R v Obeid

The circumstances in which the alleged "corrupt conduct" is said to have occurred

1. The Crown Case Statement notes that on 10 May 2007 Amanda Roozendaal (the wife of Mr Eric Roozendaal, the then NSW Minister for Roads) was involved in a car accident in her 2001 model Honda CR-V vehicle. The vehicle was damaged beyond repair and the Roozendaals began searching for a replacement vehicle. The replacement vehicle sought was a new, black Honda CR-V vehicle.
2. At the time, Mr Roozendaal mentioned the accident and his search for a new vehicle to Mr Edward Obeid, who suggested that Mr Roozendaal contact his son, Moses Obeid, who was said to have industry contacts. A Mr Fitzhenry was one such industry contact who owned a panel beating business in Camperdown. Mr Fitzhenry resided next door to Moses Obeid and they were said to be close friends at the time.
3. Mr Fitzhenry told the Commission that Moses Obeid attended his office in Camperdown and asked him for assistance in finding a car, which he identified as a top of the range, black CR-V Honda. According to Mr Fitzhenry, Moses Obeid said to him that "The car was to be bought for Eric because Eric had done a few favours for dad". Mr Fitzhenry told the Commission that Moses Obeid did not tell him what the favours were that Mr Roozendale was said to have done for Mr Edward Obeid. Mr Fitzhenry then sought the assistance of an associate, Mr Goodman, to find a vehicle. I will briefly touch upon Mr Goodman's role in assisting with the procurement of a vehicle later in these reasons.
4. Mobile phone records of a phone used by Mr Fitzhenry indicate that, on 6 June 2007, his phone service contacted the mobile phone service used by Mr Roozendaal. On that day a contract for sale of a black Honda CR-V from Peter Warren Automotive (Peter Warren), with the purchaser's name noted as "Amanda Rosendale", was prepared with a purchase price of $38,800 (Contract version 1). The address of the purchaser was an address listed on the driver license of a Nata Re.
5. On 15 June 2007 Mr Fitzhenry paid Peter Warren Automotive $38,800 by cheque. The Peter Warren new vehicle delivery documents were in the name of "Amanda Roozendale". Documents on the Peter Warren file indicate that, at some stage between 6 June 2007 and 15 June 2007, Peter Warren Automotive was notified that the name of the purchaser was to be Nata Re.
6. On 18 June 2007 a second version of the contract for sale of the black Honda CR-V from Peter Warren Auto noted the purchaser's name as Nata Re. The purchase price was $38,800 (Contract version 2).
7. The payment of the $38,800 to Peter Warren Automotive involved a somewhat complex number of separate transactions. What follows is a summary of those transactions, I will address some of the transactions and arrangements in greater detail later in these reasons. On 18 June 2007, the cheque from Mr Fitzhenry to Peter Warren Auto in the sum of $38,800 was deposited into Peter Warren Automotive's bank account. On the same date, the Triulcio Family Trust withdrew $44,800, and an entity controlled by the Triulcio family, 'Challenge Property Investments' (Challenge), deposited $44,800 and drew a cheque in that amount for payment to Mr Fitzhenry. Subsequently, Mr Fitzhenry endorsed the cheque as "pay K F Goodman" and gave the cheque to Mr Goodman. Mr Goodman deposited the $44,800 cheque into his account. He then paid $41,800 by cheque to Mr Fitzhenry to reimburse Mr Fitzhenry for the outlay to Peter Warren Automotive, plus a $3000 commission for Mr Fitzhenry, and thus retained the sum of $3000 being his own commission. Banking records of Challenge Property Group record that $44,800 was put on an Obeid loan account. Also on this day, the Roozendaals obtained insurance cover for the new, black Honda CR-V. The following day, 19 June 2007, Mr Roozendaal collected the new Honda CR-V. At the time he collected the vehicle, he did not sign or obtain transfer documents, nor had he yet paid any money towards the purchase of the vehicle.
8. On 20 June 2007 the Obeids paid $10,800 to Triulcio (Challenge). Corresponding entries in both Triucio (Challenge) and Obeid loan accounts note "repay loan-moses car deal (not off balance still owe $200,000)" and were adjusted accordingly. Also on that day, Amanda Roozendaal was issued with a parking ticket for the new Honda vehicle at Surrey Hills. The following day she was involved in a minor "hit and run" accident at Surrey Hills whilst driving the new Honda vehicle.
9. On 29 June 2007 Mr Roozendaal paid $34,000 to Mr Goodman.
10. On 5 July 2007 Mr Goodman paid $34,000 to Triulcio (Challenge) and the loan account was adjusted with a note, "repayment of car purchase money", with corresponding entries on Challenge and Obeid's accounts.
11. On 7 July 2007 the registration of the Honda vehicle was transferred from Nata Re to Mr Goodman's company (KF Goodman Pty Ltd).
12. On about 26 July 2007 the Honda vehicle registration was transferred from KF Goodman Pty Ltd to Amanda Roozendaal.
13. Mr Goodman told the Commission that Mr Fitzhenry told him to complete the transfers. He said that in about late June 2007 Mr Fitzhenry told him that "they" wanted him to buy the Honda vehicle back from Nata Re for $34,000, and then to sell it on to Eric Roozendaal's wife, Amanda. Mr Goodman said that Mr Fitzhenry told him to pay the money to Challenge Property Investments Pty Ltd, and that Mr Roozendaal would put the money into his (Mr Goodman's) bank account.
14. The counts on the indictment, contrary to s 87 of the ICAC Act, are founded upon an allegation that the accused, Moses Obeid and Rocco Triulcio, gave false evidence in Compulsory Examinations and at a Public Inquiry of the ICAC. The alleged false evidence was to the effect that the Honda vehicle was initially intended for Mr Triulcio's sister, Renata Re, and that it was only after a dispute arose between Mr Triulcio and Mr Fitzhenry, regarding Mr Triulcio's Mercedes vehicle, that it was decided that the Honda vehicle would be sold to Mr Roozendaal. It is the Crown case that the evidence was knowingly false and that the Honda vehicle was always intended for Mr Roozendaal.
15. In proof of its case the Crown relies in particular on the accounts given by Mr Fitzhenry and Mr Goodman, together with a series of documents which are said to corroborate their assertions. These documents include the first contract within the Peter Warren Automotive file identifying an "Amanda Rosendale" as the purchaser; a second version of the contract for sale in the name of Nata Re, and contemporaneous handwritten notes by Mr Fitzhenry made in a diary kept by Mr Fitzhenry. There are a number of significant entries, including on a page dated 9 May 2006, which notes, "CRV Honda/black/sport/ for Road Minister". An entry on a page dated 15 May notes "0413 055[***] Eric Black 07 Reverse sensor. Auto. Amanda Roozendaal Minister for Roads [redacted address] Roozendaal". Mr Fitzhenry told the Commission that, during a phone conversation, Moses Obeid provided him with the mobile phone number for "Eric". There are a number of other entries in the notebook which Mr Fitzhenry identified to the Commission as information provided by Moses Obeid.

The account of events given by Mr Fitzhenry and Mr Goodman

1. The Crown Case Statement provides an overview of the version of events given by Mr Fitzhenry and Mr Goodman. It is necessary to refer to these accounts in some detail in so far as they relate to allegations that Moses Obeid carried out a number of separate acts in facilitating the purchase and transfer of the Honda vehicle to Mr Roozendaal.
2. The version of events, noted in the Crown Case Statement, is that Moses Obeid contacted Peter Fitzhenry, a friend and industry contact, and asked him to locate a Honda CR-V Sport motor vehicle for Eric Roozendaal. It was said that the vehicle was initially intended for Mr Roozendaal to be put in the name of his wife, Amanda Roozendaal.
3. Mr Fitzhenry enlisted Keith Goodman to assist in identifying such a vehicle and Mr Goodman ultimately located a vehicle at Peter Warren Automotive. The on-road price was $38,800, which was a discount on the retail price of $44,000. Mr Fitzhenry and Mr Goodman agreed upon a commission to be shared between them of $6000.
4. Mr Fitzhenry told Moses Obeid that a vehicle had been located and the purchase price would be $44,800. The Crown Case Statement notes that Mr Obeid gave the go-ahead for the purchase.
5. A Peter Warren Automotive file was opened for the sale of the vehicle. The purchaser's name that was included on the cover sheet of the file and documentation within the file, including the first version of the contract for sale created on or about 6 June 2007 was "Amanda Rosendale". Mr Goodman said at the ICAC Public Inquiry that he did not know the spelling of the name "Roozendaal", and he wrote the name "Rosendale".
6. Documents in the Peter Warren Automotive file indicate that at some stage between 6 June 2007 and 15 June 2007 that Peter Warren Automotive was notified that the name of the purchaser was to be entered as Nata Re. The Crown Case Statement notes that this occurred after Moses Obeid contacted Mr Fitzhenry to tell him of the proposed change of name and then faxed him a copy of Nata Re's licence. Mr Fitzhenry provided the purchaser information and a copy of the driver license to Mr Goodman, who instructed staff at Peter Warren Automotive to register the vehicle in the name of Nata Re. The vehicle was registered in that name on 20 June 2007.
7. On the previous day, 19 June 2007, Mr Goodman had collected the vehicle from Peter Warren Automotive and delivered it to Mr Fitzhenry's business premises. Mr Fitzhenry told the Commission that, before the vehicle was delivered, he spoke with Moses Obeid and was told by Mr Obeid that the car was to be registered in the name of Nata Re. Mr Fitzhenry said this was during a face-to-face conversation in his office at Camperdown. He said, at the time, Moses Obeid phoned someone on his mobile phone to request a faxed copy of the license. Mr Fitzhenry said that within minutes a copy of Nata Re's driver licence arrived on Mr Fitzhenry's fax machine. Mr Fitzhenry said that he then provided the document to Mr Goodman.
8. Mr Roozendaal collected the vehicle later that day (19 June 2007) from Mr Fitzhenry's business premises. At that time the vehicle was still registered in the name of Nata Re. Mr Fitzhenry told the Commission that when Mr Roozendaal arrived at Mr Fitzhenry's premises, Mr Roozendaal was provided with the keys to the Honda vehicle. Further, there was no delivery documentation provided to, or completed by Mr Roozendaal, and no money was received by Mr Fitzhenry from Mr Roozendaal.
9. Mr Fitzhenry told the Commission that Moses Obeid subsequently phoned him and told him that the Honda vehicle had to be registered in the name of Mr Roozendaal's wife, Amanda, and that Moses Obeid provided him the address and name of Amanda Roozendaal. Mr Fitzhenry said he provided this information to Mr Goodman. He said he had no further involvement with the Honda vehicle from that time.

