the subject of these proceedings.
To address these competing contentions it is necessary to briefly describe the provisions of the Constitution Act 1902 relevant to MLCs, and refer to the discussions in various Australian cases relevant to whether a parliamentarian is a public officer. Out of deference to the parties' submissions I will also note some of the discussion in the United Kingdom relevant to this topic. In addressing this material I note at the outset that Mr Reynolds SC's submission had a number of underlying themes some of which are also relevant to the question of jurisdiction.
First, he submitted that there is no authority binding on this Court that requires it to hold that an MLC is a "public officer". Second he contended the discussion in various Australian cases suggesting that a member of parliament is a public officer took place in a different context to the present in that they concerned a different crime, usually bribery or a civil claim; that did not depend on finding that a parliamentarian was a public officer. Third, he contended that the underlying rationale for the offence is to ensure senior members of the executive are held responsible for malfeasance and this does not extend to parliamentarians who are responsible to Parliament. Fourth, Mr Reynolds SC submitted that, given that the nature of the inquiry requires a series of normative judgments concerning the standards of behaviour of parliamentarians, the formation of judgments on those matters is a matter more appropriate for Parliament as opposed to the Courts. The Constitution Act 1902
The role of the Legislative Council under the Constitution Act 1902 (the "Constitution Act") was discussed in Egan v Willis [1998] HCA 71; 195 CLR 424 at [8] to [12] per Gaudron, Gummow and Hayne JJ ("Egan"). In particular s 5 of the Constitution Act 1902 (the "Constitution Act") confers upon the "Legislature" legislative power to make laws for the peace, welfare and good government of New South Wales. Section 3 defines the Legislature as consisting of "His Majesty the King with the advice and consent of the Legislative Council and Legislative Assembly" (emphasis added).
Part 3 of the Constitution Act deals with the Legislative Council and Legislative Assembly. Its provisions repeatedly refer to persons having the status of being a "member" of either body. Section 22I contemplates such members voting on questions arising in the Legislative Council. Section 12 precludes any such member from being "permitted to sit or vote therein" until they had taken the oath of allegiance. Section 13 and 13A deal with matters that might warrant disqualification of such members including the holding of pecuniary interests in contracts or agreements "for or on account of the Public Service of New South Wales". I was not referred to the provisions concerning the remuneration of members but obviously they are paid from public funds.
Two matters should be noted about these provisions. First on its face the Constitution Act appears to be a sufficient basis in itself for holding that an MLC occupies some form of "office". An MLC is a position expressly provided for by that statute and it contemplates and provides for the performance and discharge of various functions being those associated with the role of the Legislative Council in giving the advice and consent contemplated by s 5 of the State Constitution. The Supreme Court of India arrived at that conclusion in relation to Indian parliamentarians in Rao & Others v State of India [1999] 3 LRC 297 at [67].
Mr Reynolds SC pointed to two other provisions of the Constitution Act as relevant to the issue of whether an MLC is an office holder much less a "public officer". The first is s 13B(1)(a) which precludes a person "holding an office of profit under the Crown" from being capable of sitting and voting as a member of either house. The second is s 47 which vests the function of appointing "all public offices under the Government" in the Governor acting on the advice of the Executive Council. Mr Reynolds SC submitted that it follows that the State Constitution does not contemplate that an MLC holds a "public office". He further submitted that the common law must conform with the Constitution Act as it does with the Commonwealth Constitution (see Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520) and thus it follows that a State parliamentarian is not a public officer for the purposes of the common law offence of wilful misconduct in public office. I do not accept that that is the effect of these provisions. They only indicate that an MLC does not hold an office "under the Crown" or "under the Government". Instead they hold their position by virtue of their election by the people and legally are not answerable to, or under the direction of, the "Crown" or the "Government" (Sneddon v State of New South Wales [2012] NSWCA 351 at [69] per Basten JA and at [224] per Meagher JA; "Sneddon"; see [40]).
In this context as well as a constitutional context there is no warrant for restricting the concept of "officers" or "office" to those holding office "under the Crown". Section 44(iv) of the Commonwealth Constitution contains a similar disqualification for senators and members of the House of Representatives to s 13 of the Constitution Act; ie they are precluded from being chosen as such if they hold "any office of profit under the Crown". In contrast s 116 of the Commonwealth Constitution precludes the imposition of any "religious test … as a qualification for any office or public trust under the Commonwealth" (emphasis added). In Crittenden v Anderson an unpublished judgment of Fullagar J delivered on 23 August 1950 (reported at (1977) 51 ALJ 171), his Honour relied on s 116 to reject a challenge to the eligibility of a Catholic elected to the House of Representatives on the basis that as such he was "under [an] acknowledgement of allegiance, obedience and/or adherence to a foreign power" for the purposes of s 44(i) of the Constitution, namely the Vatican. In so finding Fullagar J implicitly accepted that a member of the House of Representatives held an "office or public trust under the Commonwealth".
Second the Constitution Act contemplates that one duty or function of that office is the performance of parliamentary duties so as to enable the Legislative Council to fulfil its role as one of three constituent elements of the "Legislature". As explained below this does not exhaust the duties or functions that attach to that role. Parliamentarians as Public Officers - Australian authorities
The question of whether a parliamentarian is a public officer for the purposes of the crime of wilful misconduct in public office has not directly arisen in any previous case to which the Court was referred. However it has arisen in relation to similar offences such as bribery and public mischief. The discussion in those cases relevant to this topic has been clouded by disagreement as to whether, to establish the offence of bribery, it is necessary to also demonstrate that the recipient of the bribe is a "public officer".
The first relevant authority is R v White (1875) 13 Sup Ct Rep (NSW) (L) 322 in which the Full Court found that an attempt to bribe a Member of the Legislative Assembly ("MLA") was a misdemeanour at common law. The principal judgment was given by Sir James Martin CJ but it did not address the present question. In a concurring judgment Hargrave J held that the prohibition on bribery extended to "all persons whatsoever holding offices of public trust and confidence" and that extends to MLAs and MLCs "who are entrusted with the public duty of enacting our laws" (at 334). Faucett J held that "any person who holds a public office or public employment of trust" is guilty of an offence if they accept a bribe and that "it cannot be doubted that a member of Parliament holds a public office" (at 337 to 338).
The next relevant authority is Boston in which the High Court overturned the upholding of a demurrer to an offence that charged three persons with unlawfully conspiring to corruptly give money to "a public officer", namely an MLA, to place "pressure" on a Minister to enter into certain land acquisition agreements. Boston contains a number of significant statements concerning the scope and nature of the duties owed by a parliamentarian to which I will return.
In relation to the question of whether an MLA was a "public officer", in Boston Isaacs and Rich JJ stated (at 402): "A member of Parliament is, therefore, in the highest sense, a servant of the State; his duties are those appertaining to the position he fills, a position of no transient or temporary existence, a position forming a recognized place in the constitutional machinery of government. Why, then, does he not hold an 'office'? In R. v. White … it was held, as a matter of course, that he does. That decision is sound. 'Office' is defined in the Oxford Dictionary, as including: - '4. A position or place to which certain duties are attached, esp. one of a more or less public character; a position of trust, authority, or service under constituted authority.' And 'Officer' is defined (inter alia) as '2. One who holds an office, post, or place. (a) One who holds a public, civil, or ecclesiastical office; ... a person authoritatively appointed or elected to exercise some function pertaining to public life.' Clearly a member of Parliament is a 'public officer' in a very real sense, for he has, in the words of Williams J. in Faulkner v. Upper Boddington Overseers …, 'duties to perform which would constitute in law an office'." (emphasis added)
Gavan-Duffy and Starke JJ took the contrary view in Boston stating (at 413): "In our opinion, a member of the Legislative Assembly of New South Wales is not the holder of a public office within the meaning of the common law, and, even if he could be regarded as the holder of such an office, the acts charged as intended to be done by the defendant Boston, however improper they may be, would not be malversation in his office, or acts done in his office, unless they were done in the discharge of his legislative functions."
Knox CJ did not specifically address the topic whether a member of parliament was a public officer. Instead his Honour appeared to take the view that it was sufficient that the payment of money to a member of Parliament intended to induce him to use his "official position" was sufficient to establish the charge (at 392). Higgins J adopted a similar position stating as follows (at 412): "This count alleges that the defendant Boston is a 'public officer to wit a member of the Legislative Assembly'; and some discussion has taken place on the question is he a public officer. He certainly is not a public officer within the Public Service Acts; nor is he to obey the commands of the King or of the departmental heads. In R. v. White … Faucett J. says confidently that a member of Parliament holds a public office; and in Henly v. Mayor of Lyme … Best C.J. says that 'everyone who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise, is constituted a public officer'. But without deciding that the allowance paid to a member of Parliament for his expenses is to be treated as compensation for his public duty, it seems to me immaterial whether the member is to be treated as a public officer or not. He is a member of Parliament, holding a fiduciary relation towards the public, and that is enough." (emphasis added)
The effect of Boston on the present question was to yield a 2-2 split on the question of whether a member of parliament is a public officer. Nevertheless the view of Isaacs and Rich JJ has often been taken as representing the correct position. Thus in his article "Public Officers: Some Personal Liabilities" (1977) 51 ALJ 313 at 314 P D Finn (later Finn J) referred to the accepted definition of public officer in R v Whitaker [1914] 3 KB 1283 at 1296 namely that it is any "… officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public", and then cited Isaacs and Rich JJ in Boston as authority for the proposition that members of parliament are public officers.
Similarly in Sneddon an issue arose as to whether a Member of the Legislative Assembly ("MLA") was a "person in the service of the Crown" for the purposes of s 8(1) of the Law Reform (Vicarious Liability) Act 1983 so as to make the State liable for his tortious acts towards a member of his staff. Basten JA found that he was (at [60]). Meagher JA concluded that he was not (at [223]). Macfarlan JA found that an MLA is a person in the service of the Crown but only insofar as he supervised and controlled a member of his staff (at [170]). Insofar as he discharged his legislative and parliamentary duties Macfarlan JA agreed with Meagher JA that he was not acting in the service of the Crown (at [173]).
What is significant for present purposes about Sneddon is that each of Basten JA and Meagher JA expressly referred to the above passage from the judgment of Isaacs and Rich JJ in Boston that found that parliamentarians were public officers (at [64] and [221] to [222] respectively). In particular Meagher JA concluded as follows (at [224]): "A member of the Legislative Assembly is not appointed to a position or office by or at the direction of the State acting either by the executive or by legislation. The member is elected by the people and ultimately is accountable to the people who the member represents. The office to which the member is elected is that of member of the Legislative Assembly. That is properly described as a 'public office'. The member's duties are 'inseparably attached' to that office. The member cannot be removed from that office by the State acting by the executive. Nor is the member accountable to the State acting by the executive in the discharge of any legislative or parliamentary function. Nor can he or she be controlled, directed or interfered with by the State in the discharge of those functions. Indeed the principle of responsible government requires that the member be and remain, as far as possible, independent of improper influence of the executive government so as to be able to watch and call it to account if necessary. That this should be so was described by Isaacs and Rich JJ [in Boston] as being 'the keystone of our political system'." (emphasis added)
