201 A Crim R 522
Wilkinson v Osborne [2015] HCA 92
D Hume (Offender)
Source
Original judgment source is linked above.
Catchwords
201 A Crim R 522
Wilkinson v Osborne [2015] HCA 92D Hume (Offender)
Judgment (3 paragraphs)
[1]
Solicitors:
Director of Public Prosecutions (Crown)
Breene & Breene (Offender)
File Number(s): 2015/53925
[2]
EX TEMPORE Judgment (REVISED FROM TRANSCRIPT)
HIS HONOUR: This morning I delivered sentence in these proceedings and published reasons accordingly: R v Obeid (No 12) [2016] NSWSC 1815 ("Obeid No 12"). This judgment should be read together with Obeid No 12.
I sentenced the applicant for bail, Edward Moses Obeid, to a term of imprisonment for five years with a non-parole period of three years.
Immediately on the publication of those reasons, an application was made to me for bail pending the hearing and determination of Mr Obeid's appeal to the Court of Criminal Appeal against his conviction. I have been advised that a notice of intention to appeal has already been filed.
I should add that I was on notice, from yesterday, of the possibility that this application might be made. I was offered the opportunity to review the written submissions in support of the application. Given that it was inevitable that they would traverse matters that occurred at the trial and that my sentencing judgment was also addressing, I considered it was not appropriate to consider them at that stage.
During the course of argument Senior Counsel for Mr Obeid, Mr Reynolds SC, foreshadowed that his client's appeal would extend to an application for leave to appeal against sentence. In a way that I will outline, he referred to that in addressing the considerations relevant to the application.
Section 62 of the Bail Act 2013 (NSW) enables the court to hear a bail application for a sentenced offender if the court has convicted the person of an offence, proceedings on an appeal against conviction are pending in another court, and the person has not yet made his or her first appearance before the court in the appeal proceedings. As indicated, Mr Obeid has been convicted, he has proceedings on an appeal, at least against his conviction, pending and he has not yet made any appearance before the Court of Criminal Appeal.
Further, s 22 of the Bail Act provides that, despite anything to the contrary, a court is not to grant bail in respect of an offence for which an appeal is pending in the Court of Criminal Appeal against a conviction on indictment unless "special or exceptional circumstances exist" to justify that bail decision.
Section 22 was addressed by the Court of Criminal Appeal in El-Hilli and Melville v R (2015) NSWCCA 146 ("El-Hilli"). The Court found there was a two stage process in the determination of an application for bail pending appeal. The first stage is whether special or exceptional circumstances have been demonstrated under s 22 and, if so, the second is that the Court must then consider the various factors affecting that bail application referred to in s 18 (El-Hilli at [13]). It was accepted that the same factors may operate at both stages. El-Hilli, and all the cases that preceded it, demonstrates that the two most common features that frequently arise for consideration on such applications are the merits of the appeal and the possibility that the applicant would serve their sentence, or a substantial part of it, before the appeal was decided (El-Hilli at [29]). In particular, in El-Hilli at [26], Hamill J hinted at the interaction between those two factors. Specifically, where the applicant relies exclusively on the strength of the appeal, the threshold that they must establish in terms of the merit of their appeal is higher than that which might arise where a variety of factors including a possible expiry of their sentence are relied upon.
The detailed written submissions put in support of the application, which were accompanied by the oral submissions, identify twelve factors said to constitute special or exceptional circumstances for the purposes of s 22.
The first concerns Mr Obeid's prospects of successfully appealing his conviction. I will return to address this.
The second and third concern Mr Obeid's health and age. They were addressed in Obeid No 12 at [105] to [121] and I will not repeat that discussion. Overall, while I accept that Mr Obeid has a number of health conditions, I concluded in Obeid No 12 that an "adequate" standard of care would be available to him in custody. I did not accept that his health and other conditions were a significant mitigating factor in sentence, although I did accept that those matters constituted "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Having regard to that discussion these matters do not advance Mr Obeid's case very far in establishing special or exceptional circumstances under s 22 of the Bail Act.
The fourth matter said to constitute special or exceptional circumstances when considered with other matters is the fact that Mr Obeid is likely to appeal against his sentence. This is to be considered with the fifth matter, which contends that it is unlikely that his appeal will be heard for some months. Allowing for the Court of Criminal Appeal to reserve before it delivers judgment, it is said that Mr Obeid may serve all or a substantial portion of his custodial sentence before the resolution of his appeal.