The evidence of Mr Goodman concerning a conversation with Mr Fitzhenry about the reason for the purchase of the Honda vehicle

1. Mr Goodman told the Commission that it was Mr Fitzhenry who asked him to organise the purchase of a Honda CR-V vehicle. He said Mr Fitzhenry phoned him and they met at Mr Fitzhenry's workshop. He said Mr Fitzhenry told him that he had to obtain a black Honda CR-V for Eric Roozendaal, and that Moses Obeid had asked him to do so as soon as possible. Mr Goodman also said that Mr Fitzhenry told him that Moses Obeid would be paying for the Honda vehicle, and that Moses Obeid was buying the car for Mr Roozendaal for doing a favour for Eddie Obeid (Goodman Statement 14 February 2012 paragraph 5).
2. Mr Goodman told the Commission that his involvement in the transfer of monies towards payment for the Honda vehicle was at the direction of Mr Fitzhenry.

Call charge records

1. The Crown Case Statement refers to call charge records which include call records of phones used by Moses Obeid, Peter Fitzhenry, Eric Roozendaal, Rocco Triulcio, and Nata Re (CCS [109] and following). It is the Crown case that there is a correlation between records of the contact between Moses Obeid and others at significant times, including at the times of the procurement of the Honda vehicle, the transfer of cheques, and the obtaining of the Honda vehicle by Mr Roozendaal.

Overview of the application that the proceedings be permanently stayed

1. As I have noted, the applicant makes three related but separate applications for relief, namely, that the proceedings against him be permanently stayed; or, that the representations relied upon by the Crown be excluded under section 138 of the Evidence Act; or, that the representations relied upon by the Crown be excluded under section 90 of the Evidence Act. Counsel for Moses Obeid submits the application can be characterised as a series of different applications for either a permanent stay or exclusion of evidence based on the proposition that the investigation undertaken by the Commission was not an investigation into "corrupt conduct" for the purposes of the ICAC Act and therefore was not a legitimate avenue of investigation (T8.42). Counsel submits that the investigation undertaken was an investigation into a private individual and not a public official. That "It was an investigation into what Moses Obeid had effectively done and the mechanics of the transaction concerning the Honda CRV that did not involve, relevantly, Eric Roozendaal who was the public official, the only public official, relevant to the present investigation" (T8.50).

The argument that the investigation carried out by the Commission was not an investigation into "corrupt conduct" for the purposes of the ICAC Act and therefore was not a legitimate investigation.

1. It is submitted that the conduct of the applicant identified in the course of the investigation, and, in particular, the conduct identified in the course of Compulsory Examinations and in the course of the Public Inquiry, and/or the questioning that led to the answers now relied upon by the Crown, was not and could not have related to "corrupt conduct" within the meaning of s 8 of the ICAC Act (W/S [4]).

Meaning of "corrupt conduct"

1. "Corrupt conduct" is any conduct which falls within the description of corrupt conduct in section 8 of the ICAC Act, but which is not excluded by section 9 (s 7(1) ICAC Act).
2. Section 8(1)(a) of the ICAC Act relevantly provides that "corrupt conduct" is: any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or …
3. Section 8(2) further provides: Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve any of the following matters … (emphasis added)
4. Section 8(2) then sets out an exhaustive list of specified crimes. Section 9 however imposes a limitation on the nature of corrupt conduct. Section 9(1) relevantly provides: Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve - (a) a criminal offence, or …
5. Clearly, therefore, despite section 8, conduct does not amount to corrupt conduct unless, relevantly, the conduct could constitute or involve a criminal offence.
6. The term "could constitute or involve" a criminal offence was considered in Greiner v ICAC (1992) 28 NSWLR 125 at 136 (per Gleeson CJ) and 186-187 (per Priestly JA). Gleeson CJ noted (at 136): "… In determining whether conduct could constitute or involve a criminal offence, the Commissioner would be required to go through the following process of reasoning. First, he would be required to make his findings of fact. Then, he would be required to ask himself whether, if there were evidence of those facts before a properly instructed jury, such a jury could reasonably conclude that a criminal offence had been committed."
7. Priestly JA noted that, despite s 8 of the ICAC Act, conduct does not amount to corrupt conduct unless the facts found by the Commission as constituting corrupt conduct, would, if the trier of fact were to accept them as proved beyond reasonable doubt, constitute the offence charged (at 186-7).

The requirement that the corrupt conduct "…adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official" (section 8(2) of the ICAC Act)

1. In ICAC v Cunneen [2015] HCA 14 (Cunneen) French CJ, Hayne, Keifel and Nettle JJ noted two competing constructions of the term "adversely affects" in s 8(2) of the ICAC Act. Either it means "…adversely affect or could adversely affect the probity of the exercise of an official function by a public official, or it means adversely affect or could adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case (at [2])". It was noted that the latter construction "…would result in the inclusion in "corrupt conduct" of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration or the principal objects of the ICAC Act. It would enable the Commission to exercise its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration and the principal objects of the ICAC Act". Their Honours determined the former meaning is to be preferred (at [3]). Their Honours noted (at [46]): "[46] Section 8(2) is directed at conduct which adversely affects the exercise of an official function by a public official. Given that paras (b)-(d) of s 8(1) define the extent of improbity of public officials at which the ICAC Act is directed, it is inherently improbable that s 8(2) is directed at any broader range of improbity in the exercise of official functions than is covered by s 8(1)(b)-(d). It is more logical and textually symmetrical to read "adversely affect" in s 8(2) as confined to having an injurious effect upon or otherwise detracting from the probity of the exercise of the official function in any of the senses defined by s 8(1)(b)-(d)."
2. The added requirement is that the conduct could involve one or other of the kinds of offences listed in s 8(2)(a)-(y). The conduct must adversely affect the honesty or probity of the public official in the exercise of the duties. The matters specified in s 8(2)(a)-(y) are matters of a kind that direct particular attention to whether the conduct in question did or could adversely affect the exercise of official functions by a public official engaging in conduct of the kind described in any of s 8(1)(b)-(d). Their Honours noted (at [50]-[51]): "Hence the competing, and more compelling, construction of s 8(2) is that, if the conduct in question "could involve" any of the matters in paras (a)-(y) and if the conduct adversely affects or could adversely affect the probity of the exercise of an official function in one of the ways listed in s 8(1)(b)-(d), the conduct is "corrupt conduct" … [51] Both of these conditions must be met in order to satisfy s 8(2). It is not enough to show only that there was conduct by a person (whether or not a public official) that could involve one or more of the matters listed in paras (a)-(y). It is necessary to show also that the conduct did or could adversely affect the exercise of official function in one of the ways listed in s 8(1)(b)-(d)."

Argument of the Applicant that there must be some lack of honesty on the part of the public official - The public official must know of the corrupt conduct

1. Counsel for the applicant submits it is not sufficient there was conduct by a person that could involve one or more of the matters listed in paras (a)-(y) of s 8(2). Counsel submits there must be some lack of honesty or probity or lack of impartiality on the part of a public official in the exercise of an official function. Counsel submits that it follows that the public official needs to be aware of the conduct. Counsel submits, therefore, that if the public official does not know about the conduct, or had not been complicit in the conduct, that the conduct could not affect the official's performance of their duties (W/S [19]).

Argument of the Applicant that the conduct was not "corrupt conduct" under section 8

The powers extended to the Commission are focused on public officials

1. It is submitted by Counsel for the applicant that the conduct investigated did not go to the honest or impartial exercise of Mr Roozendaal's official functions. It is submitted that there was no questioning that would support any allegation that Mr Roozendaal had agreed to do favours for any member of the Obeid family, and that there was no suggestion that he was aware that Moses Obeid had financially contributed to the purchase of the vehicle. Further, it is submitted that the approach taken by the commission appeared to be that Mr Roozendaal's position was "adversely affected" within the meaning of s 8 of the ICAC Act "… merely from accepting a discounted vehicle even though Roozendaal was not acting dishonestly or impartially". It is submitted that this is precisely the kind of conduct which the High Court found to be ultra vires in Cunneen (W/S [61]).
2. As was noted in the second reading speech to the ICAC Act the powers of the Commission were not to investigate crime generally, rather that the Commission has a very specific purpose which is to prevent corruption and enhance integrity in the public sector. It was noted that the Commission would possess formidable powers which were effectively the coercive powers of a Royal Commission. Further, it was said that "…though the commission would be able to investigate the conduct of private individuals which affects public administration, the focus is public administration and corruption connected with public administration. The coercive powers of the commission will be concentrated on the public sector". The "extraordinary powers" vested in the commission include to "…require any person to provide information regardless of the privilege against self-incrimination ([ss 26, 37]); to summon witnesses and take evidence ([s 35])" (See Cunneen at [8]).

Limitation on nature of corrupt conduct: Section 9 of the ICAC Act

1. Section 9 of the ICAC Act in part provides, as indicated above, as follows: 9. Limitation on nature of corrupt conduct (1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve - (a) a criminal offence, or …
2. Concerning the criminal offence said to constitute the alleged corrupt conduct, the Commission in its report noted (at p 33): "The Commission is satisfied for the purposes of s 9(1)(a) of the ICAC Act that, if the facts it has found were to be proved on admissible evidence to the criminal standard of beyond reasonable doubt and accepted by an appropriate tribunal, they would be grounds on which such a tribunal would find that Moses Obeid has committed an offence under s 249B(2)(b) of the Crimes Act of corruptly giving a benefit to Mr Roozendaal, totalling $10,800, as an inducement for Mr Roozendaal to show favour to Obeid business interests in the exercise of his official functions or the receipt of which would tend to influence Mr Roozendaal to exercise his public official functions in a manner favourable to the Obeid business interests."