Mr Reynolds SC submitted that this passage and the reference to "public officer" was not part of the ratio of Sneddon which addressed a very different issue to the one in this case. I agree that the above passage is not part of the ratio but I do not agree that it can be so easily sidestepped. The effect of all three judgments in Sneddon was to adopt the reasoning of Isaacs and Rich JJ in Boston. Meagher JA's judgment emphasised the independent source of power attaching to an MLA's position as a reason why the State government did not bear legal responsibility for their conduct. The implication is that the member individually bears such responsibility whether criminal or civil.
There is so far as I am aware no statement to the effect that a judge at first instance is bound by the "seriously considered dicta" of the Court of Appeal in the same way that all lower courts are bound by such dicta of the High Court (Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [134] and [158]). Nevertheless, at the very least, compelling reasons for departing from the above statements would need to be demonstrated before I could conclude that an MLA or MLC is not a "public officer". Before addressing whether there are such reasons I will mention some of the discussion in the United Kingdom relevant to this topic. Parliamentarians as Public Officers - United Kingdom
I have already referred to the meaning of public officer as stated in in R v Whitaker [1914] 3 KB 1283 at 1296. Whitaker concerned a Colonel in command of a regiment but that description is clearly applicable to members of parliament.
In his written submissions filed 4 September 2015 (at [40]) Mr Reynolds SC referred to R v Bembridge (1783) 99 ER 679 which concerned the alleged misbehaviour in office of a "receiver and paymaster-general of the forces". Mr Reynolds cited the following passage from Bembridge as set out in the judgment in Quach at [12]: "If a man accepts an office of trust and confidence, concerning the public, especially when it is attended with profit, he is answerable to the King for his execution of that office; and he can only answer to the King in a criminal prosecution, for the King cannot otherwise punish his misbehaviour, in acting contrary to the duty of his office …"
Mr Reynolds SC emphasised the references to the public officer being answerable to the "King" and noted, consistent with the discussion of Meagher JA in Sneddon set out in [41], that an MLC is not so accountable.
One difficulty with this submission may be the accuracy of the law reporting in the era in which Bembridge was decided. The version of Bembridge published in the English reports does not contain the above quote. Instead the equivalent statement is expressed as follows (99 ER 679 at 681): "… a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in office; this is true, by whomever and in whatever way the officer is appointed …"
This passage makes clear what appears to be implicit in the quote set out in [45], namely that the reference to the officer being answerable to the "King" is via a prosecution in the King's courts in the name of the King. The description of the officer as one who holds an "office of trust" and "by whomever in whatever way the officer is appointed" is apt to describe an MLC.
In relation to the analogous tort of misfeasance in public office Best CJ in Henley v Mayor of Lynne (1828) 5 Bing 91 at 107-108 described a public officer as "every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer". This passage was cited with approval by Brennan J in Northern Territory v Mengel (1995) 185 CLR 307 at 308 (and referred to by Higgins J in the above passage from Boston).
These formulations support the characterisation of a parliamentarian as a public officer. The one matter of possible exception is the reference in Henley and Bembridge to the relevant officer being "appointed". Mr Reynolds SC emphasised that description as apt to apply to members of the executive but not apt to apply to parliamentarians who are elected not appointed. However there is nothing in any of those judgments, or any other judgment that the Court was referred to, to support the existence of a dichotomy between persons being "appointed" and "elected" to a public position. Instead the references to "appointed" are simply used as a means of referring to the process by which the officer assumes their position as such. Thus in Shum Kwok Sher v HKSAR [2002] 5 HKCFAR 381 ("Shum Kwok Sher") at [66] Sir Anthony Mason stated: "The offence of misconduct in public office has a long history, going back at least to 1704. In that year in the case of Anonymous (1704) 6 Mod 96 (Case 136), the Court said: 'If a man be made an officer by Act of Parliament, and misbehave himself in his office, he is indictable for it at common law, and any public officer is indictable for misbehaviour in his office'." (emphasis added)
Mr Reynolds SC also drew the Court's attention to following passage from the report of Royal Commission on Standards of Conduct in Public Life 1974 - 1976, chaired by Lord Salmon, which included the following passage (at [307]): "It is in the light of the foregoing paragraphs that we note the fact that neither the statutory nor the common law applies to the bribery or attempted bribery of a Member of Parliament in respect of his Parliamentary activities. It is clear to us that a Member of Parliament cannot, in that capacity, be deemed an 'agent' for the purposes of the Prevention of Corruption Act 1906. It is equally clear that Parliament could not be deemed to be a 'public body' for the purposes of the Public Bodies Corrupt Practices Act 1889. Nor does membership of Parliament, as such, constitute public office for the purposes of the common law." (emphasis added)
Mr Reynolds SC also referred the Court to Article 118 from Stevens Criminal Law Digest which contained a statement to the same effect. Neither statement cited any authority in support.
Consistent with his duty to the Court Mr Reynolds SC also referred the Court to a judgment of Buckley LJ in R v Greenway & Others (unreported, 25 June 1992) (to be found at [1998] PL 356) in which his Lordship overruled a demurrer to an indictment charging a member of the House of Commons with bribery. Buckley LJ referred to the above passage from the Royal Commission's report and reviewed a number of authorities before concluding that were it necessary to decide whether a Member of Parliament holds a public office he would agree with Faucett J in R v White ([1998] PL 356 at 360). Buckley LJ also held that the common law offence of bribery was not limited by "any particular shade of meaning of the word 'office' but instead the "underlying reason or principle is concerned with the corruption of those who undertake a duty, in the proper discharge of which the public is interested".
In the end result, although there has been extra judicial commentary in the United Kingdom suggesting that Parliamentarians are not public officers, the description of what that phrase means in the UK cases extends to members of Parliament. The only UK authority that has expressly addressed the question, Greenway, has held that they are such officers. Tort of misfeasance in public office
I have already referred to various cases dealing with the tort of misfeasance in public office including Henly. It has not been determined whether the class of public officials who are liable for the common law offence of wilful misconduct in public office is as wide as the class of officials liable for the tort of misfeasance in public office, although the discussions of what constitutes a public officer often uses cases relevant to each interchangeably (see generally R v McCann [1998] 2 Qd R 56; 95 A Crim R 308).
In Leerdam & Anor v Noori & Ors [2009] NSWCA 90 at [3] to [4] Spigelman CJ summarised the position concerning the meaning of public officer for the purposes of the tort of misfeasance in public office as follows: "… There is no authoritative statement of a test for determining what constitutes a public officer for purposes of the tort of misfeasance. Nor is one needed. In almost all cases the answer will be obvious. (See Society of Lloyd's v Henderson and Others [2007] EWCA Civ 930; (2008) 1 WLR 2255 at [23]. The most detailed consideration of Australian authorities is T Cockburn and M Thomas 'Personal liability of public officers in the tort of misfeasance in public office' (2001) 9 TLJ 80.) Where there is any doubt about whether a particular person occupies a 'public office' for purpose of the tort, it will ordinarily be enough to approach the matter on the basis that the tort is 'concerned with' the 'misuse' or 'abuse' of public power (Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 at [37]) or that the tort is "concerned with performance of public duties" (Sanders v Snell at [39]). There is no relevant difference, as these citations from the joint judgment in Sanders v Snell indicate, between authorities which use the language of 'duty' and those which use the language of 'power'. The formulation 'abuses his office' is to be found in the foundational authority Henly v The Mayor and Burgesses of Lyme (1828) 5 Bing 91 at 107; (1828) 130 ER 995 at 1001."
Spigelman CJ's reference to the tort being concerned with the misuse or abuse of "public power" is consistent with Parliamentarians being found to be public officers. At the very least it does not detract from the statement of Meagher JA in Sneddon that a parliamentarian is a public officer. Kearney
For the sake of completeness I note that Mr Reynolds SC referred me to the decision in Ex parte Kearney [1917] NSWStRp 68; 17 SR (NSW) 578 ("Kearney") in which it was held that gangers and fettlers employed by the NSW Railways Commissioner were not "public officers" within the meaning of s 3 of the Crimes Prevention Act 1916. The Court held that as they had "no duty either by common law or statute to perform" but instead were only required to work under their contract of employment then they could not "come within the definition of public officer" (at 582 per Sly J and at 584 per Gordon J and 584 per Ferguson J). If anything, Kearney supports the characterisation of parliamentarians as officers. The source of their obligations and responsibilities is not a contract of employment but the Constitution Act as supplemented by the common law. Conclusion
The dicta in Sneddon clearly supports the conclusion that members of parliament are public officers. The position in the United Kingdom is summarised in [54]. A conclusion that MLCs are public officers accords with the various formulations of the meaning of "public officer" for the purposes of the tort of misfeasance in public office.
I return to the four points made by Mr Reynolds SC noted in [26] above. In relation to the first I accept that there is no authority binding on this Court that requires it to hold that an MLC is a "public officer". However the weight of authority, especially the dicta in Sneddon, points very strongly towards that conclusion. Second it is true that discussion in White and Boston (as well as Greenway) which suggested that a member of parliament is a public officer took place in the context of an allegation of bribery, but there is nothing to suggest that warrants any different approach to the crime of wilful misconduct in public office. There is no difference in substance between a parliamentarian receiving a bribe to advance the private interests of a third party and a parliamentarian using their position to advance their own pecuniary interests. In relation to the fourth matter, as members of the electorate, a jury of twelve citizens appears to be a body quintessentially well suited to determining the appropriate standards for the behaviour of members of parliament and allegations of gross departure from those standards.
As noted, the third matter raised by Mr Reynolds SC as suggesting the inapplicability of this crime to members of parliament was that the underlying rationale for the offence is to ensure that senior members of the executive are held responsible for malfeasance, and this does not extend to parliamentarians who are responsible to Parliament. The extent of their responsibility to Parliament is addressed at [122] to [159]. However, I have not found any support in the authorities for that statement. The width of the meaning of "public officer" is inconsistent with it. As with bribery, the offence is primarily concerned with abuses of the public trust by public officials (see Question of Law Reserved (No 2) of 1996 (1996) 67 SASR 63 at 64-65 citing Dr Finn, "Official Misconduct (1978) 2 Crim LJ 307 at 308). In my view, there is no proper basis for concluding that those who are appointed by the Crown should have the status of a "public officer" yet those who are elected should not. The electorate is entitled to at least the same degree of fidelity and honesty from their representatives as that owed by members of the executive to the local representative of a head of state who resides overseas.
No compelling reason for departing from the conclusion of Meagher JA in Sneddon has been demonstrated. To the contrary I respectfully agree with his Honour's conclusion. I am satisfied that an MLC is a public officer for the purposes of the crime that Mr Obeid is alleged to have committed. As no part of that conclusion rests upon any issue of fact, it follows that if the point is reached that I direct a jury then they will be instructed that, as a matter of law, an MLC is a public officer.

