EX TemporE Judgment (revised from Transcript)
Application to discharge jury; see transcript p 575
Today was due to be the ninth day of the trial. The Crown was in the process of leading evidence in its case. It was anticipated that it would close its case shortly. Before the jury were brought in Senior Counsel for the accused, Mr Hughes SC, advised the Court that he would be applying to discharge the jury. The Crown Prosecutor also indicated that the Crown was seeking leave to recall two witnesses in its case, namely an ICAC investigator, Mr Berry, and Mr Paul Maroon.
The jury were dismissed for the day and the Court heard argument on those applications. For the reasons that follow I will order the discharge of the jury when the matter resumes tomorrow. That conclusion renders otiose the Crown's application.
[2]
Background
Both applications arise out of evidence given by a Crown witness, Paul Maroon, on the eighth day of the trial. The form of the indictment and an outline of the Crown case against the accused are set out in the judgment in Obeid v Crown (No 2) (2015) NSWSC 1380 ("Obeid No 2") at [14] to [23], which I will not repeat. The broad effect of Mr Maroon's evidence is that, at some point after the accused allegedly made the representations referred to in the indictment to Mr Dunn, he, that is Mr Maroon, took steps to set aside an amount of cash from the takings of the food outlets at Circular Quay for delivery to the accused.
Mr Maroon gave evidence during a private session as part of an inquiry conducted by the Independent Commission Against Corruption (ICAC). Mr Maroon was not called in its public session and no opportunity to cross-examine Mr Maroon was proffered to the accused during ICAC's inquiry.
After this trial commenced Mr Hughes SC indicated that Mr Maroon's evidence was objected to. He also sought that his evidence be elicited on a voir dire to clarify exactly what his evidence at trial would be. The voir dire took place on the fifth day of the trial, 17 February 2016, in the absence of the jury. After Mr Maroon gave evidence on the voir dire the Court heard argument concerning Mr Hughes' objection. On 18 February 2016 the Court gave reasons allowing the Crown to adduce Mr Maroon's evidence (R v Obeid (No 6) (2015) NSWSC 2016) ("Obeid No 6").
The evidence given by Mr Maroon during that voir dire is summarised in Obeid No 6 at [8] to [12]. It is noteworthy that during the voir dire Mr Maroon was unable to identify a specific date or even month when he commenced allocating an amount of cash which he understood would be delivered to the accused. Instead, by reference to an email exchange with the accused's daughter, Gemma Obeid, that occurred on or about 18 March 2008, the Crown contended that Mr Maroon's evidence established the payments commenced from at least that time.
Three matters should be noted about Mr Maroon's evidence on the voir dire and the judgment in Obeid No 6. First, beyond the email that I have just referred to, it was not suggested that there was any material capable of corroborating Mr Maroon's evidence about setting aside an amount of cash for delivery to the accused. Mr Maroon stated that Damian Obeid instructed him to set that amount of cash aside, but Damian Obeid denied any knowledge of there being an amount of cash allocated for delivery to anyone other than his mother. Further, on this application the accused's solicitor, Mr Breene, stated or at least implied that it was proposed that at some point during the defence case Gemma Obeid would give evidence rebutting the inference that the payments referred to in the email exchange on 18 March 2008 were payments of the kind suggested by Mr Maroon.
Second, one matter pointed to by Mr Hughes SC in originally opposing the receipt of evidence from Mr Maroon was the lapse in time between the representations referred to in the indictment and the making of the payments. Notwithstanding that contention I allowed the evidence to be led (see Obeid No 6 at [20]), but it was a point that was not without substance. In effect, the closer the gap between the timing of the making of these payments and the alleged timing of the making of the representations, the stronger the case for the Crown. Nevertheless, and notwithstanding what then appeared to be a gap of approximately six months between the making of the representations and the allocation by Mr Maroon of cash for delivery to the accused, I concluded in Obeid No 6 that his evidence had significant probative value such that it outweighed any danger of unfair prejudice.
Further, I identified the issues to which the evidence related as follows (Obeid No 6 at [21]):
"The extent and the depth of the financial connection between CQR's businesses and the accused and his family bears upon a number of issues of great significance to the trial, including the reasonableness of any expectation that the accused would disclose his interest or connection to the leases before making any representations about their renewal or relevant to their renewal to Mr Dunn, whether the making of any such representation without making any such disclosure amounted to misconduct, whether such misconduct was wilful and whether it merited criminal punishment."
Third, even at the voir dire stage, it was clear that the accused was strongly contesting any suggestion that he received any cash payment from the takings of the food outlets.
[3]
Mr Maroon's Evidence Before the Jury
As stated, Mr Maroon gave evidence before the jury on 22 February 2016. In his evidence in chief he stated for the first time that cash payments intended for the accused commenced in November 2007. He also stated for the first time that the amount initially paid to the accused for some two to three months was $750 per week but then increased to $1,000 per week.