The criminal offence said to constitute "Corrupt Conduct" under section 8 of the ICAC Act: Section 249B of the Crimes Act 1900

1. As I have noted s 9 provides that, despite s 8, conduct does not amount to corrupt conduct unless, relevantly, the conduct could constitute or involve a criminal offence. Here the criminal offence said to constitute or involve the alleged corrupt conduct, which is required to bring the investigation within section 9 of the ICAC Act, is s 249B of the Crimes Act 1900 which is headed "Corrupt commissions or rewards". S 249B(1) provides for a circumstance where an agent corruptly receives or solicits a benefit, whilst s 249B(2) provides for a circumstance where a person corruptly gives or offers to give to any agent any benefit. The Second Reading Speech to the Crimes (Secret Commissions) Amendment Bill 1987 noted that the target of the bill "… is the corrupt activities of those agents who will either accept bribes in relation to their principal's affairs, or who do not make full disclosure to their principals of matters which may affect the carrying out of the agent's duties…"

Meaning of "corruptly gives" a benefit in section 249B(2)

1. Counsel for the applicant submits the word "corruptly" "must be read on the basis that it has some work to do such that more is required than simply the intention set out in the section" (W/S [26] citing Mehajer v The Queen (2014) 244 A Crim R 15 at [54]).
2. Counsel for the applicant points to the common element of the offences under s 249B(2)(a)(i) and (ii), namely, that the accused "gives or offers to give" to the agent a "benefit" and submits that the element requires "something to move from the other person to the agent" (T14.38). That is, that the accused has to give, or offer to give, to the agent a benefit. It is the case of the applicant that there is no evidence that Mr Roozendaal was aware that Moses Obeid was effectively subsidising the purchase of the vehicle. It is submitted by counsel for the applicant that Mr Roozendaal, on the Commission's case, believed he was buying the car for $34,000 from a car dealer, Mr Fitzhenry, and was not aware of the subsidising of the purchase of the car. The submission continues that Mr Roozendaal believed that he received a discount because of Mr Fitzhenry's connections in the auto trade and that he was not aware that part of the purchase price was paid by another. It is therefore submitted that the element of the offence under s 249B(2), that the accused gives or offers to give to the agent a benefit, could never be made out (T16.42). It is submitted that it therefore follows that the facts are such that "a properly instructed jury could not reasonably conclude that a criminal offence had been committed".
3. The elements of an offence under section 249B, consistent with the decision in Mehajer (at [64] and following), are set out in the applicant's written submissions (at [23]). It is noted that a common element to offences under s 249B(2)(a)(i), s249B(2)(a)(ii) and s249B(2)(b) is that the accused "gives or offers to give" to the agent a "benefit". The benefit or offer must be given as an "inducement" and, for an offence under s 249B(2)(b), the benefit given must "tend to influence the agent to show favour or disfavour".
4. The Crown submits that based upon the facts as disclosed over the course of the investigation, "…the Commission could properly find that, for the purposes of s 9(1) of the ICAC Act, an offence under s 249B(2)(b) of the Crimes Act could have been committed" (W/S [71]). In Mehajer, in relation to the Count against Mr Mehajer under s 249B(2), Bathurst CJ noted, in relation to the element that the benefit must "tend to influence the agent to show favour or disfavour", that the Crown must prove "…the payment was one which objectively speaking would tend to influence the agent to show favour …" (emphasis added).
5. In considering the differing elements of offences under s249B (2) Bathurst CJ noted (at [68]-[70]): "[68] The differences in the elements of each offence can be summarised as follows. For a benefit or offer of a benefit to constitute an offence under s 249B(2)(a)(i) of the Act, it is necessary to establish that the donor of the benefit intended the benefit or offer as an inducement to the agent to do or refrain from doing a particular act in relation to the principal's affairs (or as a reward for doing or refraining from doing such an act). [69] By contrast, s 249B(2)(a)(ii) of the Act does not require the payment to be an inducement or reward for doing or not doing a particular act. Rather it requires that the payment was intended by the donor as an inducement or reward for showing or not showing favour to a particular person in relation to the affairs of the principal. [70] The difference between the elements of s 249B(2)(a)(i) and (ii) of the Act with s 249B(2)(b) is that, for the purposes of the latter section, the donor, whilst not offering the payment or benefit as an inducement or reward, must make the payment or offer to make the payment knowing, believing or intending that the payment was one which would tend to influence the agent to show favour or disfavour in relation to the affairs or business of the principal of the agent" (emphasis added).
6. In Jamieson v R [1988] VR 879 (at 881, 884 per Young CJ (Fullager and Hampel agreeing) it was noted that, in determining whether the act was done corruptly, it is the intention or belief of the person giving the benefit which is relevant to determining whether the act was done "corruptly". The relevant intention of the person giving the benefit is, that by giving the benefit, "…its receipt should influence the person, being an agent… to show favour to the giver in relation to the affairs of his principal" (at 884).
7. Ultimately, in Mehajer, in addressing the argument of the applicant in that case that it was an element that the Crown prove the recipient was actually influenced to show favour, Bathurst CJ went on to say (at [99]): "[99] The appellant's contention that it is necessary for the Crown to prove that the recipient was actually influenced to show favour or disfavour, whilst not being required to prove that favour or disfavour was in fact shown, is a fine distinction for which no authority was cited and which, in my opinion, is not justified by the words of the section. [100] The words in s 249B(2)(b) of the Act, "would in any way tend to influence the agent", invite attention to the question of whether the payment would have that tendency, not that in fact it operated on the agent either pre-disposing him to show favour or in fact causing him to show favour. Rather, the payment has to be one which objectively speaking would have that tendency whether it influenced the agent or not. [101] The construction proposed by the appellant would mean that the commission of an offence under s 249B(2)(b) of the Act would depend on the state of mind of the recipient of the payment and not that of the person charged with the offence. It would also mean that in respect of an offence charged under s 249B(1)(a)(ii) an agent would not be liable if he accepted the corrupt payment without having any intention to be influenced by it. Such a construction is unlikely to have been intended by the legislature."

Section 13 of the ICAC Act - principal functions of the ICAC

The conferral of the "investigative jurisdiction" of the Commission

1. Section 13 the ICAC Act relevantly provides that the principal functions of the Commission are as follows: 13 Principal functions The principal functions of the Commission are as follows- to investigate any allegation or complaint that, or any circumstances which in the Commission's opinion imply that- corrupt conduct, or conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or conduct connected with corrupt conduct, may have occurred, may be occurring or may be about to occur, to investigate any matter referred to the Commission by both Houses of Parliament, to communicate to appropriate authorities the results of its investigations, … The Commission is to conduct its investigations with a view to determining- whether any corrupt conduct, or any other conduct referred to in subsection (1)(a), has occurred, is occurring or is about to occur, … (2A) Subsection (2)(a) does not require the Commission to make a finding, on the basis of any investigation, that corrupt conduct, or other conduct, has occurred, is occurring or is about to occur. The principal functions of the Commission also include: the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations. (Emphasis added)
2. Section 13 therefore confers upon the Commission its "investigative jurisdiction" (Duncan v Independent Commission Against Corruption (2015) 256 CLR 83 at [3] per French CJ, Kiefel, Bell and Keane JJ). The opinion formed by the Commission pursuant to s13 (1) provides the jurisdictional prerequisite to the exercise of the Commission's powers. The jurisdictional pre-requisite imposed by s 13(1) is that the Commission form an "opinion" that the allegation or complaint made to it "or any circumstances" are sufficient to "imply" that corrupt conduct, or conduct liable to allow, encourage or cause corrupt conduct "may have occurred", "may be occurring", or "may be about to occur" (emphasis added).
3. In Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption [2018] NSWSC 387 at [30]-[32] Fagan J said: "[30] The plaintiff's first ground in its summons depends upon the proposition that the matters which the Commission proposes to investigate under s 20 and to examine in a Public Inquiry under s 31 must be such as would constitute corrupt conduct if the facts under investigation should be proved and that this is a jurisdictional pre-requisite to the Commission's exercise of its powers."
4. I do not consider that s 13(1) operates in that way. It appears to me the jurisdictional pre-requisite is that the Commission should form the opinion that allegations, complaints or circumstances which have come to its attention "imply" that "corrupt conduct" or "conduct connected with corrupt conduct" "may" have occurred. The formation of an opinion to this effect is the pre-requisite to the exercise of the power, not the fact of the matter to which the opinion is directed.
5. In the present case I am readily able to infer that the Commission did form the requisite opinion. This follows inexorably from its formulation of the matters which it proposes to investigate in the intended Public Inquiry, as set out in the witness summons. The plaintiff has adduced no evidence from which I could infer that ICAC has not formed the opinion.
6. In determining the degree of certainty of the existence of "corrupt conduct" it is significant that the language of the section includes the terms that, in the opinion of the Commission, the circumstances are "sufficient to imply" and "may be occurring" and "may be about to occur". The Crown submits that "…Necessarily, the decision to investigate, based upon an opinion about what it is an allegation or complaint implies, will not be made on the same factual material as may eventually inform a finding that corrupt conduct has occurred (or the non-making of such a finding). At the stage at which the opinion is formed, the investigation will not yet have taken place and most of the material relevant to the making of a finding will not yet be before the Commission" (W/S [21]).
7. Therefore, as a jurisdictional prerequisite under s 13, the Commission must be able to form the opinion that the allegation implies that conduct may have occurred (or may be occurring, or may be about to occur) that is capable of constituting or involving a criminal offence, and which "adversely affects", or that "could adversely affect", the exercise of official functions in the sense of having an effect on the probity of the performance of that function. Alternatively, the Commission must be able to form the opinion that the allegation implies that conduct may have occurred (or may be occurring, or may be about to occur) that is liable "to allow, encourage, or cause the occurrence of corrupt conduct", that being conduct that is capable of constituting or involving a criminal offence, and which "adversely affects", or that "could adversely affect", the exercise of official functions, in the sense of having an effect on the probity of the performance of that function, that may have occurred, may be occurring, or may be about to occur (ss 9(1)(a); 8(2); 8(1)(b)-(d) of the ICAC Act).
8. In Duncan v Independent Commission Against Corruption [2016] NSWCA 143 (Duncan) at [682], Basten JA (Bathurst CJ agreeing), noted a finding that conduct is corrupt because it "could adversely affect, either directly or indirectly," the probative performance of an official function, under s 8(2) does not require: "… demonstration of any differential outcome, although such a demonstration might satisfy the statutory test. It would be sufficient to show that the manner of exercise of the function might be adversely affected. That required an objective assessment of the capacity of particular conduct to affect the exercise of an administrative function, which in essence [is] a factual question for the Commission."
9. Further, at [686]: "The primary function of the Commission is to make findings of fact in respect of alleged conduct which may constitute corrupt conduct. That, in many cases, the Commission will be required to consider whether the conduct demonstrated on the material before it could constitute a criminal offence is an exercise in characterisation. Furthermore, the exercise is undertaken at a high level of abstraction: the Commission has no jurisdiction to consider a criminal charge, nor has any charge been formulated. The Commission is not bound to follow the rules of evidence and will often consider material which would be inadmissible in a criminal prosecution. In order to characterise the conduct as capable of constituting or involving a criminal offence, it is not required to analyse the evidence before it and disregard that which would be inadmissible for the purposes of a prosecution."
10. As I have noted earlier, the operation of s 9 provides that conduct does not amount to corrupt conduct unless the facts found by the Commission as constituting corrupt conduct, would, if the trier of fact were to accept them as proved beyond reasonable doubt, constitute the offence charged (Greiner at 186-7).