The duties of an MLC in dealing with the executive outside Parliament

It is not alleged in the indictment or the ACCS that Mr Obeid misconducted himself in the course of directly participating in Parliamentary proceedings such as a vote or debate in the Legislative Council or while serving on a Parliamentary committee. Instead the indictment alleges that he misconducted himself in his dealings or communications with an employee of the executive. This raises two issues which are taken up by Mr Obeid's notice of motion, namely whether the scope of his functions as parliamentarian extends to his dealings with the executive outside of Parliament and the nature and content of any duty that he may have breached. On behalf of Mr Obeid it was relevantly contended that the conduct that it is alleged he engaged in was not conduct in his capacity as an MLC and the facts as alleged in the ACCS do not disclose any breach by Mr Obeid of his duties as an MLC and therefore cannot establish an essential element of the offence (Accused written submissions filed 4 September 2015 at [3(a)] and [3(d)]). Consistent with the analysis in [11] to [12] the former contention appears to raise a demurrer point and the latter point appears to raise a matter that if established could warrant a stay of the proceeding. For the reasons that follow I reject each of these contentions.
Around 100 years ago the High Court published a troika of judgments concerning corrupt or improper conduct by members of parliament related to sales and purchases of land by state governments which included emphatic statements about the standards of honesty and propriety that they are expected to uphold, namely Wilkinson v Osborne [1915] HCA 92; 21 CLR 89 ("Wilkinson"), Horne v Barber [1920] HCA 33; 27 CLR 494 ("Horne") and Boston. In Wilkinson the High Court held that an agreement under which two members of Parliament were paid to "put pressure" on the executive government of a State to purchase land in circumstances where payment was contingent upon the completion of the purchase following approval of the House of which they were members was contrary to public policy and void. In Horne an agreement to pay commission on a sale of land to the Victorian Government was held void for being contrary to public policy because both parties to the agreement intended that a member of the Victorian parliament, employed by one of the parties, would receive a share of the commission for attempting to influence the relevant Minister to approve the sale. The essential facts in Boston have already been noted (at [35]).
In Wilkinson Isaacs J identified a conflict between the member's duty of supervision of the land purchase and "possible veto" of the purchase in parliament and his personal interest in the transaction as the basis for concluding that the transaction was void (at 102 to 103). His Honour identified the nature of the scope and nature of the duty in the following terms (at 98 to 99): "…, the duty of a member of the Legislature is unquestionable. As Lord Lyndhurst said in Egerton v. Brownlow [4 HLC 1 at 161]]: 'In the framing of laws it is his duty to act according to the deliberate result of his judgment and conscience, uninfluenced, as far as possible, by other considerations, and least of all by those of a pecuniary nature.' And I may add that the same obligation exists in relation to his duty in watching on behalf of the public all the acts of the Executive. Without that, responsible government would be but a name." (emphasis added)
In Horne the relevant land acquisition did not require parliamentary approval and there was no suggestion that it would necessarily come before either House. Knox CJ, and Gavan Duffy JJ stated that (at 499): "We think it unnecessary to determine whether Mr. Deany undertook to use his position as a member of Parliament for the purpose of procuring a sale of the defendant's land. So long as he remained a member of Parliament he could not, in our opinion, effectively divest himself of that character in dealing with the Minister and the Board, and he in fact made no attempt to do so … … the agreement sued on in this case afforded an inducement to Mr. Deany to misuse his position and influence as a member of Parliament for his own pecuniary gain as a commission agent, and was also calculated to hamper him in forming an unbiased judgment and in expressing a free and honest criticism on the transaction as an act of the Executive Government or its agents."
In Horne Isaacs J expanded upon the above statements from Wilkinson in stating (at 500-501): "When a man becomes a member of Parliament, he undertakes high public duties. Those duties are inseparable from the position: he cannot retain the honour and divest himself of the duties. One of the duties is that of watching on behalf of the general community the conduct of the Executive, of criticizing it, and, if necessary, of calling it to account in the constitutional way by censure from his place in Parliament - censure which, if sufficiently supported, means removal from office. That is the whole essence of responsible government, which is the keystone of our political system, and is the main constitutional safeguard the community possesses. The effective discharge of that duty is necessarily left to the member's conscience and the judgment of his electors, but the law will not sanction or support the creation of any position of a member of Parliament where his own personal interest may lead him to act prejudicially to the public interest by weakening (to say the least of it) his sense of obligation of due watchfulness, criticism, and censure of the Administration … In the present instance it was, and is, the clear public duty of Deany to call the Government to account if, in his opinion, the Minister decided that an extravagantly high price was to be given for the property." (emphasis added)
In Horne, Rich J drew a direct analogy between the position of a member of Parliament and the duties of a trustee. His Honour stated that (at 501): "Members of Parliament are donees of certain powers and discretions entrusted to them on behalf of the community, and they must be free to exercise these powers and discretions in the interests of the public unfettered by considerations of personal gain or profit. So much is required by the policy of the law. … Courts of Equity, in dealing with transactions between private persons have always avoided as contrary to the policy of the law purchases by trustees from themselves. … This applies with greater force to public affairs and the obligations and the responsibility of the trust towards the public implied by the position of the representative of the people … [The member's] public duty and private interest were in conflict, and any other facts are immaterial."
Similar emphatic statements were made in Boston. Thus Knox CJ stated (Boston at 393): "A member of Parliament cannot divest his position of the right which it confers to take part in the proceedings of Parliament - he cannot 'use his position as a member of Parliament' stripped of its principal attribute. The influence which his position as a member of Parliament enables him to exert on a Minister has its source in his right to sit and vote in Parliament, and it would be idle to pretend that in discussions and negotiations between a Minister and a member that right, or the power it confers on a member, can be disregarded or ignored. The tenure of office of the Minister and his colleagues may be dependent on the vote or on the abstention from voting of an individual member, or even on his words or his silence in Parliament."
The judgment of Isaacs and Rich JJ in Boston addressed both the scope and content of the duty. In relation to the latter their Honours referred to the "fundamental obligation" of members of Parliament being the "duty to serve and, in serving, to act with fidelity and with a single-mindedness for the welfare of the community" (at 400). In relation to the latter their Honours adopted Isaacs J's statements in Horne set out in [67] and then rejected an argument that the conduct alleged by the indictment did not violate the duty of a member of Parliament stating (at 402-403): "It is quite true, as urged on behalf of the respondents, that a member's legal duty does not extend beyond his parliamentary action, including in that whatever he is lawfully deputed by Parliament to do, and, therefore, it does not extend to visiting Departments and advising Ministers or interviewing subordinate officers. It is an everyday experience that members of Parliament can and do in many legitimate ways materially and honourably aid the Administration by assistance and advice outside the walls of Parliament. This unofficial aid to the conduct of public business is in effect a recognized adjunct to his parliamentary position, and ceases with it. But if intervention by a public representative be impelled by motives of personal gain, if it be the outcome of an agreement based on some pecuniary, or what is equivalent to a pecuniary, consideration and constituting the member a special agent of some individual whose interests he has agreed to secure - interests that are necessarily opposed pro tanto to those of the community - the whole situation is changed. To apply some words in Wilkinson v. Osborne … in the judgment of Isaacs J, he who had been appointed to be a sentinel of the public welfare becomes a "sapper and miner" of the Constitution. The power, the influence, the opportunity, the distinction with which his position invests him for the advantage of the public, are turned against those for whose protection and welfare they come into existence. He can never afterwards properly discharge in relation to that matter his duties of public service - the parliamentary duty of honest, unbiased and impartial examination and inquiry and criticism which must arise; and he has therefore essentially violated his legal duty to the State. It is impossible to sever the voluntarily assumed intervention departmentally from the legislative position to which by custom it is recognized as incidental. A member so intervening speaks as member and is dealt with as member, and not as a private individual. His ulterior power of action, though not intruded into observation, is always existent and is always known to exist. It is scarcely even camouflaged. The importance of even one parliamentary vote on a critical occasion is not entirely unknown. But the immediately important consideration in this case is the effect of the intervention for private pay on the member himself." (emphasis added)
In Boston Higgins J addressed the existence of a potential connection between the conduct of the relevant member and their conduct inside Parliament but added (at 410): "As Lord Mansfield said [in R v Vaughan [1769] Eng R 73; 4 Burr, 2494], 'a Minister trusted by the King to recommend fit persons to offices would betray that trust, and disappoint that confidence, if he should secretly take a bribe for that recommendation'. The same principle applies, in my opinion, to a member trusted by the people to advise the King as to the making of laws and to watch the doings of Ministers on whom the Legislature confers powers for public purposes. … I see no reason to doubt that even if the count were confined to an agreement as to the action of the member outside the House - action in which the member used his position as member - the agreement would be an indictable conspiracy; but that point it is not necessary at present to decide." (emphasis in italics added; emphasis in bold in original)
I have set out these passages in length because their meaning and effect was debated at some length. In my view these cases establish that the scope of a parliamentarian's functions and responsibilities extend beyond attending and participating in Parliament and its proceedings. They include the function or responsibility of watching or scrutinising the executive (see [65], [67] and [70]). Further the scope of their functions extends to proffering advice and assistance to the executive and its employees outside of Parliament as those activities are a "recognized adjunct" or "incidental" to a parliamentarian's position (see [69] to [71]). Subject to the circumstance in which it is plain that the parliamentarian is not dealing with the executive in a personal capacity (see [79]), in proffering such advice and assistance the parliamentarian is nevertheless using their position as such because implicit in their actions in doing so is their ability to pursue the matter in Parliament if they consider it appropriate to do so (see [69] and [70])
What duty does a Parliamentarian owe in performing these functions? In each of Wilkinson and Horne it was held that there was a conflict between the private pecuniary or financial interest of the member of parliament in the relevant transaction and his or her duty to apply himself or herself to his or her responsibilities as a Parliamentarian for the benefit of the public. The language and analysis of those judgments and Boston was analogous to that applied to fiduciaries. Hence in Wilkinson Isaacs J agreed that parliamentarians must act "uninfluenced … by other considerations … [at least] of a pecuniary nature" (at [65]). In Horne Rich J stated that they must act "unfettered by considerations of personal gain" (see [68]). In Boston Isaacs and Rich JJ stated that a parliamentarian must "act with fidelity" and not be motivated by "personal gain" (see [70]).
It is true that the various statements of a parliamentarian's duty in Wilkinson, Horne and Boston also described it in expansive terms and in that respect the performance of those duties was "necessarily left to the member's conscience" (Horne at 500 per Isaacs J; see [67]). However the obligations of a fiduciary are often expressed in positive terms such as serving "exclusively the interest of a person or a group of persons" (Meagher Gummow & Lehane's Equity Doctrine & Remedies, 4th Ed; Meagher, Heydon and Leeming at [5.005]), but they are nevertheless "proscriptive rather than prescriptive in nature" (Pilmer v Duke Group Ltd [2001] HCA 31; 207 CLR 165 ("Pilmer") at [74]). As such they reduce to an obligation "not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict" (Breen v Williams (1996) 186 CLR 71 at 113) or relevantly to this matter "not to promote the personal interests of the fiduciary by making or pursuing a gain in circumstances in which there is a conflict or a real or substantial possibility of a conflict" between the personal interests of the fiduciary and those to whom the duty is owed (Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 103 per Mason J).
Just as with the duties of a fiduciary, the various statements in Wilkinson, Horne and Boston as to the nature and scope of a parliamentarian's duty reduce to a negative obligation not to use their position to promote their own pecuniary interests (or those of their families or entities close to them) in circumstances in which there is a conflict, or a real or substantial possibility of a conflict, between those interests and their duty to the public.
On this approach. and subject to hearing from the parties in this case, the jury would be instructed that the functions of MLCs extend to scrutinising the executive government of this State including the actions of Maritime. They would also be instructed that, unless it is self-evident that an MLC is only dealing with the executive in their personal capacity, an MLC's functions extend to communicating with government Departments. Further, the jury would be instructed that, in so dealing, MLCs must not promote their own pecuniary interests (or those of their families or entities close to them) in circumstances in which there is a conflict or a real or substantial possibility of a conflict between those interests and their duty to the public. It would also follow that the jury would have to be instructed that, to conclude that Mr Obeid wilfully misconducted himself, they would have to be satisfied that in the circumstances he knew or was reckless that he was precluded from using his position to make representations to the Executive or its employees for the purpose of financially benefiting himself or members of his family or entities closely associated with himself or members of his family, but nevertheless chose to do so.
In relation to this topic I note four further matters.
First, the statement by Mason J in Hospital Products Ltd v United States Surgical Corporation as to the scope of the fiduciary duty set out in [74] is prefaced by the words "without informed consent". In this case it is a necessary element of the act of Mr Obeid alleged in the indictment that he did not disclose his "interest" in the leases to Mr Dunn. If that fact is not proven beyond reasonable doubt then the Crown case will fail. It follows that there is no occasion in this case to address whether there is any analogous concept to "informed consent" in this context beyond making it clear to Mr Dunn that the approach concerned Mr Obeid's personal financial interests.
Second, various scenarios confronting parliamentarians were referred to in argument. One such circumstance has been adverted to above, namely the circumstance of a member of parliament dealing with the executive in a purely personal capacity. One matter that has changed since the time of Wilkinson, Horne and Boston is the size of the executive government. It is very difficult to conceive of any member of parliament being able to function as a citizen without having dealings with the executive in relation to their personal affairs such as taxation or licences etc. Neither a judge at first instance nor an intermediate Court of Appeal has the authority to revisit a High Court judgment on the basis that social conditions have changed since it was published (see Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395 at [17]). Nevertheless Wilkinson, Horne and Boston involved bribery or improper payments by third parties. Nothing in any of the circumstances of those cases was capable of establishing that the dealing between the member of parliament in Parliament in those cases with the executive concerned something that was self-evidently their own affairs. In any event such a dealing would not give rise to a conflict or potential conflict between a Parliamentarian's personal interests and his or her duty to the public (see Pilmer at [74]).
Another scenario that was raised in argument concerned the circumstances of a member of parliament advocating a position that, if adopted, could or would benefit themselves but also benefit parts of their electorate such as the location of a road or a flight path. A proper consideration of that scenario would require a more detailed factual investigation into the precise nature of the benefit and the member's motives but, on its face, such a scenario does not suggest a conflict or potential conflict between a Parliamentarian's personal interests and his or her duty to the public.
Third, on or about 26 August 2015 the solicitors acting for Mr Obeid wrote to the Office of the Director of Public Prosecutions seeking particulars of the indictment. One question asked whether it was alleged that Mr Obeid breached a duty which he was subject to as an MLC and, if so, what duty? On or around 31 August 2015 the ODPP responded. To that question they answered "yes". They identified the duty as follows: "And if so: (a) what was the duty? (1) A duty to serve, and in serving, to act with fidelity and with a single-mindedness for the welfare of the community. (2) A duty to act with honesty and integrity in the best interests of the people of New South Wales in all of their endeavours. (3) A duty to act according to the deliberate result of his judgment and conscience, uninfluenced, as far as possible, by other considerations, such as those of a pecuniary or private or personal nature, whether direct or indirect. (4) A parliamentary duty of honest, unbiased and impartial examination and enquiry and criticism affecting non-parliamentary action such as that particularised in the ACCS at [21], [23], [28] and [29]. (5) A duty not to seek any direct or indirect private or personal gain, advantage or benefit from the use of his position as an MLC. (6) A duty not to intentionally put himself into a position in which his parliamentary duties conflict with his pecuniary or private or personal interests. (7) A duty to maintain the public trust placed in him by performing his duties with honesty and integrity and using his influence to advance the common good of the people of New South Wales."
At the hearing of this motion there was a debate about the adequacy of this response because it did not identify a duty extending beyond direct participation in parliament. However the question was not directed to the scope of an MLC's functions but the obligations imposed on them while discharging them. Leaving aside particular (7) which appears to be part of the introduction to a code of conduct adopted by the Legislative Council, the rest of the particulars are either taken directly from passages in the above three cases (or Sneddon, R v White or Rao) or seek to paraphrase their effect. That is sufficient.
Fourth, in his oral submissions Mr Reynolds SC made seven points about so much of the Crown case that rested upon demonstrating a breach of duty on the part of Mr Obeid. These were repeated and to a certain extent expanded upon in his supplementary submissions filed 21 September 2015. First he contended that there is "no case law to support the duty". The case law has been discussed above. Second, he submitted that the duty contended for by the Crown is not a legal duty, and thirdly he submitted that, if it is a duty, it is one of "imperfect obligation". The nature of the duties owed by a Parliamentarian are not "legal duties" if that is meant to refer to a duty owed to a particular individual or entity or a class of such person which is actionable by them in the event of breach. However that does not exhaust the concept of a duty for the crime of wilful misconduct in public office. The crime is necessarily concerned with duties owed to the public as a whole. So much of that duty that precludes members using their position to advance their own pecuniary interests was found to have legal consequences in Wilkinson, Horne and Boston.
Fourth, Mr Reynolds SC submitted that "no breach [is] particularised in the particulars". For the purpose of this application the breach is adequately identified in the indictment. Any uncertainty about that matter which truly causes difficulty for Mr Obeid in the trial can be taken up by Counsel appearing at the trial. Fifth, he contended that the duty is "meaningless or cast in terms of meaningless cant". It suffices to state that some of the paragraphs of the Crown's particulars correspond with direct quotes from the High Court judgments set out above. Sixth, it is submitted that there is no evidence to support the alleged breach. In the written submissions filed 21 September 2015, this is re-stated as a complaint that a representation to Mr Dunn of the kind attributed to Mr Obeid could never amount to a breach. In particular it is contended that the only case that could be demonstrated was one based on Mr Obeid having an arguable "interest" in the lease, a statement by him that the tenants were not well treated, the making by him of a request to speak to their lawyer and a non-disclosure by Mr Obeid of his interest. I address similar complaints below at [101] to [103], [113] to [120]. It would be open to a jury to conclude that Mr Obeid had a very real interest in the leases, that at the very least he knew Mr Scanlan would be advocating a beneficial outcome for the lessees and that the imprimatur from his office was likely to add weight, perhaps significant weight, to whatever position Mr Scanlan was advocating. These matters are sufficient for a jury to consider whether Mr Obeid's alleged conduct amounted to a breach of his duty. Whether the conversation attributed to Mr Obeid and his interest in the leases is a sufficient basis for an inference that he knew specifically what Mr Scanlan was advocating is a matter I need not determine at this stage. Seventh, it was submitted that to the extent there was a duty imposed on Mr Obeid it was only a "parliamentary duty", that is, a duty confined to his participation in parliamentary proceedings. It follows from the above that I reject that contention.
Accordingly it follows that I do not accept that the misconduct alleged in the indictment was not conduct undertaken by Mr Obeid in his capacity as an MLC. Further it also follows that I do not accept that the facts alleged in the ACCS (and the indictment) are not capable of establishing a breach by Mr Obeid of his duties as an MLC and therefore cannot establish an essential element of the offence.