Mr Obeid's legal team is well resourced. They have had the summing-up from the trial for many months. It is clear that a substantial amount of work has been done preparing Mr Obeid's appeal. In fact, it is difficult to see what further work needs to be done. Based upon my enquiries, I consider it likely that Mr Obeid may be able to obtain a hearing date for of his conviction appeal sometime between March and May 2017.
Clearly, there is a relatively little likelihood of the custodial sentence that I have imposed expiring any time before judgment is delivered on that appeal.
However, Mr Reynolds SC submitted that it was clear from the sentencing judgment that there is a very significant range of penalties open to be imposed for offences of this kind and that it is possible a revised sentence delivered on appeal might be of such length that Mr Obeid may have served it by the time any judgment is delivered.
I will not engage in speculation about the other sentences that I might have imposed. There is only one sentence that I imposed. The fact that it might be found by the Court of Criminal Appeal that there is a significant range of sentences open to me, as the sentence judge, really cuts both ways. On the one hand, it creates a much more difficult hurdle for Mr Obeid in establishing a relevant form of error in attacking the sentence. On the other hand, if he does establish error he has some scope of obtaining a favourable resentence from the Court of Criminal Appeal. Nevertheless, my firm conclusion is that this is a matter where it cannot be said there is any realistic prospect of Mr Obeid having served a substantial portion of the appropriate non-custodial sentence by the time he receives judgment on appeal. It would follow from what I have stated earlier that this means that his task of pointing to his likely success of his appeal against conviction is that much harder.
The sixth factor identified by Mr Obeid was that he was granted bail pending his trial and then before sentence. This interacts with the tenth and eleventh factors, which concern his risk of absconding and his general circumstances, when considered against the criteria in s 18 of the Bail Act. There is no doubt that to this time there has been very little in the matter of bail concerns in respect of Mr Obeid. That said the position that he is now in, namely, serving a reasonably substantial custodial sentence, affects that somewhat.
This is to be considered with the eighth factor relied on by Mr Obeid, namely, the public interest. It is said that the public interest would be served by Mr Obeid serving time in prison if and when an appeal was refused but there is no public interest in the incarceration of Mr Obeid if it turned out that he had been wrongly convicted according to law.
That submission treats the jury's verdict as having some uncertain aspect which is not resolved unless and until it is confirmed by the Court of Criminal Appeal. That is, of course, completely misconceived. To the contrary, the public interest in the upholding of the sanctity of the jury's verdict sways against the grant of bail.
The seventh criterion relied on is that Mr Obeid may ultimately be acquitted and if so that acquittal will be a hollow victory. In part that will depend upon how much of his custodial sentence would otherwise remain. It otherwise takes the matter no further than a consideration of the merits of his appeal does.
The last matter is that it is said that Mr Obeid has another criminal trial pending and that incarceration will prejudice, but a grant of bail will assist in, his preparation for that trial. Without knowing much about that it can be accepted that it is more difficult for someone to prepare for a trial whilst in custody.
A consideration of all these matters to this point does not come anywhere close to establishing special or exceptional circumstances. Nevertheless, there remains to address a very significant matter relevant to the assessment, namely, the merits of an appeal.
In that respect a couple of matters should be noted. First, it is accepted by all on this application that this is not a forum for a mini-appeal whereby every ground is dissected in some detail. The judge who conducts the very trial in issue does not sit on appeal from themselves.
Second, as I will explain, almost all of the proposed grounds on appeal relate to matters that could have been, but were not taken up, at Mr Obeid's trial. That raises at the very outset a very significant hurdle for Mr Obeid in establishing they are sufficiently strong when taken with the other factors to constitute special or exceptional circumstances.
It is best to illustrate this with grounds 1 and 2 which were not taken up at the trial.
Ground 1 refers to the part of the summing-up to the jury at page 65.3 where the jury were directed that:
"… as a matter of law, in performing their functions Members of the Legislative Council must act only according to what they believe to be in the public interest and the interests of the electorate and must not use their position for the purpose of promoting their own pecuniary interests or those of their family or entities close to them". (emphasis in applicant's submissions)
Ground 2 refers to an earlier part of the summing-up and asserts that in that part of the summing-up an inconsistent direction was given in respect to the duty owed by Mr Obeid as a Parliamentarian.
This latter contention should be addressed first. With great respect to those who formulated it, but who were not present at the trial, it is completely misconceived. The portion of the summing-up referred to in the submissions, to ground 2 (ie, p 61) does not concern any direction of law to the jury about the duty owed by a Parliamentarian. Instead those directions concerned what the jury would need to conclude in order to be satisfied of that part of the indictment which alleged, as a matter of fact, that Mr Obeid had an "intention of securing an outcome … favourable to [CQR]".