Submissions of Counsel for the Applicant: Section 13, the jurisdictional prerequisite

1. Counsel for the applicant submits that the jurisdictional prerequisite arising from section 13(1), but not necessarily the only prerequisite, is that the Commission must form the requisite opinion that the allegation implies the matters set out in that subsection. Further, the Commission's opinion, for the purpose of establishing the prerequisite, must be one that is rational or objectively capable of falling within the terms of s 13(1)(a). It is submitted that here the investigation was, in the Commission's opinion, into a matter that was in fact not legally capable of being "corrupt conduct". It is submitted that the Commission misconceived the scope of corrupt conduct and, therefore, its own jurisdiction, such that the statutory prerequisite could not be formed. Counsel submits that whatever interpretation of s 13(1) is adopted, s 9 of the Act, requiring that the "corrupt conduct" could constitute or involve a criminal offence, focuses on matters of objective fact rather than the Commission's opinion. Counsel submits, however, that once the jurisdictional prerequisite of s 13(1)(a) is satisfied, there nonetheless remains, for as long as the Commission is exercising powers, the need to ascertain whether those powers were within jurisdiction. Counsel submits that the Commission will be acting ultra vires if either: 1. the investigation or the particular powers being exercised were, objectively speaking, not such as to amount to an investigation into "corrupt conduct", or 2. the investigation or the particular powers being exercised were for a purpose that was not to investigate "corrupt conduct" (T22.46).
2. I accept the submission of counsel for the applicant that it follows that where the Commission establishes the jurisdictional prerequisite in order to commence an investigation, that, in assessing the Commission's continuing exercise of its power in the course of its continuing investigation, it is necessary to look at each of the powers as they are being exercised and determine whether the Commission has properly exercised its functions. It does not follow that if the jurisdictional prerequisite has been established at the time of commencement that every power exercised from that point is lawful. The investigation has to be, on an ongoing basis, for a purpose authorised by s 13.

Section 13, the jurisdictional prerequisite: Was the investigative jurisdiction of the ICAC properly invoked

The case of the applicant that the powers exercised by the ICAC were ultra vires

1. In the course of this investigation the Commission exercised a number of powers under the ICAC Act. These powers included:

• Conducting an investigation in the nature of a "preliminary investigation" (ss 20 and 20A).
• Conducting a preliminary investigation to determine that "a more complete investigation" under the ICAC Act was warranted (s 20A(2)).
• Conducting a "Compulsory Examination" in private under s 30 of the ICAC Act.
• Conducting a "Public Inquiry" under s 31 of the ICAC Act.
• Summoning a person to appear before the Commission at a Compulsory Examination or a Public Inquiry to give evidence under section 35(1) of the ICAC Act.

1. The powers exercised by the Commission, therefore, included the Compulsory Examination of witnesses in the course of the investigations undertaken.
2. The powers exercised by the Commission must be within the statutory purpose conferred to investigate "corrupt conduct" as defined in section 8 and are limited by the operation of section 9 of the ICAC Act. It follows, as submitted by Counsel for the applicant, to the extent that the Commission was exercising its powers other than to investigate "corrupt conduct" the exercise of such powers would not be for the purpose conferred by the Act thus, ultra vires.
3. As counsel for the applicant properly submits, the investigative powers provided by the Act must be strictly construed.
4. The ICAC Act was not intended to confer powers to investigate private individuals and investigations are limited to public officials. As was noted in Cunneen (at [8]), the Commission was vested with "extraordinary powers" to conduct investigations on its own initiative, which include the power to compel a person to provide information regardless of the privilege against self-incrimination, to compel the production of information and documents, and to conduct Compulsory Examinations and Public Inquiries. A witness summoned to attend or appear at a Compulsory Examination or Public Inquiry is not entitled to refuse to answer any question. The court must strictly construe the powers and, to the extent that the Commission has acted fundamentally outside its power, a permanent stay would be warranted.
5. It is not contended here that the Commission did not have power to conduct a Preliminary Investigation. As earlier indicted, it is the case of the applicant that the powers exercised following the preliminary investigation were not to investigate conduct amounting to "corrupt conduct" and were ultra vires. In written submission the case of the applicant is put in the following way ([31]): "The contention ultimately made is that from the time of a commencement of an investigation proper, and at the very least by the time of the Public Inquiry in Operation Indus, the proper characterisation of the ICAC's exercise of its powers is that they were not to investigate "corrupt conduct". They were to investigate, or in their primary or substantial part to investigate, the "conduct" of Moses Obeid which was not "corrupt conduct" within the meaning of ss8 and 9 of the ICAC Act. This "conduct" investigated was either Moses Obeid's role in Roozendaal's purchase of a Honda Civic for $34,000 and/or (at the Public Inquiry) whether Moses Obeid had provided a false account about his role to ICAC in his Compulsory Examination contrary to section 87 of the Act, neither of which are "corrupt conduct"."
6. Two reasons are proffered why the conduct could not amount to "corrupt conduct": 1. The conduct could not amount to an offence under s 249B of the Crimes Act, and therefore was not conduct of a kind that fell within the limitation in section 9 of the ICAC Act. It is submitted that the conclusion of the Commission that the conduct being investigated fell within s 249B was misconceived in that the Commission "… Evidently misconstrued the terms "benefit" and "corruptly" in s 249B(2) and, further, proceeded on the misconception that Moses Obeid could commit the offence under this section even if Roozendaal was not involved in that offence" (W/S [33]); 2. The conduct could not amount to "corrupt conduct" within the meaning of s 8 of the ICAC Act "…in circumstances where it did not have the capacity to "adversely affect" the honesty or impartiality of Roozendaal's performance of his duties". It is submitted that the Commission was "…acting under a legal misconception of the term "adversely affect" in s 8(2) of the ICAC Act that was decided adversely to the ICAC in the 2015 High Court decision in Cunneen (W/S [34])". It is further submitted that "…the Commission conducted a general "Crime Commission" style inquiry into Moses Obeid (not Eric Roozendaal as the relevant public official) and proceeded as though Moses Obeid's conduct of providing a benefit to Eric Roozebdaal was ipso facto "corrupt conduct" irrespective of whether that conduct involved any partiality or dishonesty on the part of Roozendaal" (W/S [34]).
7. The contention of the applicant is that when the entirety of the record is considered, including the way in which questions were asked, the way in which the investigation was framed, and the way in which the ultimate report was delivered, that the opinion of the Commission that the jurisdictional prerequisite under s 13 had been met was misconceived. It is submitted that the Commission wrongly formed a view that Mr Moses Obeid's conduct was corrupt conduct, and that it was conduct that could amount to a criminal offence within the meaning of section 9 of the ICAC Act (T13.17).

The Commission's exercise of power to commence a preliminary investigation

1. On 23 August 2011, the Commission commenced a preliminary investigation into the allegation that the Honda vehicle had been provided to Mr Roozendaal's wife in return for what was said to be a favour or favours provided by Mr Roozendaal to Mr Edward Obeid. In doing so, the Commission was exercising a power to conduct an investigation that was in the nature of a preliminary investigation pursuant to ss 20 and 20A of the ICAC Act. It is not in issue that the power was exercised in order to "discover or identify conduct that might be made the subject of a more complete investigation [under the ICAC Act]" (s 20A(2)(a)), or "to decide whether to make particular conduct the subject of a more complete investigation" (s 20A(2)(b)). In December 2011, the Commission determined that the investigation of conduct in the preliminary investigation was to be escalated to a more complete investigation.
2. On 30 April 2012, the Commission issued a summons to Moses Obeid to attend a Compulsory Examination. The "nature of the allegation or complaint being investigated" for the purposes of s 30(3) of the ICAC Act, was identified in the summons as being: "… an investigation of an allegation or complaint that in 2007, the Hon. Eric Roozendaal MLC, was given a financial benefit by Moses Obeid, a Honda CR-V motor vehicle, in return for Mr Roozendaal exercising his official functions in favour of Moses Obeid and/or Edward Obeid."
3. Counsel submits that if this were a correct objective characterisation of the purpose of the exercise of the Commission's power, that would satisfy the definition of "corrupt conduct". It is submitted however that "…the statement does not reflect the investigation in fact being conducted and does not reflect the purpose for which ICAC's various powers were being exercised" (W/S [39], emphasis added).
4. Counsel argues that even at this early stage of the investigation it was apparent that the Commission's exercise of powers did not relate to the issue of whether the Honda vehicle was provided "…in return for Mr Roozendaal exercising his official functions in favour of Moses Obeid and/or Edward Obeid". It is submitted that this was the position by the time of the Compulsory Examination of Moses Obeid on 8 May 2015 and that it was the position by the time of the Public Inquiry. Counsel submits that, by the time the summons was issued to Moses Obeid, the Commission had obtained statements from a number of witnesses who were to be summonsed to a Compulsory Examination, who were all witnesses within the motor vehicle industry.
5. It is submitted that, with one exception, their evidence related to the mechanics of how the Honda vehicle came to be sold by Fitzhenry and Goodman, via Moses Obeid, to Roozendaal (W/S [40]). It is submitted that none of these witnesses could assist with the question of whether the purchase related to the official functions of Mr Roozendaal.
6. It is submitted that at this stage of the investigations there was no evidence that Mr Roozendaal was ever told that the Honda vehicle had been purchased for $44,800 or contributed to by the Obeid family. Further, it is submitted that as at the time the summons was issued to Moses Obeid on 30 April 2012, that the Commission was aware that Moses Obeid had not given the Honda vehicle to Mr Roozendaal. At that time the Commission was in possession of numerous documents evidencing the rather complex steps in the transfer of the Honda vehicle and the provision and movements of monies to secure the vehicle. It is submitted that the investigation was not into conduct comprising the giving of the Honda vehicle and could only have been conduct comprising the circumstances in which Mr Roozendaal purchased a car for $34,000 but in respect of which an Obeid entity appeared to contribute $10,800 indirectly (W/S [42]).
7. Significantly, however, the one exception referred to by Counsel was an assertion by Mr Fitzhenry in his statement that he had arranged the purchase of the Honda vehicle for Mr Roozendaal and that he was told by Moses Obeid that the vehicle was being facilitated for Eric Roozendaal "…in return for favours that Eric Roozendaal had done for his father". As I have noted above however, there was a similar assertion by Mr Goodman that Mr Fitzhenry told him that Moses Obeid would be paying for the Honda vehicle and that Moses Obeid was buying the car for Mr Roozendaal for doing a favour for Edward Obeid.