Impropriety must be connected to the office

The next submission made on behalf of Mr Obeid concerned the second element of the offence. It is to be recalled that the indictment alleges that Mr Obeid misconducted himself "in the course of or connected to his public office" as an MLC. This formulation replicates Redlich JA's statement of the elements of the offence in Quach set out at [22].
Mr Reynolds SC made two submissions in respect of this element. First he contended that the conduct alleged against Mr Obeid in the indictment was not "connected to" his position as an MLC in that it was not connected to any powers or functions of that position. For the reasons already stated I reject that contention.
Second, Mr Reynolds SC respectfully submitted that, if the formulation of the second element of the offence by Redlich JA in Quach only requires that there is a "mere … connection with [the] public office" which does not involve the exercise of any "power, discretion or responsibility of that office", then Quach was wrong in that respect and should not be followed. Although it follows from my rejection of the first submission that this contention does not directly relate to the facts alleged against Mr Obeid, Mr Reynolds SC nevertheless pressed this issue on the basis that if it is accepted it may raise a basis for quashing the indictment. This is so because to establish the validity of the charge in the indictment it must be shown that "every set of facts which would satisfy its terms would constitute" an offence because an accused "cannot be called on to plead to a charge which is so framed that its terms may be satisfied by proof of facts which constitute a crime, and also by proof of facts which do not constitute a crime" (Boston at 414 per Gavan Duffy and Starke JJ).
In Quach the accused was a police officer who was alleged to have used his position to procure sexual intercourse from a person suffering from mental illness whom he encountered during the course of his duties. On his behalf it was contended that the alleged conduct did not occur while he was acting in his public office. Based on a statement in Re Attorney-General's Reference (No. 3 of 2003) [2005] QB 73 it was submitted that the public officer must be acting "as such" at the time of the misconduct. Redlich JA rejected this contention. After reviewing the relevant authorities, his Honour accepted the view of Professor Finn in "Public Officers: Some Personal Liabilities" (51 ALJ 313-314) that the "kernel of the offence" is that the officer "has abused his official position" (Quach at [37]). His Honour found that the "official's conduct will be linked to their office when in doing the impugned act, the official did something that he or she was duty bound to refrain from doing" (Quach at [38]). It follows from that conclusion that, even if I had concluded that Mr Obeid's conduct in communicating with a member or employee of the Executive (ie Mr Dunn) did not involve a discharge of a function of an MLC, then the charge would still be supportable if there was a sufficiently arguable basis for concluding that he was nevertheless duty bound to refrain from requesting Mr Dunn take action "with the intention of securing" a pecuniary benefit for himself or entities closely associated with him. The various statements in Wilkinson, Horne and Boston support that conclusion.
Mr Reynolds SC accepted that, as Quach was a decision of an intermediate Court of Appeal of another state, it was incumbent on him to demonstrate that it was "plainly wrong" in this respect and thus should not be followed (CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [49] to [50]). In his written submissions filed on 4 September 2015 he pointed to three matters as warranting that conclusion.
The first was that the reasoning in Quach relied on a passage from the judgment of Sir Anthony Mason in Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 at [47] ("Sin Kam Wah"), to the effect that "wilful misconduct which has a relevant relationship with the defendant's public office is enough" when, according to Mr Reynolds SC, later appellate authority in Hong Kong has made clear that any form of 'relationship' or 'connection' is not sufficient. The decision relied on is HKSAR v Wong Lin Kay (2012) 15 HKCFAR 185 ("Wong Lin Kay") in which a truck driver employed by a government department was convicted at first instance of wilful misconduct in public office for having driven in the course of his employment whilst disqualified having previously been convicted of drink driving. The Hong Kong Court of Final Appeal dismissed an appeal from an order setting aside his conviction. Ribeiro PJ held (at [37]) that the driver fell into an "excluded category of government employees" and "did not occupy a public office entrusting him with powers and discretions to be exercised for the public benefit". The other members of the Court agreed (per Ma CJ at [1], Chan PJ at [2], Mortimer NPJ at [40] and Lord Millet NPJ at [44]).
Mr Reynolds SC pointed to the emphasised portion of the following passage in the judgment of Ribeiro NPJ in Wong Kin Lay at [17] as casting doubt on this aspect of Quach: "... The authorities do not support the proposition that liability for misconduct in public office is established by proving breach of the duty of loyalty owed by a government servant qua employee to his employer. The offence does not arise merely on the basis of some wrongdoing occurring within the confines of the employer/employee relationship even where the employer is a government or public body. It requires misconduct by a public officer in relation to powers and duties exercisable by him for the public benefit." (emphasis added)
I do not consider that this passage (or a passage to similar effect in the judgment of Lord Milttet NPJ at [47]) warrants any reconsideration of Quach. In substance Wong Kin Lay is another instance of the principle stated in Kearney (see [58]). The reference to misconduct "in relation to powers and duties exercisable by him" in the above passage only invites an inquiry into what powers and duties are being referred to bearing in mind that the phrase "in relation to" is of wide import. In Quach the relevant duty was a negative one in the sense of a duty to "refrain from doing" something, namely taking advantage of persons encountered in the course of performing work as a police officer. In my view there is no difference of substance between Wong Kin Lay and Quach.
The second matter pointed to by Mr Reynolds SC was various United Kingdom authorities including Re Attorney-General's Reference (No. 3 of 2003) and Bembridge which were said to "require as an essential element of the offence that the misconduct be the conduct of a public officer acting as such". These authorities were all reviewed and addressed by Redlich JA in Quach. I am content to adopt his Honour's analysis of the effect of those decisions on this point with which I respectfully agree.
Third Mr Reynolds SC submitted that "to frame the elements of the criminal offence by reference to the need for a 'sufficient connection' with the office, without providing guidance on the nature of the connection required, is to leave the boundaries of the offence entirely unclear" (written submissions filed 4 September 2015 at [26]). The reference to "sufficient connection" is to the following passage from Quach at [41] where Redlich JA stated: "I consider that the proper formulation of the offence requires the element to be expressed so that it encompasses the circumstance in which the offender's misconduct, though not occurring while the offender was discharging a function or duty, had a sufficient connection to their public office. Whether the misconduct was so connected will turn upon the facts of the case." (emphasis added)
Mr Reynolds contends that this formulation is "far too broad" He submitted that it entails a risk of a public officer being convicted on the basis of some tenuous relationship with their office. He instanced the example of a parliamentary officer frequenting a brothel while on a trip for parliamentary business and thereby bringing that office into disrepute.
In my view this submission amounts to no more than a complaint that the prescription of elements of criminal offences that require a normative judgment are to be avoided because of the potential for the tribunal of fact to come to extreme or absurd conclusions. Whether or not as a matter of legal policy that proposition is correct does not in my view warrant any suggestion that Quach is in this respect wrong. Otherwise, in seeking to identify supposedly absurd examples of the offence that might flow from Quach it must be remembered that the elements of the offence require an abuse of the position by the public officer in the sense of a wilful breach of duty which can include a duty to refrain from acting. There is clearly a necessity to identify the relevant duty, a matter which has occupied a considerable part of this judgment.
It follows that I am not persuaded that Quach is plainly wrong. I reject this aspect of Mr Obeid's application.

Alleged misconduct: "lobbying covertly"

Mr Obeid's written submissions dated 4 September 2015 made a series of submissions which were in part directed to the following part of the ACCS: "It is the Crown case that Edward Moses Obeid lobbied Stephen Dunn covertly in respect of the matters particularised in paragraph 21 and did so partially for an outcome beneficial to his private interests, thereby misconducting himself in public office."
A significant part of Mr Obeid's written submissions filed 4 September 2015 (at [61] to [84]) is devoted to attacking the characterisation of Mr Obeid's conduct as having "lobbied … covertly". The attack is misconceived in that it overstates the significance of the ACCS. It is not a pleading. It is merely a document that answers the description "statement of facts" within the meaning of s 142(1)(b) of the Criminal Procedure Act. It is a useful guide to the basal facts which the Crown contends it can demonstrate. If it was demonstrated that the evidence available to the Crown cannot support the assertion that Mr Obeid "lobbied … covertly" of itself that would have no legal consequence for this application. Instead the relevant question for the demurrer application is whether the facts alleged in the indictment are capable of constituting the offence and the relevant question for the stay is whether there is any evidentiary material capable of establishing those facts (see [11] to [13]). Despite this I will address some of the complaints made as they may be relevant to those two issues. In particular, although a demurrer does not involve an inquiry beyond the facts stated in the indictment, at least so far as the indictment refers to Mr Obeid having made "representations", it may be relevant to identify what those representations are.
In relation to the suggestion that Mr Obeid "lobbied" Mr Dunn six points were made. The first, second and fourth points were to the effect that the available evidence is not capable of demonstrating that Mr Obeid engaged in any "express advocacy" for an outcome, he is not alleged to have conveyed any implied representation that action should be taken and it is not alleged that he sought any specific outcome in relation to the tenancies (Accused submissions filed 4 September 2015 at [67], [68] and [70]). Accepting these points for the present, they are anything but determinative. Given the respective positions that Mr Obeid and Mr Dunn occupied and the subject matter of the conversation, it follows that the evidence is capable of establishing that Mr Obeid's referral of Mr Dunn to Mr Scanlan was an indication to Mr Dunn that he should consider the position advocated by Mr Scanlan on behalf of the lessees favourably and that it was at the very least worthy of real consideration. That is potentially a significant degree of intervention.
The third point was that the Crown had not identified any representation other than that noted in [18] and the balance of the communications between Mr Obeid and Mr Dunn simply involved Mr Dunn informing Mr Obeid of the outcome of his dealings with Mr Scanlan. Again accepting that for the present, it does not advance the matter. The fact that Mr Dunn reported back to Mr Obeid is consistent with him reporting to a Parliamentarian who has taken an interest in the matter.
The fifth point was that it was said to be of some significance to this application that Mr Obeid was only the beneficial object of the discretionary trust that owned the leases and as such had "no proprietary interest in any assets of the trusts" (citing Kennon v Spry [2008] HCA 56; 238 CLR 366 at 417 - 418). Again this is not determinative. The indictment does not limit itself to proprietary interests. Instead it refers to Mr Obeid having had a "commercial and/or beneficial and/or family and/or personal interest in the said tenancies". Being the object of the discretionary trust that owned the leases is capable of being a "commercial" or a "personal" interest in the said tenancies. Given that his family were the other objects, it follows that this material is capable of demonstrating a "family" interest in the said tenancies. In addition, included in the Crown brief that was tendered on this application is some transcript of a witness, Paul Maroon, who stated that each week a portion of the takings from the business that was conducted on the leased premises was delivered to either Mr Obeid or his wife. This material is capable of demonstrating that the Trustee's power to make distributions in favour of Mr Obeid was exercised. In stating that, it is not clear whether the Crown proposes to call Mr Maroon. The sixth point is that Mr Dunn is not the relevant decision maker. Nevertheless he occupied a senior position and he appears to have had a significant capacity to exert influence. For present purposes that is sufficient.
In relation to the reference in the ACCS to the lobbying being undertaken "covertly", the written submissions dated 4 September 2015 (at [76]) noted that the Crown's particulars identified that Mr Obeid impliedly represented that he was telephoning Mr Dunn "in his capacity as an MLC for and on behalf of arm's length constituents". They contend that there is no basis for that contention. The Crown particulars pointed to various matters that were said to support that conclusion including the "prior relationship between Mr Obeid and Mr Dunn" and the alleged concealment by Mr Obeid of his interest in the leases. According to Mr Reynolds SC the former point was said to travel nowhere as the only prior relationship was said to be of "friend and mentor'. The latter point was said to demonstrate that the Crown was "hopelessly circular" because it "relies on a representation arising from an alleged failure to disclose an interest (which presumes there was an obligation to do so) as giving rise to an implied holding out that the request was made in Mr Obeid's capacity as an MLC, which in turn gives rise to an obligation to disclose that interest" (Accused submissions dated 4 September 2015 at [79]).
I disagree. The fact that Mr Obeid held the position of an MLC was a common fact known to both Mr Dunn and Mr Obeid. The jury would be entitled to reason that, given the subject matter was not something that self evidently related to Mr Obeid's personal affairs, then unless Mr Obeid made it abundantly clear it did relate to his personal affairs or commercial interests, then his telephone contact was being undertaken by him in the performance of his position as an MLC representing the electorate. When it came to dealing with the executive Mr Obeid did not have any other line of work. As stated by Isaacs J in the passage from Horne at 500 set out in [67]: "When a man becomes a member of Parliament, he undertakes high public duties. Those duties are inseparable from the position: he cannot retain the honour and divest himself of the duties."
The remaining submissions on this topic are to the effect that as there was some form of common knowledge that Mr Obeid's relatives had some involvement in the leases, this somehow affected Mr Dunn's understanding that Mr Obeid was communicating in his capacity as an MLC and otherwise points to some anticipated evidence of Mr Dunn that referred to the significance of Mr Obeid being a "politician" generally which was said to be somehow different from his being an MLC (Accused's submissions filed 4 September 2015 at [80]). At best these only raise matters of fact for a jury. None come close to warranting the relief sought in the notice of motion filed on 9 September 2015.
I reject this aspect of the application.