This was explained in detail in Obeid No 12 at [47] to [50]. The jury were instructed, over the objection of the Crown and with the agreement of Senior Counsel then appearing for Mr Obeid, that to find that part of the indictment established it had to be satisfied beyond reasonable doubt that the conduct of Mr Obeid "in making the representations to Mr Dunn was undertaken with the intention of benefiting [CQR], that is for the purpose of promoting Mr Obeid's pecuniary interests or those of his family or those close to him and was not undertaken because he in any way he genuinely believed it was in the public interest or in the interests of electorate or even part of the electorate." The jury was directed that, if it was not so satisfied, Mr Obeid had to be acquitted.
As explained in R v Obeid No 12, the jury's verdict necessarily means that it was satisfied of that and, in particular, that Mr Obeid's sole motivation in speaking with Mr Dunn was to benefit CQR and through it himself or his family. That direction in the context of the trial was potentially overly favourably to Mr Obeid. Be that as it may, there is no inconsistency between that direction and the direction given in respect of his duty because the former concerned a matter of fact alleged in the indictment.
Turning then to ground 1. The submissions in support of ground 1 alleges that the form of duty that the jury was later directed of in the summing up has no source in the law.
The various cases that the Crown relied on to demonstrate the source of the duty was discussed in detail in R v Obeid (No 2) [2015] NSWSC 1380 (Obeid (No 2)). The first "part" of the statement of the duty to which the objection is taken is the suggestion that Members of the Legislative Council must act only according to what they believe is in the public interest and the interests of the electorate. One of the statements in the various authorities that corresponds to that statement is that of Isaacs and Rich JJ in R v Boston [1923] HCA 59; 33 CLR 386 at 400 ("Boston") who stated that Parliamentarians must "… act with fidelity and with a single mindedness for the welfare of the community." Acting with a "single‑mindedness" excludes acting with other motivations. The requirement to act with "fidelity" excludes being motivated by pecuniary considerations. Further, in relation to the second "part" of the statement of the duty there is that part of Boston as well as the approval given by Isaacs J in Wilkinson v Osborne [2015] HCA 92; 21 CLR 89 ("Wilkinson") at pp 98 to 99 to the statement by Lord Lyndhurst in Egerton v Brownlow [4 HLC 1 at 161] that:
"In the framing of laws it is his duty to act according to the deliberate result of his judgment and conscious, uninfluenced, as far as possible, by other considerations, and least of all by those of a pecuniary nature." (See Obeid (No 2) at [65]).
Thus, the duty that the jury was directed to was in conformity with these observations. The two aspects of the duty are really the mirror image of each other.
Further, it is to be borne in mind that the jury would have only reached this consideration of a parliamentarian's duty had they first found beyond reasonable doubt that Mr Obeid solely acted to further his own personal, or at least his family's, financial interests. Having found that, it would inexorably follow that Mr Obeid breached his duty as a parliamentarian.
A number of related submissions are set out in relation to this duty in the written submissions. Reference is made to s 14A of the Constitution Act 1902 (NSW) and the provisions for pecuniary disclosure set out in the Constitution (Disclosure by Members) Regulation 1983 (NSW). It suffices to say that no mention was ever made of those provisions at the trial nor, despite every opportunity, was any mention made of those provisions in the various interlocutory applications that preceded the trial.
Further, the only potential relevance of those provisions that I can ascertain at this point is that it is contended that their effect somehow excludes the various statement of the duties of parliamentarians enunciated in Boston, Wilkinson and Horne v Barber [1920] HCA 33; 27 CLR 494 ("Horne") discussed in Obeid (No 2). It suffices to say that nothing the Court was taken to on this application comes close to establishing some form of parliamentary intention to exclude those duties. It would be a remarkable thing if Parliament had passed a regulation which meant that, because parliamentarians must register their pecuniary interests, then they would be somehow free to lobby members of the public service to promote their own financial interests.
Finally, I should note one other matter which is repeated throughout the written submissions, namely, the assertion that there is some divergence between that part of the formulation of the duty that refers to parliamentarians acting in what they believe to be in the public interest and their acting in the interests of the electorate. In a given case there may be some fine points to be made as to whether there might be a divergence between the public interest and the interest of the electorate. However, that was certainly not this case. At no time in this case did anyone at any stage ever raise any possible consideration of a divergence between those matters. To the contrary, once the jury had found as a matter of fact that Mr Obeid acted solely to pursue his or his family's pecuniary interests then the question of whether there was some difference between the interests of the public, the interests of the electorate or a part of the electorate, was irrelevant. Instead, those phrases were used collectively in contra distinction to someone who was acting to line their own pockets or those of their family.