Identifying whether there was a "benefit" within the meaning of s 249B of the Crimes Act

The examination of Mr Roozendaal on 7 May 2012

1. For the alleged corrupt conduct being investigated to be capable of constituting a criminal offence under s 249B of the Crimes Act, and therefore forming the foundation of the Commission exercising its functions, a "benefit" within the meaning of s 249B needed to be identified.
2. On 7 May 2012, the Commission conducted Compulsory Examinations of Ms Amanda Roozendaal and Mr Eric Roozendaal. It is submitted by counsel for the applicant that no benefit was identified in the course of the Compulsory Examination of Mr Roozendaal.
3. At the Public Inquiry on 1 November 2012 the scope of the investigation was amended to include: "To investigate the circumstances in which in June 2007 Moses Obeid or the Obeid family provided the Honourable Eric Roozendaal with a gift or benefit being: (a) a Honda CR-V motor vehicle, or (b) a Honda CR-V motor vehicle at a price to Mr Roozendaal reduced by $10,800 less than the market price or (c) a payment of $10,800 towards the price of the vehicle"
4. Counsel for the applicant submits that ultimately the alleged "benefit" said to be identified within the amended description was not established in the course of examination of Mr Roozendaal or at the Public Inquiry.
5. In determining whether there was evidence amounting to a "benefit" within the meaning of s 249B, which could be said to found the power of the Commission to conduct an investigation, it is necessary to consider the evidence given by Mr Roozendaal at the Compulsory Examination on 7 May 2012 with some precision. Primarily, the examination of Mr Roozendaal related to the investigation of the circumstances in which Moses Obeid had procured the Honda vehicle and an examination of possible motives for Moses Obeid's conduct in facilitating the purchase of the vehicle or the provision of monies towards the purchase price.
6. It is the case of the applicant that there was no exploration by the Commission which would satisfy a conclusion that the investigation was into whether or not the benefit of the subsidising of the purchase price was given as an inducement for Mr Roozendaal to do anything, which is a necessary element for an offence under section 249B, nor was there any expectation that could have tended to influence Mr Roozendaal to act in a particular way in relation to the affairs of the Crown. It is submitted that no link has been established between the provision of any benefit and any alleged impropriety by Mr Roozendaal, being an element that the Crown must prove. Therefore, it is submitted, the conduct could not fall within the definition of corrupt conduct by reason of the operation of s 9(1)(a) of the ICAC Act.
7. If that conclusion was reached then, when considering the powers of the Commission, which must be strictly read, the investigation carried out by the Commission was not authorised by statute. It is submitted that it is clear from a review of the transcript of the Compulsory Examination of Mr Roozendaal on 7 May, seen in the context and light of all the available evidence, that, "…properly characterised, the only "conduct" that was being investigated was the conduct of Moses Obeid and his motivation for such conduct, namely, the circumstances in which Moses Obeid came to procure the car and his motivation for doing so, all being matters which were not known or alleged to have been known by Roozendaal" (W/S [45]).
8. Counsel points to a number of aspects of the Compulsory Examination of Mr Roozendaal in support of the submission that no "benefit" has been established. These include:

• "[Mr] Roozendaal stated that he had not had any dealings with any of the businesses of Edward Obeid or Moses Obeid and never made any decision which touched or concerned the business interests of either Edward or Moses Obeid: 35PT-36PT" (W/S [46(a)]).
• That it was not suggested to Mr Roozendaal that he had done, or agreed to do, favours for Edward Obeid, Moses Obeid, or the Obeid family. Counsel points to a particular point in the questioning of Mr Roozendale where Mr Roozendaal is questioned by his legal representative. Counsel for Mr Roozendaal asked Mr Roozendaal whether he had knowledge the vehicle was paid for by a Truilco company, "Challenge Property Investments", and he responded he had no knowledge. At that time the Commissioner intervened, telling counsel "There's no need to go into all of this because there's been no evidence that Mr Roozendaal knew these matters" (T382.17).

1. It is submitted that the fact the Commissioner stepped in to disallow the question was "…effectively confirming the position that the ICAC case is not that Mr Roozendaal was provided favours or was asked to provide favours" (T30.50).
2. Counsel for the applicant submits that whilst the investigation may have commenced in relation to an allegation that the vehicle was purchased in return for a favour or favours performed by Mr Roozendaal, based upon, amongst other things, the assertions of Mr Fitzhenry, ultimately, sometime after forming that opinion and before the completion of the Compulsory Examination of Mr Roozendaal, the Commissioner was signalling that the provision of favours by Mr Roozendaal was no longer the focus of the investigation (T33.22).
3. It is submitted that when the proceedings of the Commission are examined it becomes apparent that the investigation did not continue on the basis that there was an actual favour provided. Counsel submits that the Commission did not make such a finding nor did the Commission investigate one. Counsel submits that this is where the decision to proceed with the investigation was misconceived; that the Commission proceeded on the basis that it was a sufficient foundation for Moses Obeid to have the intention to provide a benefit.
4. Counsel submits that the only possible area where Moses Obeid could have obtained a favour, on the Commission's case, was to do with Moses Obeid's business "Streetscape" where a tender with the RTA was considered. Counsel submits that there was no evidence called from the RTA or from the office of Mr Roozendaal. Counsel points to the fact that the only witnesses that were called at the Compulsory Examination stage were witnesses who dealt with the mechanics of the Honda transaction (T34.43). Further, on the question whether favours had been provided, counsel submits the Commission did not put to Moses Obeid the assertion by Mr Fitzhenry that he was told the car was required because of favours provided by Mr Roozendaal to Mr Edward Obeid.
5. In the course of Mr Roozendaal's Compulsory Examination, Mr Roozendaal was asked about his dealings with Edward and Moses Obeid and he said he did not make any decision which touched upon or concerned the business interests of Moses Obeid which included a Lake Cathie development and an interest in a Circular Quay business (W/S [81(a)]). Mr Roozendaal said while he was aware that Moses Obeid businesses were involved in a tender process with the RTA that the process was conducted entirely by the RTA and the probity auditor.
6. Counsel submits that whilst the matter of Streetscape was further touched upon that "It is apparent from the exchange that the Commission were making no enquiries into the details of any conversation with Moses Obeid about Streetscape or the capacity of Roozendaal to assist … what it involved or what influence (if any) Roozendaal had" (W/S [81(b)]). Counsel points to a further point in the Compulsory Examination of Mr Roozendaal where the Commissioner asked questions about Streetscape and submits that at that time, "…the Commissioner made clear that it accepted Roozendaal had done nothing to assist Moses Obeid and where there was no suggestion that Moses Obeid requested any favours of Roozendaal" (W/S [81(b)]).

Evidence of Moses Obeid at the Compulsory Examination

1. Counsel submits that the Compulsory Examination of Moses Obeid concerned overwhelmingly the mechanisms of the transaction of the Honda vehicle. Counsel points to the following matters and submits that, when analysed, again support a conclusion that an investigation within the powers permitted by ICAC Act did not "in fact" occur. It is argued that there was no evidence of a favour or benefit. The matters referred to included:

• To the limited extent that Moses Obeid was asked questions about Streetscape, Moses Obeid either corroborated or was consistent with Mr Roozendaal's evidence to the extent that there were no dealings with Mr Roozedaal and that the tender was dealt with by the RTA/probity officer (W/S [68(a)]); and that the process that Streetscape was undertaking was all being done through a probity auditor, effectively removed from Mr Roozendaal. Counsel submits that no relevant witnesses were called to give evidence concerning this aspect of the Streetscape business.
• The questioning in the course of examination did not identify what Mr Roozendaal could have done to assist "… but rather proceeded on the premise Roozendaal "may" be in a position, in an unidentified and unspecified way, to "affect overall business interests of the Obeid family" (which he denied): 222PT.21-32. The only particular businesses briefly discussed other than Streetscape did not have anything to do with Moses Obeid: see 244PT.9-246PT.16" (W/S [68(b)]). It is submitted also that exploration of other business interests of Moses Obeid was minimal and that the sole potential benefit or sole potential areas where favours could be relevant was the Streetscape business (T58.1-3).
• Counsel submits that the propositions put stop short of "corrupt conduct"; that "There is no suggestion made that Moses Obeid gave him a car as a reward for favours given, no suggestion he gave the car as an incentive to do conduct in the future, no proposition put that he sought to encourage Mr Roozendaal to do something to act corruptly" (T57.6-10).
• Counsel Assisting suggested to Moses Obeid that he told Roozendaal that the price for the Honda would be $34,000, and that proposition was either accepted or accepted as being possible by Moses Obeid. It is submitted that at no stage was it suggested to Moses Obeid that he told Roozendaal that he or an Obeid entity was paying or contributing $10,800 towards the car.
• That the evidence of Moses Obeid was that he was not personally involved in repaying $10,800 to the entity (Challenge Investments). He accepted that the money was paid by the Obeid Organisation to make up the difference between what Mr Roozendaal paid and what Challenge Investments paid (W/S [68(d)]).

1. Counsel submits that the clear and apparent purpose of the Compulsory Examinations was to investigate the circumstances in which the Honda vehicle came to be given to Roozendaal and that matter "…effectively became an end in itself with the requisite requirement to investigate "corrupt conduct" as defined being lost or misconceived" (W/S [69]).