Alleged misconduct not wilful

It was contended on behalf of Mr Obeid that the third element of the offence could not be established, namely that he "wilfully misconducted himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty". In Re Attorney-General's Reference (No 3 of 2003) at [30] it was stated that there "must be an awareness of the duty to act or a subjective recklessness as to the existence of the duty".
The only submission made in respect of this element is that there was no such duty (Accused submissions filed 4 September 2015 at [86]). As I have already rejected that submission it follows that I reject that contention. Otherwise I note that the absence of disclosure by Mr Obeid of his interest in the lease might ground a basis for a jury concluding that Mr Obeid knew or was reckless as to whether he was precluded from using his position to make representations to the Executive including Maritime for the purpose of financially benefiting himself or members of his family or entities closely associated with himself or members of his family but nevertheless did so (see R v Boulanger [2006] 2 SCR 49 at [57] per McLachlin CJ).
I reject this aspect of the application.

Alleged misconduct not serious

It was further contended on behalf of Mr Obeid that the Crown case is not capable of establishing the fifth element of the offence set out in Quach at [22] above and thus it was "foredoomed to fail" (Accused submissions dated 4 September 2015 at [97]). The formulation of that element is taken directly from a passage of Sir Anthony Mason NPJ's judgment in Shum Kwok Sher at [86] (see Quach at [43]). In Quach at [43] Redlich JA also noted the statement in Attorney General's Reference (No 3 of 2003) at [56] to the effect that there must be a "serious departure from proper standards" and the conduct must be "so far below acceptable standards as to amount to an abuse of the public's trust in the office holder".
This aspect of the offence has recently been considered by the United Kingdom Court of Appeal in R v Chapman & Ors; R v Sabey [2015] 2 Cr App R 10 which concerned prison officers disclosing information in relation to notorious juvenile offenders to the press for payment. Chapman contains a detailed discussion of what the trial judge in that case should have included in the jury directions but cautioned that "context is important" (at [33]). It is not necessary to consider that discussion in detail at this point. It sufficies to note two matters. First that any such directions will need to be consistent with and explanatory of Quach's approval of Sir Anthony Mason's formulation of this element in Shum Kwok Sher at [86] which emphasises 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". Second, the statements by Lord Thomas in Chapman that the directions to the jury must "make clear … that the misconduct must be more than a breach or neglect of duty" (at [31]) and the threshold established by this element "is a high one" (at [35]) appear to be apposite to all such offences irrespective of context.
In the written submissions dated 4 September 2015 (at [87ff]), Mr Reynolds SC made two points in respect of this element. The first was that this element requires the identification of the "responsibilities" that Mr Obeid was required to discharge as an MLC and that this "in turn requires that he was acting in his capacity as an MLC" at the time of the offence, which he was not. This repeats a submission that I have already rejected.
The written submissions on this point also noted that this was not an allegation of an MLC "receiving cash in return for service in parliament and for putting pressure on public officers" which was said to be a point of contrast with Boston. Instead, according to the submissions, at its highest "the case is that an MLC, who did not have a specific interest in the CQ leases, requested that a public officer (who was not in a position to direct any change to the policy regarding the CQ leases) meet and listen to a representative of a number of the CQ tenants, without requesting any outcome or response to that meeting, and without directing or authorising the tenants' representative to make any request at that meeting" (Accused submissions dated 4 September 2015 at [89]). This conduct is said to be "incapable of being described as serious and meriting criminal punishment having regard to the duties of an MLC".
I do not agree. The statements in Wilkinson, Horne and Boston emphasise the significant responsibilities of the office of an MLC and the importance of the objects which they serve. In relation to the nature and extent of the departure, a jury would be entitled to conclude that there is no difference in substance between a parliamentarian receiving a payment from a third party in an endeavour to exert influence over a member or employee of the executive, that is a bribe, and a parliamentarian taking that action to further their own personal or their family's pecuniary interests as is alleged in this case. Further, on the facts stated in the ACCS, it would be open to a jury to conclude that the form of influence that was exerted was simply a subtle means of seeking to achieve a commercial objective in circumstances where a blatant approach was unlikely to be successful. Otherwise the nature of Mr Obeid's interest has already been addressed and, as noted, Mr Dunn may not have been the decision maker but he was a senior officer with carriage of the issue and, as such, had a great capacity to influence the outcome.
The second point raised is that in determining the "seriousness" of the misconduct "it is normally necessary to consider the consequences of the breach" (Accused submissions filed 4 September 2015 at [90]). In that regard Mr Reynolds SC pointed to the statement in Attorney-General's Reference (No 3 of 2003) at [46] that whether misconduct is of a "sufficiently serious nature" will depend on the factors stated by Sir Anthony Mason NPJ in Shum Kwok Sher "along with the seriousness of the consequences which may follow from an act or omission" (and later that "it will normally be necessary to consider the likely consequences of the breach" at [58] to [59]).
To that end Mr Reynolds SC submitted that the only direct alleged consequence of Mr Obeid's conduct was that Mr Dunn met Mr Scanlan and that would be likely to have occurred in any event. Further he pointed to the anticipated evidence of Mr Dunn that the outcome would be unlikely to have been any different had he known of Mr Obeid's interest and that Mr Dunn favoured an outcome involving direct negotiations with the lessees in any event (Accused submissions filed 4 September 2015 at [90] to [94]).
The statement in Attorney-General's Reference (No 3 of 2003) concerning the consideration to be given to the likely consequences of the relevant misconduct was in the context of a prosecution of police officers who were alleged to have seriously neglected the health and welfare of an arrested suspect who died in custody. In such circumstances it is understandable that a consideration of the likely (and actual) consequences was considered materially relevant to an assessment of the seriousness of the misconduct. In that context such a consideration is an aspect of the determination of the "extent of the departure" involved in the officer's conduct (see [112]).
However in cases involving allegations of the exercise of corrupt influence the inquiry is focussed on the likely effect of the integrity of the decision making processes rather than a consideration of whether but for the misconduct the same result would have ensued. Thus in discussing this issue in HKSAR v Ho Hung Kwan Michael (2013) 16 HKSFAR 525 Chan ACJ stated at [29] to [30]: "29. In cases where corruption, dishonesty or other illegal practices are involved, it is not necessary to specifically consider the consequences of the misconduct in deciding whether it is serious enough as to constitute the offence of misconduct in public office. The misconduct speaks for itself: the seriousness of the consequences of such corrupt, dishonest or illegal practices will be obvious. 30. In other cases where corruption, dishonesty or other illegal practices are not involved, the consequences of the misconduct may not be obvious. Nevertheless, this must be a factor which is also relevant when considering whether the misconduct is serious enough as to merit criminal sanction. I do not think the prosecution is disputing the relevance of this factor. Nor can this be disputed. This factor was not mentioned in the discussion of this offence in Shum Kwok Sher. This was a case of granting preferential treatment to a close relative in relation to some government contracts and the seriousness of such misconduct and its consequences could be readily seen. I also do not think the list of factors mentioned in that case was intended to be exhaustive. Further, in most cases, the consequences of the misconduct will usually have been considered when one is examining the nature and extent of the departure from those responsibilities."
It does not necessarily follow from this that evidence concerning the likely and actual consequences of Mr Obeid's intervention is irrelevant. However for the purposes of determining the fifth element of the offence the relevant inquiry appears to be directed towards the likely effect of the intervention on the integrity of Maritime's decision making processes. It would be open to a jury to conclude that the alleged intervention by Mr Obeid who held the position of an MLC had the significant potential to affect and potentially corrupt the decision making processes surrounding the renewal of the leases. It had the potential to add weight to whatever position Mr Scanlan was advocating on behalf of the lessees and diminish the weight of the existing Departmental position which was described as "unfair" to the lessees. When that effect or potential effect is considered with the nature of the duties imposed on an MLC and the gravity of the conduct of an MLC intervening to pursue their own or their family's financial interests then I consider it open to a jury to find this element of the offence satisfied.
It follows that I reject this aspect of the application.