Proposed ground 3 refers to the failure to inform the jury that this is the first time in which the duty relied on has ever been discerned. This ground is unhelpful and argumentative. The entire point of Obeid (No 2) and to an extent the further argument on appeal (Obeid v R [2015] NSWCCA 309), was that the duty was not novel and indeed had been discussed in the three High Court authorities to which I have referred. Otherwise, I note that there was no application made at trial for any such direction.
Ground 4 submits that there was a failure to give a direction in accordance with R v Ghosh (1982) QB1 1053 ("Ghosh") at 1064 as adopted and modified in this country in R v Macleod (2003) 214 CLR 230 ("Macleod") at [37] to [38] and Peters v R (1998) 192 CLR 493 ("Peters") at [4] and [18].
Those decisions all relate to an element of an offence that refers to someone acting "dishonestly". The word "dishonestly" forms no part of the elements of this offence. In fact, the requirement that Mr Obeid's misconduct was "wilful" imposes an obligation to prove an even more strict state of mind that than required by Ghosh, Peters or Macleod (see Obeid v R (No 11) [2016] NSWSC 974), namely, that he either intentionally breached his duty or that he was aware of a possibility that he breached his duty but disregarded it.
Otherwise, the sole basis upon which it is said to be a requirement to give this direction appears to be related to the Crown's submission to the jury to the effect that Mr Obeid effectively "duped" Mr Dunn into believing that he was calling him in furtherance of his duties as a parliamentarian. Ghosh, Macleod and Peters concern elements of the offence not Crown submissions.
Ground 5 contends that there was a failure to leave a question as to the existence of a reasonable excuse and justification to the jury. This was addressed in Obeid No 12 at [35]. The requirement that the Crown prove the misconduct of a public officer was undertaken without reasonable excuse or justification is the third element of the offence identified in R v Quach [2010] VSCA 106; 201 A Crim R 522 at [46].
At the trial of Mr Obeid, his Senior Counsel expressly agreed that this element did not need to be put to the jury because, in the way the case was framed, if the jury reached a conclusion that Mr Obeid had wilfully misconducted himself that necessarily excluded the possibility that he acted with a reasonable excuse or justification.
The submissions in support of this ground state that somehow this alleged error was so fundamental that the co-operation of Senior Counsel for the accused in giving this direction should be put aside. The suggested relevant reasonable excuse that arose was said to be something that flows from the application of the disclosure regulations that I referred to earlier.
There are two problems with this. First, as I have previously explained (Obeid No 12 at [58]), it is a misconception that the Crown's case was that Mr Obeid's criminal conduct was his failure to disclose his interests. The Crown's allegation was that he took an active step to lobby Mr Dunn to further his own pecuniary interests and/or those of his family, and in doing so did not disclose his interests. Instead, the significance of his failure to disclose arose at an evidentiary level.
In particular, the failure by Mr Obeid to disclose his interests assisted so much of the Crown case that sought to demonstrate that, in calling Mr Dunn, Mr Obeid was acting in his capacity as a parliamentarian. If, for example, Mr Obeid had disclosed his interests to Mr Dunn it might have led to a different conclusion as to whether he was telephoning Mr Dunn in some private capacity or in his capacity as a MLC.
Further, the failure of Mr Obeid to disclose his interests was also relied upon by the Crown as part of its case to prove, at an evidentiary level, that Mr Obeid had the various states of mind that form part of the various elements of the offence. This is so because, simply as a matter of commonsense, for anyone in his position it would be expected that, even if he was going to take the step of lobbying Mr Dunn, he might at least make mention of the interests that he had and his family had in the leases. Thus, the fact that he did not do so was relied on by the Crown to demonstrate he had the state of mind referred to.
Second, there was no evidence capable of raising this matter as a reasonable excuse. In other words, there was no evidence from Mr Obeid or anyone else capable of raising, as a reasonable excuse, a justification, belief or an understanding on his part that, provided any interest that he had in the leases were disclosed in the parliamentary register, assuming that they were, that would be a sufficient reason not to raise them with Mr Dunn.
Ground 6 submits that there was an error in the failure to raise with the jury the disclosure regulations and the relevant Parliamentary Code of Conduct on a number of issues. I have addressed these matters by the above comments.