The Public Inquiry

1. At the opening of the Public Inquiry the Commissioner noted: "Operation Indus concerns only the question whether Moses Obeid or members of the Obeid family gave the Honourable Eric Roozendaal a free motorcar or whether he or they provided Mr Roozendaal with a benefit or gift of $10,800 in connection with a motorcar": 2T.11-14
2. Counsel submits that it is evident in the terms set out by the Commissioner that the ICAC was "…no longer looking into whether Roozendaal had acted honestly or partially; the sole question was the circumstances in which the car was provided notwithstanding Roozendaal's lack of knowledge. This was an investigation into Moses Obeid rather than Roozendaal. This is a matter far removed from the question of corrupt conduct as defined in ss 8 and 9 of the ICAC Act" (W/S [71]).
3. Counsel points to the following statement made by Counsel Assisting (6T.44-7T.1): "Financial benefits like the one here can be provided as an inducement for corrupt conduct or as a reward for corrupt conduct. Gifts and favours usually require reciprocation. If a Minister accepts a financial benefit from a person upon whom he could confer a favour than that is worth investigating. If a person confers a benefit on a minister then the motives of that person is worth investigating…"
4. Counsel submits that this further indicates the misconstruction of the ambit of the ICAC's powers and, in particular, "…misconstrues the term "could" in the ICAC Act. The term "could" means would if the facts were established. Not "could" if different facts existed" (W/S [73]).
5. It is the Crown's submission that the Commissioner indicated that the scope of the Public Inquiry had been amended to make it clear that the allegation concerning the benefit or gift of $10,800 to Mr Roozendaal in connection with the Honda vehicle was part of the investigation.
6. Counsel points to further statements made by Counsel Assisting the Commission that part of the Public Inquiry was to determine whether Moses Obeid was lying in the account that he provided to the Commission in the Compulsory Examination. It is submitted that the approach of the Commission was that "…the provision of the car to Roozendaal in circumstances where, unbeknownst to Roozendaal it had been discounted by the Obeids, was in and of itself or necessarily corrupt conduct or was corrupt in Moses Obeid had the requisite nefarious intention albeit not communicated to Roozendaal". Counsel submits that this was misconceived (W/S [75]).
7. Counsel submits that I would find that the various allegations that the Public Inquiry would be examining, as asserted by Counsel Assisting, were not "a proper statement or a complete statement of what was happening" and that the Commission could not "recite itself into power" (T60.26).
8. Counsel submits that the Public Inquiry did not concern matters of public administration and probity within the scope of the ICAC Act properly construed. Counsel submits ultimately that a review of the entire record of the Public Inquiry "…leads to the conclusion that the investigation was properly characterised as being aimed (or primarily or substantially aimed) at investigating the conduct of Moses Obeid and other members of the public about matters that did not involve Roozendaal and which Roozendaal was not aware of". Counsel submits that the Public Inquiry primarily and overwhelmingly concerned the mechanics of how the car came to be purchased "…all while accepting that Roozendaal was unknowing of that background". Counsel submits "The superadded purpose of the Public Inquiry was to challenge the truthfulness of the account provided by Moses Obeid in his Compulsory Examination. Such inquiries did not concern matters of public administration and probity within the scope of the ICAC Act properly construed" (W/S [77]).
9. Counsel submits that the misconceived approach taken by the Commission to the definition of corrupt conduct is apparent in the examination of Moses Obeid at the Public Inquiry. Eight of the ten counts on the indictment relate to the evidence of Moses Obeid at the Public Inquiry. Counsel makes the following observations of the evidence of Moses Obeid at the Public Inquiry: 1. Concerning the Streetscape business, that neither Counsel Assisting nor the Commissioner suggested that the Honda vehicle was provided for any particular favour or purpose; that what was being put at its highest is that there were potential future benefits that might be able to be obtained by providing a gift (T64.2). Counsel submits that little time is spent on this issue in the entire examination of Moses Obeid. 2. That neither Counsel Assisting or the Commissioner put to Moses Obeid the assertions of Mr Fitzhenry, namely, that the Honda vehicle was being provided because Mr Roozendaal had provided favours for Edward Obeid. Counsel submits that this would suggest that it was no longer a matter that was being investigated (W/S [80(b)]). 3. It was not put to Moses Obeid that he told Mr Roozendaal there had been any contribution of $10,800 to the purchase of the Honda vehicle or that the vehicle was linked to any request from Mr Roozendaal for favours or benefits (W/S [80(c)]).
10. Counsel submits that it is evident that the Commission was not inquiring into whether Moses Obeid provided a benefit to repay favours done or to encourage Mr Roozendaal to favour the Obeid family in the future. Counsel submits that it was evident that the approach of the Commission was that a gift was provided in a "strange inchoate context where in the future it might be provided" (T66.1). Counsel submits that to the extent that this is a fair characterisation of the Inquiry that this was a "…misconception of what the ambit of corrupt conduct is and what the jurisdiction of the Commission was" (T66.2-4).

Evidence of Mr Roozendaal at the Public Inquiry

1. Counsel makes the following further observations of the evidence of Mr Roozendaal at the Public Inquiry: 1. It was not suggested to Mr Roozendaal that he had done, or agreed to do, favours for Edward Obeid, Moses Obeid, or the Obeid family. Counsel submits that it can be inferred from the questioning of Mr Roozendaal that there was no basis for such a proposition. Counsel points to the questioning of Mr Roozendaal in relation to Streetscape and his knowledge or any interest in other business interests of Moses Obeid including the Lake Cathie development and Circular Quay leases. 2. In the interchange between the Commissioner and counsel for Mr Roozendaal, when Mr Roozendaal was giving evidence, that the Commissioner made it explicit that there was no suggestion that Mr Roozendaal knew that the Honda had originally been purchased for $44,800. Counsel submits that it can be concluded from this interchange "… that whether or not [Mr Roozendaal] ever agreed to provide benefits to the Obeid family was not within the scope of the Public Inquiry: 382T" (W/S [81(a)]). Counsel submits that it is apparent from the questioning of Mr Roozendaal that the Commission were not making inquiries into the details of any conversation with Moses Obeid about Streetscape or of the capacity of Mr Roozendaal to assist (W/S [81(b)]). Counsel submits that in the final part of the examination where the Commissioner asked questions about Streetscape "…the Commissioner made it clear that it accepted Roozendaal had done nothing to assist Moses Obeid and where there was no suggestion that Moses Obeid requested any favours of Roozendaal" (W/S [81 (b)]). 3. It was not suggested to Roozendaal that he knew any Obeid family member or entity had contributed $10,800 to the purchase of the Honda vehicle. 4. That when the proposition was put to Mr Roozendall that he knew he was obtaining the Honda at a discount through the efforts of Moses Obeid, he responded that he had purchased the Honda vehicle from Mr Fitzhenry, and that he believed the amount he paid for the Honda vehicle was because of Mr Fitzhenry's position in the motor trade.
2. Counsel submits that when these matters are considered it is again apparent from the examination of Mr Roozendaal that the approach taken by the Commission, consistently with the approach taken in the private examination of Mr Roozendaal, was not an investigation into conduct that was corrupt conduct under ss 8 and 9 of the ICAC Act.
3. It is necessary however to analyse the whole of the evidence elicited from witnesses in the course of Compulsory Examinations and in the Public Inquiry in order to determine the focus and complexion of the investigation and to determine whether it could be said that the Commission's focus, at a particular time in the course of the investigation, was no longer relating to an allegation that a benefit was provided for the purposes of obtaining a favour. I will further refer to this evidence in overview below.

Principles to be applied when considering whether proceedings should be stayed

1. Counsel have referred to the principles to be applied in determining whether proceedings should be stayed. It is well established that the grant of a permanent stay of criminal proceedings is one that should be ordered only in an extreme case. In Jago v District Court of NSW (1989) 168 CLR 23 at [34] Mason CJ observed: "To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences"
2. The power of the Court to grant a permanent stay therefore arises from the inherent jurisdiction of the court to avoid an abuse of process. The touchstone in every case is fairness. The test involves a balancing process, having regard to the interests of the accused, as well as the community's right to expect that persons charged with criminal offences are brought to trial. The community expects a trial of an accused to be fair.
3. The community has an interest in the due administration of justice which extends to ensuring that the Court's processes are not abused, and that public confidence is maintained.
4. The onus of satisfying the Court that there is an abuse of process lies upon the applicant.
5. The applicant's case is that the Commission misused its powers in continuing the investigation, and that such breach of the ICAC Act goes to the root of the present proceedings. It is submitted that the prosecution case relies in its entirety, and fundamentally, upon evidence adduced from Moses Obeid under compulsion, being evidence that he would otherwise have had the common law right to remain silent on. Had the Commission acted in accordance with its statutory mandate it is submitted there would be no evidence and there would be no prosecution. It is submitted that for a prosecution to proceed under s 87(1) of the ICAC Act the examination conducted by the Commission must be according to law. It is submitted that this is so even if the acts of the Commission that were ultra vires were validated by the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW).
6. It is submitted that the ultra vires examination of Moses Obeid is a serious breach of the ICAC Act and one that the court should not sanction.

Arguments for the exclusion of evidence under sections 138 and 90 of the Evidence Act in overview

Relief sought under to Section 138

1. It is submitted that, for the same reasons which found the application to permanently stay proceedings, the answers given by Moses Obeid to questions asked have been improperly obtained. It is submitted that there has been an "impropriety" in that evidence has been compelled from Moses Obeid in circumstances where such compulsion was not authorised by legislation (W/S [103]).

Relief sought under to Section 90

1. It is submitted that there is a clear "unfairness" in using the alleged admissions Moses Obeid made in the context of the Compulsory Examination and the Public Inquiry in circumstances where he was compelled to give answers to questions when in truth it was his lawful right at the time of examination to refuse to answer the questions on the basis that the answer may tend to incriminate him. It is submitted that to use the evidence in a criminal trial in these circumstances would be unfair under s 90 of the Evidence Act (W/S [106]).
2. Additionally, it is submitted that the representations of Moses Obeid which are said to be false turn on assertions of Moses Obeid on the chronology of events, particularly the timing of events relating to an inquiry by Mr Triulcio for a car for his sister. It is submitted that the Commission encouraged the same evidence to be given by Moses Obeid at the Public Inquiry in circumstances where it was known to the Commission, from documentation it possessed, that the evidence could not be correct. It is submitted that in doing so the specific and stated purpose of the Commission was to demonstrate that Moses Obeid had given false evidence at his Compulsory Examination (W/S [109]).

DETERMINATION

1. The issues enlivened by the application, as conveniently summarised by the Crown in written submissions, are whether it was open to the Commission to form the opinion that the allegation implied that: 1. Mr Roozendaal may have improbatively exercised (or may be improbatively exercising, or may be about to improbatively exercise) (s 13(1)(a)(i)), his official functions (s 8(1)(b)-(d)), in a way that could involve a criminal offence (s 9(1)); 2. The accused may have engaged in conduct (or may be engaging or may in future engage in conduct) (s 13(1)(a)(i)), that could involve specified criminal conduct and that could [i.e., had the capacity to] adversely affect, either directly or indirectly, the probative exercise by Mr Roozendaal of his official functions (s 8(2)), in a way that could involve a criminal offence (s 9(1)); and/or 3. The accused or Mr Roozendaal may have engaged in conduct (or may be engaging or may in future engage in conduct) liable to allow, encourage or cause (s 13(1)(a)(ii)) Mr Roozendaal to improbatively exercise his official functions (s 8(1)(b)-(d)) in a way that could involve a criminal offence (s 9(1)) (Crown W/S [36]) (emphasis in original).