Jurisdiction

Mr Obeid contends that this Court does not have jurisdiction to try him for two reasons. First he contends that the subject matter of the charge against him, namely misconduct as an MLC in the course of discharging his functions, is a subject matter that falls within the exclusive jurisdiction of the Legislative Council to adjudicate upon. Second he contends the maintenance of this prosecution violates s 9 of the Bill of Rights. I will address these arguments separately and deal with the latter argument first, although they are related as both s 9 of the Bill of Rights and the exclusive cognisance of the House of Commons operate within the same sphere (Egan at [69] per McHugh J; Regina v Chaytor [2011] 1 AC 684 at [102] per Lord Rodger; "Chaytor"). Parliamentary privilege
On behalf of Mr Obeid it was contended that the prosecution impeaches or questions the freedom of debate and proceedings in the Legislative Council because the communications between himself and Mr Dunn the subject of the indictment are related closely to the performance of his duties as a MLC. It is said that such communications come within the scope of "proceedings in parliament" within the meaning of s 9 of the Bill of Rights.
Section 9 of the Bill of Rights (1 Wm & Mary Sess 2 c 2) continues to apply in New South Wales by the operation of s 6 of the Imperial Acts Application Act 1969 (NSW) (Egan at [22]). It provides: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament."
The submission made on behalf of Mr Obeid raises as a threshold issue the meaning of "proceedings in Parliament". Such proceedings extend to speeches and debates in either House of Parliament while they are sitting as well as proceedings of Parliamentary Committees (Toomey, The Constitution of New South Wales (Federation Press, 1st Ed, 2004) at 496). At the Commonwealth level "parliamentary proceedings" has been defined by s 16(2) of the Parliamentary Privileges Act 1987 (Cth) as meaning: "… all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a Committee, and, without limiting the generality of the foregoing, includes: (a) the giving of evidence before a House or a committee, and evidence so given; (b) the presentation or submission of a document to a House or a committee; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published." (emphasis added)
In Rowley v O'Chee [2000] 1 Qd R 207 documents collated by a Senator for the purposes of transacting business in the Senate were found to fall within s 16(2) and were exempt from discovery. However in Szwarcbord v Gallop [2002] ACTSC 28; 167 FLR 262 at [21] Crispin J did not accept that a copy of a report was prepared for the purpose of "transacting the business of parliament". His Honour stated (at [22]): "Privilege may be attracted by the retention of a document for a relevant purpose, but that is because the retention for such a purpose is itself an act forming part of the proceedings. The privilege thereby created does not attach to the document and any copies for all purposes. It applies only to the words used and acts done in the course of, or for purposes of or incidental to, the transaction of business of the Assembly including the retention of a document for a purpose of that kind." (emphasis added)
However unlike the Commonwealth, no State legislation has been enacted expanding on the meaning of "proceedings in Parliament" for the purposes of s 9 of the Bill of Rights in its application to the Legislative Assembly and the Legislative Council. In Grassby v R (1991) 55 A Crim R 419 the provision was held not to extend any protection to a person who gave documents to an MLA intending they would be raised in the Legislative Assembly.
In Chaytor the Supreme Court rejected a challenge to the prosecution of a member of parliament for false accounting under the Theft Act 1968 (UK). The member was accused of submitting fraudulent parliamentary expense claims. It was contended that a prosecution involving an inquiry into the members expense allowance claim would infringe s 9 of the Bill of Rights. Lord Phillips held that the principal matter to which s 9 is directed is "freedom of speech and debate in the Houses of Parliament and in parliamentary committees" and that "in considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament" (at [47]). Lord Phillips found that submitting claims for allowances and expenses "does not form part of, nor is it incidental to, the core of essential business of Parliament, which consists of collective deliberation and decision making" (at [62]). Lord Rodger considered that s 9 did not apply to "any matter for which Parliament cannot validly claim the privilege of exclusive cognisance" (at [102]), a topic addressed next, and found (at [122]) that "there is nothing in the allegations against the appellants which relates in any way to the legislative or deliberative processes of the Houses of Commons or of its members, however widely construed". (The remainder of their Lordships agreed with Lord Phillips and Lord Rodger).
The scope of the protection offered by s 9 of the Bill of Rights discussed in Chaytor is consistent with s 16(2) of the Parliamentary Privileges Act 1987 (Cth). All of the above cases point to the misconduct alleged against Mr Obeid being outside s 9 of the Bill of Rights. There is nothing to suggest that his conduct in making representations to Mr Dunn was undertaken in the course of or incidental to any business in Parliament or one of its committees or otherwise related to the "legislative or deliberative processes of Parliament".
In his submissions, Mr Reynolds SC placed great emphasis on the Crown's reliance on the proposition that the communication by an MLC with a senior member of the Executive is "necessarily incidental to" the powers, duties and responsibilities "exercisable [by that MLC] in Parliament" (Accused's written submissions filed 18 September 2015 at [5]). I have addressed that contention above and broadly accepted it. Mr Reynolds SC then noted that the Crown's case is that the relevant communications between Mr Obeid "related to government policy" namely its approach to renewing the leases in question. Again that can be accepted. Mr Reynolds SC then submitted that (Accused submissions dated 18 September 2015 at [5(e)]): "If a communication between an MLC and a senior member of the Executive were not subject to the privilege under article 9, then that could adversely impact the ability of MLCs to perform their parliamentary role of scrutinising the conduct of the Executive."
Mr Reynolds SC ultimately submitted that (Accused submissions dated 18 September 2015 at [7]): "Because article 9 applies to communications between an MLC and a public servant in relation to government policy, the effect of that article is to preclude 'impeachment' or 'questioning' of such communications." (emphasis added)
It is at this point that the argument breaks down. It elides the distinction between the function of an MLC in communicating with the Executive and its employees on the one hand and whether a particular communication had the requisite nexus with proceedings in Parliament on the other. It can be accepted that some communications between an MLC and a senior member of the Executive are covered by s 9 of the Bill of Rights. The obvious examples are communications that relate to the content of a parliamentary speech or the formulation of a parliamentary question. However not all such communications are covered by s 9. In each of the cases discussed above the question of whether any of the relevant acts or communications were protected by s 9 was determined by considering the particular act or communication in question. Unless the particular act or communication is considered it is not possible to "consider the nature of the connection" between that act or communication and parliamentary proceedings and its "likely … impact … on the core … business of Parliament" (Chaytor at [47]).
In this case the relevant action is not communicating with the executive generally but communicating with Mr Dunn about the renewal of the leases in particular. There is nothing to suggest that particular communication had any connection to Parliamentary proceedings much less that denying it privilege was likely to impact adversely on the core business of Parliament. This conclusion is consistent with the judgment in Greenway (see [53]). In Greenway Buckley LJ concluded that the prosecution of a member of the House of Commons for accepting a bribe to use their influence to support an application for citizenship was not affected by s 9 of the Bill of Rights. Proof of the offence "owe[d] nothing to any speech, debate or proceedings in Parliament" ([1998] PL 356 at 362). His Lordship contrasted this with Ex p Wason (1869) L R 4 QB 573 in which it was held that a conspiracy to make false statements in the House of Lords could not be the subject of civil or criminal proceedings ([1998] PL 356 at 362).
It follows that I do not accept that s 9 of the Bill of Rights is applicable to the subject matter of these proceedings. This conclusion renders it unnecessary to consider whether any aspect of the proceedings involves an impeachment or questioning for the purposes of s 9 (see R v Murphy (1986) 5 NSWLR 18). Parliament's Exclusive Jurisdiction
Mr Reynolds SC submitted that the Legislative Council has exclusive jurisdiction to determine if Mr Obeid has misconducted himself in his capacity as an MLC in respect of his parliamentary duties. In oral submissions Mr Reynolds contrasted that position with the undoubted jurisdiction of the courts to entertain prosecutions of parliamentarians for "ordinary crimes". Mr Reynolds SC submitted that, as the prosecution asserts that the alleged misconduct of Mr Obeid relates to the performance by him of his duties as an MLC, it follows that the Legislative Council possesses exclusive jurisdiction to sanction Mr Obeid in respect of his alleged misconduct.
These contentions are incorrect in two significant respects. First they overstate the extent of the exclusive jurisdiction of the House of Commons. That jurisdiction does not extend to deal with malfeasance of the kind alleged to have been committed by Mr Obeid which was outside the confines of parliamentary proceedings. Second these contentions implicitly overstate the extent of the powers and privileges of the Legislative Council. They are significantly less than the House of Commons. They are limited by what is reasonably necessary to protect its proceedings and its dignity and do not extend to the taking of punitive action against a past or present member such as Mr Obeid.
In relation to the first point, the scope of the exclusive jurisdiction of the House of Commons was discussed by McHugh J in Egan at [65] to [70]. His Honour commenced with the principle that it was a matter for the Courts to finally determine the existence and scope of the powers, privileges and immunities of the House of Commons but the manner of their exercise was a matter exclusively for Parliament (Egan at [65] to [67]). Next his Honour referred (at [67] to [68]) to Bradlaugh v Gossett (1884) 12 QBD 271 ("Bradlaugh") in which the Queens Bench Division refused to examine the lawfulness of a resolution restraining a member of the House of Commons from taking an oath that appeared to be prescribed by law. In Bradlaugh Lord Coleridge CJ stated (at 275): "What is said or done within the walls of Parliament cannot be inquired into in a court of law. ... The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive."
Stephen J stated (at 286) that: "Some of these rights are to be exercised out of parliament, others within the walls of the House of Commons. Those which are to be exercised out of Parliament are under the protection of this Court…"
To the extent that Stephen J accepted that matters "within the walls of the House of Commons" were a matter for Parliament, that acceptance was qualified by his Lordship's earlier statement that (at 283): "The only force which comes in question in this case is, such force as any private man might employ to prevent a trespass on his own land. I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice." (emphasis added)
As an example of this in Attorney-General v Macpherson (1869-71) LR 3 PC 268 the Privy Council overruled a demurrer to a charge of assault said to have occurred in ante-chamber to the New South Wales Legislative Assembly (see Criminal Justice Commission v Nationwide News Pty Ltd [1996] 2 Qd R 444 at 456 per Pincus JA).
In Egan at [69] McHugh J concluded: "In neither Stockdale nor Bradlaugh did the judges suggest that it was Art 9 of the Bill of Rights that precluded them from exercising jurisdiction. Rather, their reasoning indicates that by parliamentary law - which as customary law is part of the common law - matters affecting the internal administration of the House of Commons are outside the jurisdiction of the common law courts. The Bill of Rights which is in force in New South Wales … merely confirms the common law." (emphasis added)