Ground 7 submits that there was an erroneous direction regarding the functions of the Members of the Legislative Council. They take issue with that part of the summing-up, in which I stated that:
"[a] function of an MLC is to communicate with the executive Government about matters affecting the State, by, for example, making representations, suggestions or even protesting to a Minister for the Department about their policies or practices."
That part of the direction was consistent with the various discussions and statements about the duties of a Member of Parliament referred to in Obeid (No 2), specifically the statement of Issacs J in Horne at pp 500 to 501 (see Obeid (No 2) at [67]).
One of the submissions put is that to describe an MLC's functions as including communicating with government departments was inconsistent with the Crown case which was asserted to be that parliamentarians do not communicate with departments except through the Minister. This relates to evidence given by some of the witnesses who referred to some unwritten protocol that generally members of Parliament should not contact public servants directly. The source of that protocol was unclear. There was competing evidence on that issue and the fact that a Member of Parliament did not comply with protocol and communicated with a government department directly, could not deny the fact that they were doing so in their capacity as a Member of Parliament.
Otherwise, this ground has an air of unreality about it. At the trial there was never any real issue that in contacting Mr Dunn, Mr Obeid was acting in the course of his duties as a parliamentarian. It is no doubt, for that reason, that the very experienced trial counsel who appeared on behalf of Mr Obeid made no submissions to the jury on this issue.
Ground 8 concerns an alleged error in the directions given to the jury regarding the test of "seriousness" in relation to the fourth element of the offence put to the jury. During the course of argument it was accepted that the direction that was given was consistent with Quach, a decision which itself was approved in Obeid v R [2015] NSWCCA 309. It seems that the argument which has been be mounted is that the jury had to be instructed that, to meet the threshold necessary, they had to find the misconduct had the effect of injuring the public interest. No direction to that effect was sought at the trial.
Ground 9 alleges a misstatement of part of the indictment in the summing up. It draws a distinction between that part of the indictment which refers to Mr Obeid intending to "secure an outcome" from the Maritime Authority favourable to CQR and a part of the summing-up that referred to him seeking to "benefit" CQR. At first blush this seems to be a distinction without a difference. Further, contrary to the submissions of the applicant, it was not this aspect of the direction that the Crown expressed any concern about at the trial. Instead, the direction that the Crown expressed a concern about was the passage I referred to earlier (at [29]), which effectively told the jury that it had to be satisfied beyond reasonable doubt that Mr Obeid was solely motivated to benefit himself or his family.
The last ground to which any argument was directed is that the verdict was unreasonable and cannot be supported by the evidence. I will not deal with this in great detail. The first of the three particular matters raised concern whether the jury could have drawn an inference that Mr Obeid was aware of the interest he had, as a potential beneficiary, in the trust that beneficially owned CQR, based on the matters that were summarised in the summing-up. On my understanding of the evidence, considered in its totality, it was well open to the jury to conclude that Mr Obeid was very familiar with his family's interests in the leases at Circular Quay.
The second matter is said to be whether there was proper basis in the evidence for finding that he breached the protocol to which I have referred. The short answer, so far as I am concerned, to this point, is that the breach of that protocol was in no way critical to any part of the Crown case at the trial. This is reflected in the summing-up.
The third matter is whether there was a proper basis for the jury to conclude that Mr Obeid knew that his conduct was a breach of his duty as a Parliamentarian. The argument appeared to suggest that Mr Obeid had to know the origins of the duty and, thus, so the argument went, had to have studied the three High Court judgments to which I have referred. That is not correct. What had to be shown was that Mr Obeid knew he could not use his position as a parliamentarian to further his or his family's pecuniary interests. Whether or not that should have been obvious to him is a matter that is either correct or is not. It needs no further elucidation.
Grounds 11 to 14 of the appeal seek to maintain a challenge to certain matters that were decided adversely to Mr Obeid in Obeid v R [2015] NSWCCA 309.
The end result is that having considered the grounds of appeal and accepting that it is difficult to assess these matters, I do not accept that Mr Obeid's prospects of appeal rise any higher than being reasonably open.
When that is taken into account with the other matters to which I have referred, I do not consider that Mr Obeid has established special or exceptional circumstances. Bail is refused.
For those same reasons I also refuse the application that he be granted bail pending him making a further application for release to the Court of Criminal Appeal, even if that were possible.
[3]
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Decision last updated: 11 February 2020
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Obeid
Legislation Cited (4)
Constitution (Disclosure by Members) Regulation 1983(NSW)