The initiation of the investigation

1. The Commission was required by Parliament to undertake an investigation into the allegation. The ICAC report notes the investigation came about when, in August 2011, Mr Peter Fitzhenry provided the Commission with information concerning the acquisition of a Honda motor vehicle. The report notes that Mr Fitzhenry alleged that, in approximately June 2007, Moses Obeid asked him to facilitate the acquisition of the vehicle for the Hon Eric Roozendaal MLC as a reward for favours that Mr Roozendaal had performed for the Hon Edward Obeid (Report p8). The Commission was required to engage in a fact-finding process in order to determine whether the circumstances of the obtaining by Mr Roozendaal of the Honda vehicle involved corrupt conduct within the principal functions set out in s 13 of the ICAC Act.
2. The Commission has the power to conduct Compulsory Examinations and a Public Inquiry in the course of its fact-finding process. These are however only two of the means available in ascertaining what findings of fact can be made from the available evidence. The decision to conduct Compulsory Examinations or a Public Inquiry in relation to particular witnesses may be made after particular pieces of evidence become known to the Commission. The fact that the focus of the Commission may vary in the course of carrying out an investigation may simply be the product of the timing of facts becoming known to the Commission. The fact-finding process may be an evolving one which may be dictated by facts established in the course of the Commission exercising its fact-finding process. The course of the investigation may change significantly. Whilst it may be inferred from the course of initial investigations, and from propositions put to witnesses, that a view may have been formed of particular facts, it does not follow, that where the ultimate findings of the Commission contain a contrary view, that the investigative processes of the Commission miscarried.
3. There is nothing that supports the proposition that the Commission is bound by a view it may have formed and identified at the outset or in the course of a particular stage of the investigation, when deciding to continue the investigation. The ultimate findings of fact at the conclusion of an investigation would necessarily reflect an examination of the whole of the evidence obtained by the Commission. This is an important distinction to the processes involved in a criminal prosecution. In a criminal prosecution the Crown is required to identify its case with particularity at the outset. The "moving of the goalposts" by the Crown in the course of prosecuting its case may lead to an unfair trial. It must be kept in mind that the Commission is undertaking a fact-finding process and the Commission is not required to identify a particular case prior to making findings of fact at the conclusion of the investigative process. The Commission is not required at the outset to present a formal case or to express a "case theory". Whilst the process of fact-finding may involve putting to a witness a particular view of the facts, there is no requirement that the Commission do so. The view of the facts may vary in the course of the investigative processes and what is relevant is whether the jurisdictional prerequisite under s 13 has been established to authorise the commencement of and the continuation of the investigation throughout the stages of the investigation carried out.
4. Further, the question as to whether the facts found establish that conduct engaged in could constitute a criminal offence may not be readily answered until findings of fact are made based upon a consideration of the whole of the evidence obtained. These are important matters to be kept in mind when considering the applicant's submission that the complexion of the investigation changed at a particular point in the investigation and that the continuation from that point was ultra vires.

The decision to commence the investigation: the jurisdictional prerequisite under section 13(1)(a) of the ICAC Act:

1. As I have just noted, Mr Fitzhenry asserted that Moses Obeid asked him to facilitate the acquisition of a Honda motor vehicle for the Hon Eric Roozendaal MLC as a reward for favours that Mr Roozendaal had performed for Moses Obeid's father, the Hon Edward Obeid MLC (as he then was). The ICAC report, under the heading "Why the Commission investigated", and having noted the Commission's functions specified in s 13(1)(a) of the ICAC Act, stated (at page 8): "The allegation in this matter was serious and could constitute corrupt conduct within the meaning of the ICAC Act. If Mr Roozendaal accepted a benefit as a reward for exercising his official functions in favour of Edward Obeid Sr or members of his family, or as an inducement for Mr Roozendaal to show favour in carrying out his official functions to Edward Obeid Sr or members of his family, Mr Roozendaal's conduct could amount to corrupt conduct, as it could involve conduct that could adversely affect, either directly or indirectly, the honest or impartial exercise of Mr Roozendaal's official functions under s 8(1)(a) of the ICAC Act. For the purpose of s 9 of the ICAC Act, his conduct could fall within s 9(1)(a), on the basis that it could constitute or involve a criminal offence, namely the common law offence of misconduct in public office and an offence of corruptly receiving a benefit under s 294B(1) of the Crimes Act 1900 ("The Crimes Act")."
2. In my view, at the stage the decision was made to commence the investigation, there was sufficient material before the Commission to exercise its functions under s 13(1)(a), including the assertions of Mr Fitzhenry, and the complexity of the circumstances of the transfer of the Honda vehicle to Mr Roozendaal. In my view, it was open to the Commission to have formed the opinion that the allegation implied that acts amounting to corrupt conduct could have adversely influenced the probity of the exercise of Mr Roozendaal's official functions. In my view, the judicial prerequisite for the commencement of the investigation has been established and was authorised under s 13 of the ICAC Act.

The argument that from a particular point in the investigation the Commission's continuation of the investigation was ultra vires.

1. Counsel for the applicant argues that whilst the Commission recited a foundation for its investigation that, from a particular point, the investigation did not "in fact" proceed upon the basis of the asserted jurisdictional prerequisite, and from that point the Commission was acting ultra vires. The Crown challenges the submission and argues that, consistent with Knightsbridge [at 32], it is not necessary for the court to consider subsequent developments in the Commission's investigative process if the judicial prerequisite has been established at the time the investigation was initiated.
2. The summons issued to Moses Obeid to attend for a Compulsory Examination stated: "The Compulsory Examination is being conducted for the purpose of an investigation of an allegation or complaint that in 2007, the Hon. Eric Roozendaal MLC was given a financial benefit by Moses Obeid, a Honda CR-V motor vehicle, in return for Mr Roozendaal exercising his official functions in favour of Moses Obeid and/or Edward Obeid"
3. Counsel for the applicant argues that, upon analysis of the evidence available to the Commission at this early stage, the evidence was insufficient to found the continuing investigation. Counsel for the applicant argues that when the available evidence, including the evidence disclosed in Compulsory Examinations prior to the issue of the summons to Moses Obeid is considered that, apart from the assertions of Mr Fitzhenry, the evidence does not establish the giving of any specific benefit or favour by Mr Roozendaal, nor did the evidence available to the Commission disclose what official function Mr Roozendaal could have exercised. Consequently, in the absence of such evidence, the continuing investigation was said to be ultra vires.
4. Whilst it might be said that in these initial stages of the investigation the evidence did not reveal precisely any benefit nor any official function exercised by Mr Roozendaal in favour of Moses Obeid or the Obeid family business interests, in the course of the Compulsory Examination of Eric Roozendaal he was questioned about whether his discussions or any decision made in his official capacity touched upon the business interests of Moses Obeid and the Obeid family, and whether at the time he obtained the Honda vehicle he perceived any impropriety in the means of procurement of the Honda Vehicle. It can readily be inferred from the questioning of Mr Roozendaal that the investigation was concerned with whether Mr Roozendaal, at the time he received the Honda Vehicle, was in a position to benefit the Obeid business interests and whether Mr Roozendaal exercised his official functions in favour of the Obeid business interests.

The case of the applicant that the investigation could not have proceeded in the absence of any evidence of the giving of a benefit constituting a criminal offence within the meaning of s 249B(2)

The argument that the recipient of the benefit, Mr Roozendaal, must be aware the accused is giving him the benefit

1. Counsel for the applicant submits the conduct of Moses Obeid could not constitute or amount to a criminal offence as required by s 9(1)(a) of the ICAC Act. It is submitted Moses Obeid did not "give" or "offer to give" the "agent", Mr Roozendaal, a "benefit" within the meaning of s 249B of the Crimes Act. Significantly, it is argued the agent must be aware that the accused is giving them the identified benefit. It is submitted that an agent cannot unknowingly receive a secret commission or benefit. It is submitted that, as far as Mr Roozendaal was concerned, the Honda vehicle was coming from Mr Fitzhenry, and that Moses Obeid was simply putting him in touch with a friend. Counsel points to the findings of the Commission that (at p28): "Mr Roozendaal paid $34,000 for the vehicle. Therefore, he obtained a benefit, through the actions of Moses Obeid, of $10,800. The Commission finds that Moses Obeid at all relevant times intended that Mr Roozendaal should receive such a benefit and procured that benefit for him"
2. Counsel submits that if the benefit was the payment of $10,800 that that could only have been a benefit if it was communicated to Mr Roozendaal. Counsel submits however that was not the case and submits that the Commission has proceeded on a misconception as to what was required for an offence under s 249B(2) and wrongly concluded that Moses Obeid could give Mr Roozendaal a benefit unbeknownst to Mr Roozendaal.
3. Counsel submits the evidence is clear that Moses Obeid did not "give" Mr Roozendaal a car; that the car was not provided by Moses Obeid and that, at its highest, Moses Obeid merely assisted to facilitate Mr Roozendaal's purchase of the car from Fitzhenry for $34,000 (W/S [51]). Accordingly, to the extent that the car is the "benefit" relied upon, it was not one "given" to Roozendaal by Moses Obeid.
4. The alternative formulations of the "benefit" were that Mr Roozendaal was provided with either (a) a vehicle discounted by $10,800; or (b) the payment of $10,800 towards the purchase. The objective evidence establishes that, whilst the vehicle was purchased for $44,800 by Challenge Investments, the difference between the original price and the $34,000 paid by Mr Roozendaal was paid by an Obeid entity. Counsel submits however that the problem with these formulations is that Mr Roozendaal was never told that $10,800 had been paid, and the Commission never suggested otherwise. The evidence of Mr Roozendaal was that he understood the received a fleet discount available to motor traders and that Moses Obeid had provided access to a motor trader, namely, Mr Fitzhenry.
5. Counsel submits that the Commission's report did not clearly identify the "benefit" relied upon nor explain how it was "given" by Moses Obeid. As I have just noted, the report notes that "[Mr Roozendaal] obtained a benefit, through the actions of Moses Obeid, of $10,800" (ICAC report p28)". When further discussing the role of Moses Obeid, the report notes "[Mr Obeid] provided a $10,800 benefit to Mr Roozendaal" (ICAC report p33). Counsel submits that the Commission did not adopt the statutory language in s 249B(2) and that the findings are "inherently ambiguous" (W/S [53]). Counsel submits that in any event the offence cannot be committed where Mr Roozendaal was never aware that a $10,800 benefit had been paid.
6. Counsel submits that secondly, even if it is assumed there was a giving of a benefit, that the benefit could not be "corrupt conduct" within the meaning of s 8 of the ICAC Act in circumstances where it did not have the capacity to "adversely affect" the honesty or impartiality of Mr Roozendaal's performance of his duties. Counsel submits that the Commission wrongly proceeded on the premise that "…the mere giving of a benefit by Moses Obeid with the requisite intention ipso facto was sufficient to establish the offence under s 249B(2) and therefore was within power to investigate". Counsel submits that this approach is contrary to the decision in Mehajer (W/S [55]).
7. Counsel submits, thirdly, that any giving of a benefit could not be said either (W/S [57]): 1. To satisfy either s 249B(1)(a)(i) or (ii), namely, as having been offered as "an inducement or reward" for action or favour "in relation to the affairs or business of the agent's principal"; or 2. To satisfy s 249B(2)(b), namely, as being a "receipt… of which would in any way tend to influence the agent" to show or not show favour or disfavour to any person "in relation to the affairs or business of the agent's principal".
8. Counsel submits that at no time was it put to Mr Roozendaal that he did, agreed to do, or was asked to do any favours for the Obeid family, nor was he challenged about his evidence that he had never made any decision which touched upon the business interests of either Edward Obeid or Moses Obeid. In particular, it is submitted, he was not challenged when he said that whilst he was aware the Streetscape business of Moses Obeid was involved in a tender with the RTA, he had no sphere of influence in relation to the tender process. Further, if it was the case that Roozendaal was not aware that the benefit was provided by Moses Obeid, or the benefit was provided for nefarious reasons, then it could not be said the benefit had been provided either "as an inducement or reward" for something or be something objectively capable of tending to influence Mr Roozendaal. Consequently, it is argued that the premise of the investigation was "fatally flawed" (W/S [59]).