As noted Bradlaugh suggests an exception to this principle concerning an "ordinary crime" committed in the House of Commons.
The extent of matters that are within the exclusive cognisance of Parliament was addressed in Chaytor. Lord Phillips addressed the exclusive jurisdiction of each House of Parliament in respect of the application of laws of general application, such as liquor licensing, tort and contract (at [63] to [78]) and then the application of "criminal law within the precincts of Parliament" (at [80]). Consistent with the passage from Bradlaugh set out at [139], his Lordship referred to cases in which "ordinary crimes" were committed within the precincts of Parliament including murder (of the prime minister in 1812) (at [80]). Two matters should be noted about this analysis. First his Lordship considered that the acquiescence or agreement of the House of Commons to the application of the criminal law to its precincts as discerned from legislation and a review of historical material was of significance in determining the scope of its exclusive jurisdiction (at [83] to [89]). No material concerning any such agreement or acquiescence was placed before this Court. Second his Lordship's analysis of Parliament's exclusive cognisance assumed that it did not extend beyond that stated by McHugh J in Egan at [69], namely "matters affecting the internal administration of the House of Commons". The question that Lord Phillips addressed in Chaytor was the extent to which the House of Commons had permitted an ingress into that area of exclusive jurisdiction. Leaving that aside, his Lordship concluded that the Court would not be prevented from exercising jurisdiction to determine the false accounting charges "even if the House were not co-operating with the prosecuting authorities" (Chaytor at [92]).
In Chaytor Lord Rodger referred to the passage from Bradlaugh cited above and repeatedly stated that if the crimes charged against the Member were "ordinary crimes" then, "even assuming that they are alleged to have been committed entirely within the precincts of the House" (at [118]) the Member could still be prosecuted in the Courts (at [117] to [118]) although they could also be dealt with as a contempt of Parliament in its "overlapping" and "not exclusive" jurisdiction (at [108] and [121]). Hence his Lordship asked whether there was "any aspect of the offences which takes them out of the category of 'ordinary crime' and into the narrower category of conduct in respect of which the House would claim a privilege of exclusive cognisance" (at [118]). Even though the system for claiming and paying Parliamentary allowances rested on resolutions of the House of Commons and was supervised by the Members Estimate Committee (at [120], Lord Phillips concluded that the allegations of false accounting did not relate "in any way to the legislative or deliberative processes of the House of Commons or of its members, however widely construed" (at [122]). Instead the allowance system merely provided the occasion for the commission of an "ordinary crime" of false accounting (at [122]).
In the course of his oral submissions Mr Reynolds SC submitted the indictment did not charge Mr Obeid with an "ordinary crime" in the sense discussed in these authorities. In his written submissions (filed 18 September 2015 at [16]), he contended that "an 'ordinary crime' refers to conduct which is criminal irrespective of whether it is committed by a member of parliament, and irrespective of whether the conduct had any connection with anything done by a parliamentarian in his capacity as such". In oral submissions, he emphasised that the crime of wilful misconduct in public office is suis generis to public officials, that the charge in this case concerns the discharge of a function incidental to the office of an MLC and the subject matter of the charge namely "misconduct" is quintessentially a matter appropriate for the Legislative Council to determine.
Assuming these contentions correctly characterise the crime alleged against Mr Obeid, that characterisation alone is not sufficient to bring the matter within the exclusive cognisance of the House of Commons because the offence as charged does not affect "the internal administration of the House of Commons" (Egan at [69]), did not occur "within the precincts of Parliament" (Chaytor at [80]) and did not relate "in any way to the legislative or deliberative processes of the House of Commons or of its members" (Chaytor at [122]). No case has determined that a crime that is not "ordinary" but is committed by a Parliamentarian outside the precincts of the House of Commons is nevertheless within the exclusive cognisance of that body. Greenway decided the opposite. If the proposition were correct then, subject to considering the next point, the proceedings in Boston were misconceived and Parliamentarians would have acquired a significant immunity. For this reason the contention that the charge falls within the exclusive cognisance of the Legislative Council must be rejected.
In relation to the second point stated in [136], in Egan at [29] Gaudron, Gummow and Hayne JJ observed that : "The Constitution Act contains no equivalent of s 49 of the Commonwealth Constitution. The New South Wales Parliament, unlike some other colonial or State legislatures …, has never enacted general legislation seeking to identify its powers, privileges and immunities with those of the House of Commons in the United Kingdom. Its powers and privileges, so far as presently relevant, are therefore to be found otherwise than by reference to statute."
Leaving aside the possible consequences of the passing of the Australia Act 1986 (Cth), a matter that was not argued in this matter (see Egan at [33]), the consequence is that each of the Legislative Council and the Legislative Assembly possesses a diminished level of powers, privileges and immunities in comparison with those enjoyed by the House of Commons (and the Federal Parliament).
In Barton v Taylor (1886) 11 App Cas 197 ("Barton") the Privy Council held that the Legislative Assembly does not possess powers to protect itself against obstruction, interruption or disturbance of its proceedings by the misconduct of its members unless they are reasonably necessary, adding that such powers "[f]or these purposes, protective and self-defensive powers only, and not punitive, are necessary" (at 203). Barton was followed in Christie v Perry [1912] HCA 12; 13 CLR 592 ("Christie") which repeated the emphasis on the powers being protective and not punitive. Although that aspect was queried in Egan (at [184] per Callinan J) both Barton and Christie are binding on this Court.
The cases have discussed the extent and limits of the Parliament's power in a manner consistent with this protective purpose. Thus in Kielley v Carson (1842) 13 ER 225 at 234 the Privy Council held that the Legislative Assembly of Newfoundland did not have the power to arrest a person in order to adjudicate on a contempt committed outside the House (see also Fenton v Hampton (1858) 14 ER 727). In Barton the Privy Council accepted that there existed a power in the Legislative Assembly to suspend a member "guilty of obstruction or disorderly conduct during the continuance of any current sitting" (at 204 to 205). In Armstrong v Budd (1969) 71 SR (NSW) 386 the Full Court upheld the power of the Legislative Council to expel a member on account of misconduct engaged in outside the Parliament being the giving of false or unsatisfactory evidence in Court proceedings. This was said to be justified even though the power being exercised was "solely defensive - a power to preserve and safeguard the dignity and honour of the Council and the proper conduct and exercise of its duties" (at 403 per Wallace P) and "necessity stops short where punishment begins" (at 406.2 per Sugerman JA)
In Christie the High Court held that the Speaker of the Legislative Assembly of New South Wales had no authority to direct the arrest of a member who had left the chamber. Such conduct went beyond "defensive action" and its "only purpose can be to punish him" (at 228). Griffith CJ stated (at 228): "While absent from the chamber [the member] certainly could not contribute to disorder in the chamber. In my opinion the Speaker had no more authority over the plaintiff when he was outside the chamber than he had over a person who was not a member. The Speaker undoubtedly has power when any person who is outside the chamber is conducting himself in such a manner as to interfere with the orderly conduct of proceedings in the chamber to have that person removed, and for that purpose to obtain the aid of the police. But that is quite a different thing from arresting a person and bringing him into the chamber. The only object of such action is to punish him …" (emphasis added)
These decisions are determinative of the position so far as it concerns Mr Obeid. The power of the Legislative Council to take action against him was and is limited to what was reasonably necessary to protect itself against obstruction, interruption or disturbance of its proceedings or otherwise protect its dignity and honour. Its powers were defensive and not punitive.
The submissions of the parties debated whether the Legislative Council's powers were so restrictive that they could not take any action against former members such as Mr Obeid. Mr Reynolds SC's written submissions contended that it was "arguably open" to the Legislative Council to admonish or reprimand such a person or disqualify them from being re-elected as a matter necessary to preserve its integrity (Accused's submissions filed 18 September 2015 at [26]). This contention appears difficult to reconcile with the above passage and appears to stretch the role of protective powers into the role usually played by punitive powers. However it is not necessary to determine the extent of the Legislative Council's power to take action against former members. I will assume that it can.
As the above cases demonstrate, the Legislative Council cannot take punitive action such as arresting, otherwise detaining or fining such a person. Like the House of Commons, both of the houses of Federal Parliament have that power and it extends to committing a person to prison (R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; 92 CLR 157). The different nature and extent of the powers available to the Legislative Council compared to those available to the House of Commons (and the Federal Parliament) destroys the rationale for concluding that the power to deal with malfeasance by a former MLC of the kind alleged here is a matter within Parliament's exclusive cognisance. The House of Commons can punish such conduct as contempt (although in the exercise of its overlapping jurisdiction: Chaytor at [108] and [121]). The Legislative Council does not have that power. As it does not there is no reason to deny this Court's jurisdiction to exercise a punitive power in such cases.
Mr Reynolds SC also submitted that the New South Wales Parliament has the power to pass either a standing order to confer on itself the power to impose punishment or legislate in a similar manner to the Federal Parliament (Accused's submissions filed 18 September 2015 at [18]). However it has not done that. The effect of its failure to do so is not to confer a form of legal immunity from prosecution for malfeasance on past or present MLCs.
The position concerning the inter-relationship between the jurisdiction of this Court and the powers and privileges of the Legislative Council is best illustrated by considering the position of a sitting member who is charged with corruption such as bribery. While that charge was pending it would be open to the Legislative Council to suspend the member (see Harnett v Crick [1908] AC 470). Its action in doing so would not be reviewable by this Court. Such action would represent an exercise of the overlapping jurisdiction referred to by Lord Phillips in Chaytor at [121] except that, unlike the House of Commons, the Legislative Council could not take action that could be described as "punitive" and could not punish the member for contempt.
Finally I note that one matter debated in the proceedings concerned the significance, if any, of the fact that the President of the Legislative Council had chosen not to intervene and make submissions on the extent or otherwise of that Chamber's powers, privileges and immunities. When the proceedings adjourned on 10 September 2015 I varied the existing non-publication order in force to allow either party to advise the President of the Legislative Council of the matters raised on this topic. The Court has not been advised whether that has occurred. Given that and the late stage at which this point was raised I have not attached any significance to this matter.
It follows that I do not accept that the subject matter of these proceedings is within the exclusive cognisance of the Legislative Council of New South Wales.
I reject the challenge to this Court's jurisdiction to hear this matter.