In cross-examination, Mr Hughes SC took up with Mr Maroon the fact that he had never previously stated that the first time payments had been made was in November 2007. Almost unsolicited, Mr Maroon explained that on the previous Friday, that is after the voir dire, he had recovered some data from Excel spreadsheets which indicated to him the payments were made as early as November 2007. He also stated that the entries on that spreadsheet supported his statement that the payments were initially for an amount of $750 and then increased to $1,000 at a later time. Mr Maroon stated that during its investigation, ICAC seized a hard drive and copied it. He said that ICAC had returned the hard drive but that it had been damaged. He said that the previous Friday he used some software to retrieve the data. Otherwise, consistent with what I stated, it should be noted that Mr Hughes SC strongly attacked Mr Maroon's credit.
At the conclusion of his cross-examination but before his re-examination, Mr Maroon was excused from the witness box. He was requested to obtain copies of the spreadsheets that he said he accessed. Later in the day spreadsheets were provided to the parties. As I understand it the solicitors for the accused have only had time to undertake a brief review of the spreadsheets provided by Mr Maroon. Although it is not entirely clear, it appears that there are some spreadsheets that contain references to payments in November 2007 but it is not clear whether they provide complete support for Mr Maroon's evidence concerning the payments said to be made for the benefit of the accused.
[4]
ICAC material
In the meantime, an ICAC officer, that is Mr Berry, who was also a Crown witness, spoke to Mr Maroon shortly after he gave evidence. Mr Berry obtained the file names of the spreadsheets that Mr Maroon referred to. Mr Berry performed a search of the copy of the hard drive that had been retained by ICAC. His search revealed a number of spreadsheets with names similar to those nominated by Mr Maroon. The spreadsheets appear to commence on 17 July 2007 and continue up until at least July 2008 and perhaps into 2009. In the time available to him, Mr Berry printed screen-shots of some of these spreadsheets. They include a spreadsheet entitled "Sunday 09/09/07" which includes a reference to what appears to be a payment against the description "mum and dad".
As I understand it the Crown wishes to contend that this is evidence of a cash payment made for the benefit of the accused in September 2007. It follows from what I have said earlier that that evidence is potentially of real significance to the Crown case, hence the Crown applied to lead the additional material located by Mr Berry and to re-call Mr Maroon.
At this point I should note certain other matters concerning Mr Berry, ICAC and the Crown. In doing so I indicate that it has not been necessary or possible to conduct any detailed investigation as to ICAC's knowledge of the additional material. Mr Berry stated that although he was aware that the hard drive had been copied and held by ICAC, he was clear that he was not aware that they contained any spreadsheets of the kind referred to by Mr Maroon. There was no challenge to that aspect of his evidence.
Mr Berry stated that copies of the hard drive were not provided to the Director of Public Prosecutions in preparation for the trial. I infer that was because it was not understood within ICAC that there was anything on those drives that was of any relevance to the trial. It was clear from Mr Berry's evidence that, if the trial were to proceed and the Crown was to be permitted to rely upon material which is located on the copies of the hard drives retained by ICAC, that would entail a delay of at least a number of days so as to enable the Crown to review the spreadsheets, collate them, print them in a form necessary to provide to the jury and provide the defence with copies. That delay of a number of days would not take into account any necessary time that would be required for the defence to perform even the most basic checking of that material.
[5]
Defence difficulties
The course of the trial that I have outlined indicates that the events that have unfolded have occasioned prejudice to the accused. As stated, Mr Breene gave evidence that he anticipated that there would be evidence from Gemma Obeid which would deal with what the defence thought was the only piece of evidence corroborating Mr Maroon's account, namely the email exchange on 18 March 2008. Through no fault of the defence, and on the material before me through no fault of the Crown, during the cross-examination of Mr Maroon in front of the jury, the defence was confronted for the first time with information as to the existence of a potential body of material that is either capable of corroborating, or perhaps undermining, Mr Maroon's account of what appears to be a critical matter.
Further, the inquiries touched off by Mr Maroon's revelation have revealed evidence that is potentially damaging for the accused in that it appears to be capable of supporting a finding that payments commenced almost immediately after the making of the representations to Mr Dunn as alleged in the indictment.
Mr Breene gave evidence of a series of steps that he would have undertaken had he been aware of the existence of the spreadsheets provided by Mr Maroon and which he now proposes to undertake in relation to that material as well as the material to be provided by Mr Berry. I will not outline all those steps in detail. I am not necessarily persuaded that all of them are required to be undertaken for the accused to receive a fair trial. However, it suffices to state that the defence is entitled to at least a reasonable opportunity to review that material and that cannot be done within the confines of this trial.
I considered the possibility of simply preventing the Crown from relying on this material and allowing the trial to proceed. However, if that were to occur it would simply mean that both parties were denied a proper opportunity to investigate and consider the material. It would leave them in the position of not knowing what the jury might make of Mr Maroon's assertion that there existed spreadsheets that supported his recollection.
In the end result the duty of a trial judge is to ensure a fair, albeit not perfect, trial. That duty is paramount. In my view and without attributing fault to any party, I am affirmatively satisfied that the continuation of the trial in light of Mr Maroon's evidence would be unfair. Accordingly, when the jury return tomorrow morning they will be discharged.
[6]
Amendments
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