Orders

It follows that the demurrer will be overruled and that Mr Obeid will have to "answer over" to the charge against him (Criminal Procedure Act, s 18). Accordingly the Court orders that: 1. The Accused's demurrer be overruled. 2. The Accused answer over to the charge against him. 3. The Accused's notice of motion filed 9 September 2015 be otherwise dismissed.

Amendments 07 April 2016 - Additional sentence at end of "Publication Restriction" field. 28 June 2016 - Restriction lifted. 28 June 2016 - Restriction lifted. 28 June 2016 - Restriction lifted 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: 11 February 2020

94 CLR 395 - Grassby v R (1991) 55 A Crim R 419 - Harnett v Crick [1908] AC 470 - Henly v The Mayor and Burgesses of Lyme (1828) 5 Bing 91 - HKSAR v Wong Lin Kay (2012) 15 HKCFAR 185 - Horne v Barber [1920] HCA 33; 27 CLR 494 - Kearney, Ex parte [1917] NSWStRp 68; 17 SR (NSW) 578 - Kennon v Spry [2008] HCA 56; 238 CLR 366 - Kielley v Carson (1842) 13 ER 225 - Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 - Leerdam & Anor v Noori & Ors [2009] NSWCA 90 - Northern Territory v Mengel (1995) 187 CLR 307 - Pilmer v Duke Group Ltd [2001] HCA 31; 207 CLR 165 - Question of Law Reserved (No 2) of 1996 (1996) 67 SASR 63 - R v Bembridge (1783) 99 ER 679 - R v Boston [1923] HCA 59; 33 CLR 386 - R v Boulanger [2006] 2 SCR 49 - R v Chapman & Ors; R v Sabey [2015] 2 Cr App R 10 - Regina v Chaytor [2011] 1 AC 684 - R v Glynn (1994) 33 NSWLR 139 - R v Greenway & Others [1998] PL 356 - R v McCann [1998] 2 Qd R 56; 95 A Crim R 308 - R v Murphy (1986) 5 NSWLR 18 - R v Quach [2010] VSCA 106; 201 A Crim R 522 - R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; 92 CLR 157 - R v White (1875) 13 Sup Ct Rep (NSW) (L) 322 - R v White [1998] PL 356 at 360 - R v Whitaker [1914] 3 KB 1283 - Rao & Others v State of India [1999] 3 LRC 297 - Regina v Chaytor [2011] 1 AC 684 - Ridgeway v R [1995] HCA 66; 184 CLR 19 - Rowley v O'Chee [2000] 1 Qd R 207 - Sanders v Snell [1998] HCA 64; 196 CLR 329 - Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 - Shum Kwok Sher v HKSAR [2002] 5 HKCFAR 381 - Sneddon v State of New South Wales [2012] NSWCA 351 - Szwarcbord v Gallop [2002] ACTSC 28; 167 FLR 262 - Wilkinson v Osborne [1915] HCA 92; 21 CLR 89 - Ex p Wason (1869) L R 4 QB 573 Texts Cited: - Toomey, The Constitution of New South Wales (Federation Press, 1st Ed, 2004) - Meagher, Gummow & Lehane Equity Doctrine & Remedies, 4th Ed, 2002, Butterworths - Dr Paul Finn, Official Misconduct, (1978) 2 Crim LJ 307 - Tina Cockburn & Paul Thomas, Personal liability of public officers in the tort of misfeasance in public office (2001) 9 TLJ 80 - P.D. Finn, Public Officers: Some Personal Liabilities, (1977) 51 ALJ 313 Category: Procedural and other rulings Parties: Regina - Applicant Edward Moses Obeid - Respondent Representation: Counsel: P. Neil SC, Ms S. Beckett - Crown G. Reynolds SC, S.M. Nixon - Respondent

(1978) 2 Crim LJ 307

R v Obeid

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