The Crown submissions in response to the contention of the applicant that if the benefit was the payment of $10,800 that that could only have been a benefit if communicated to Mr Roozendaal.

1. The Crown submits that the requirement of "corruptly gives" in section 249B(2) is satisfied, as the Chief Justice indicated in Mehajer, by the fact of nondisclosure of the benefit to the principal. The Crown points to the fact that Mr Roozendaal did not disclose any benefit (W/S [82 - 83]).
2. The Crown submits, relying on the decision in Jamieson, that it is the intention or belief of the person giving the benefit at the time of giving that benefit which is relevant to determining whether the act of giving was done "corruptly"; that the relevant intention of the person giving the benefit is that "…it's receipt should influence a person, being an agent… to show favour to the giver" (Jamison at 884).
3. The Crown further points to the judgement of Bathurst CJ in Mehajer where His Honour noted (at [64]]): "Therefore, the requisite mental element for an offence under s 249B(1)(a) or (2)(a) of the act… Is that the corrupt benefit is received, in the case of s 249B(1)(a), or given, in the case of (2)(a), as intending it as an inducement or reward on account of one of the purposes referred to in subs (i) and (ii) of s 249B(1)(a) or s 249B(2)(a)."
4. As I have noted, Bathurst CJ further referred to the requisite state of mind noting that the state of mind of the recipient of the benefit is not relevant to an offence under s 249B(2)(b) (at [100]-[101]): "The words in s 249B(2)(b) of the Act, "would in any way tend to influence the agent", invite attention to the question of whether the payment would have that tendency, not that in fact it operated on the agent either pre-disposing him to show favour or in fact causing him to show favour. Rather, the payment has to be one which objectively speaking would have that tendency whether it influenced the agent or not. The construction proposed by the appellant would mean that the commission of an offence under s 249B(2)(b) of the Act would depend on the state of mind of the recipient of the payment and not that of the person charged with the offence…"

Does an investigation of conduct of "grooming" or "priming" fall within the principle functions of the Commission under section 13(1)(a) of the ICAC Act

Is conduct of "grooming" or "priming" sufficient to amount to a criminal offence, in particular an offence under section 249B(2) of the Crimes Act 1900.

1. At the commencement of the Public Inquiry, Counsel Assisting said that the Public Inquiry would include whether the benefit given (said to be a gift of $10,800) was to "…encourage Mr Roozendaal to make decisions which were favourable to the Obeid family" (CB 912-913). The report of the Commission indicates that in the course of the investigation consideration was given to whether there was a provision of a benefit by Moses Obeid in the expectation that Mr Roozendaal might provide future favours to Moses Obeid or to the Obeid business interests. Counsel for the applicant raises the question whether the Commission properly or fully raised or identified the possibility of future favours and whether, in any event, such conduct, which has been referred to as "grooming" or "priming", could amount to a criminal offence. An issue arises in the context of s 13(1)(a) whether such conduct, if based upon facts capable of being concluded by the evidence, could be conduct within s 13(1)(a)(ii), that is to say, "conduct liable to allow, encourage or cause the occurrence of corrupt conduct".
2. The ICAC report at page 8, having noted that the Commission's investigation examined whether Mr Roozendale had exercised or agreed to exercise his public official functions in favour of members of the Obeid business interests in return for a benefit, noted: "The Commission also examined whether Moses Obeid provided Mr Roozendaal with the gift or benefit as a reward for Mr Roozendaal having shown favour in his public official capacity to Edward Obeid Sr or members of his family, or as an inducement for Mr Roozendaal to exercise his public official functions in the future in a manner favourable to any Obeid business interest" (emphasis added) (ICAC report p8).
3. Further, the Commission noted: "It was useful for Moses Obeid to be in a position in which he could seek a favour from a minister, or in which the minister owed him a favour. The Commission has taken into account the varied nature and extent of the Obeid business interests in New South Wales. Moses Obeid would have reasonably anticipated that other matters involving his or other Obeid business interests might arise from time to time and that it would be useful to seek Mr Roozendaal's intervention, in his role as a minister, in order to obtain a resolution of those matters favourable to Obeid business interests". (ICAC report p33).
4. The Commission went on to make the following finding (at page 33): "Taking all of these matters into consideration, the Commission finds that Moses Obeid provided a $10,800 benefit to Mr Roozendaal as an inducement for Mr Roozendaal to show favour to Obeid business interests in the exercise of his official functions, or the receipt of which benefit would tend to influence Mr Roozendaal to show favour to Obeid business interests in the exercise of his public official functions. In the Commission's view this was Moses Obeid's sole purpose in providing the benefit"

The findings of the Commission: The inducement for Mr Roozendaal to show favour to Obeid business interests in the future.

Was this the opinion of the Commission which founded the determination of the Commission to undertake the investigation and continue the investigation?

1. In the course of the Compulsory Examination and the Public Inquiry, Mr Roozendaal was questioned about discussions touching upon the dealings of Moses Obeid and other Obeid family businesses. The questioning was directed to ascertain whether in his position he was able to afford a benefit to the business interests of Moses Obeid or the Obeid family business entities. These areas explored by the Commission in both the Compulsory Examination stage and in the Public Inquiry are consistent with the Commission undertaking an investigation into an allegation that the discounted price of the Honda vehicle of $10,800, which was paid by Moses Obeid, was in return for Mr Roozendaal providing a benefit in the course of exercising his official functions in the future.
2. Mr Roozendaal was questioned whether he perceived any impropriety in the circumstances in which the transaction to purchase the Honda vehicle occurred, including the extent of involvement of Moses Obeid, the discounted purchase price, and circumstances in which he collected the vehicle. In doing so the Commission investigated the business interests of Moses Obeid and investigated Mr Roozendaal's knowledge of the business interests of the Obeid family, and whether he had discussed those business interests with Moses Obeid. In overview, the examination included: 1. Streetscape: Moses Obeid was examined concerning the business entity, "Streetscape", and an issue concerning the use of his intellectual property by the RTA and the suggestion that the RTA was stealing intellectual property relating to street poles. Moses Obeid was questioned about conversations with Mr Roozendaal concerning these issues with Streetscape. Moses Obeid was questioned about the necessity for such conversations, and he was asked whether he hoped by doing so that Mr Roozedaal would provide assistance. Moses Obeid denied that was so, claiming that he ultimately complained to the opposition. The examination of Moses Obeid touched upon the benefit being provided to Mr Roozendaal with the expectation of a future advantage in Mr Roozendaal bringing to the RTA his concerns and the possibility that Mr Roozendaal may investigate those concerns within the RTA. Mr Roozendaal was questioned about the discussions about the difficulties being experienced by Streetscape and whether he was in a position to assist in the exercise of his official functions. It was put to Mr Roozendaal that he would have known that Moses Obeid was speaking to him directly about a matter in which he had a personal financial interest and Mr Roozendaal agreed that was so. When asked why he did not discontinue the conversation Mr Roozendaal said that upon Moses Obeid making the complaint, he referred the matter back to the RTA. In the course of questioning about the timing of the conversation with Moses Obeid, Mr Roozendaal conceded that it was probable this conversation occurred before he obtained the Honda vehicle. 2. Lake Cathie: The Commission investigated conversations between Edward Obeid and Mr Roozendaal relating to the development of Obeid property at Lake Cathie which was valued at $10 million. The questioning of Mr Roozendaal related to a meeting attended by Mr Roozendaal, who was then the Minister for Roads, and another member of Parliament, about upgrading part of the Pacific Highway which would have advantaged the Lake Cathie development. Moses Obeid was examined about a substantial development at Lake Cathie and questioned about the possibility Mr Roozendaal would assist. 3. Circular Quay leases: Mr Roozendaal was questioned about conversations with Edward Obeid concerning leaseholders at Circular Quay at a time when Mr Roozendaal was Minister for Ports and Waterways in 2005/6. At the time the Sydney Harbour Foreshore Authority was considering the termination of several Circular Quay leases. The Obeid family held interests in certain leases at Circular Quay.
3. Having considered the nature of the questions asked at the Public Inquiry, I am of the view that the investigation was continuing to be concerned with the possibility of conduct by Moses Obeid amounting to corrupt conduct in that a benefit was provided to secure a favour from a Minister of the Crown in the exercise of official functions. The examination at this stage of the investigation indicates that the Commission was concerned that facts existed concerning the provision of a benefit sufficient to imply that corrupt conduct, or conduct liable to allow, encourage or cause corrupt conduct may have occurred, may be occurring or may about to occur that could amount to a criminal offence.
4. I am of the view, having considered the material available to the Commission at this time, that the jurisdictional prerequisite under s 13 of the ICAC Act was made out and permitted the Commission to exercise its functions. The matters to which I have just referred in overview support a conclusion that the Commission was continuing to investigate, at this later stage of the investigation, whether the allegation of the provision of a benefit could amount to corrupt conduct involving a future favour being provided by Mr Roozendaal to the Obeid business interests in the exercise of his official functions. The questions asked of Mr Roozendaal about these Obeid business interests continued beyond the point identified by counsel for the applicant where the Commissioner intervened in questioning by counsel for Mr Roozendaal which it is argued supports a conclusion that the complexion of the investigation changed and was not, in fact, consistent with the Commission's asserted purpose, and that the continuing investigation was ultra vires.
5. Whilst it could be said that the emphasis or the direction of the investigation developed or moved away from the question of whether Mr Roozendaal was knowingly engaged in corrupt conduct, the investigation continued to relate to and was concerned with whether there was a benefit provided or potentially able to be provided by a Minister of the Crown who received a significant financial benefit in the payment of $10,800 towards the purchase of the Honda vehicle. There were a number of areas in which the Compulsory Examination and the Public Inquiry were focused to which I have referred in overview. These include the examination of the steps taken by Moses Obeid in the procuring of the Honda vehicle which involved a number of stages. I have set out in overview the instructions given to Mr Fitzpatrick and to the history relating to the preparation of documentation where there was a change in particulars relating to description of the purchaser.
6. Counsel for the applicant submits that in the analysis of whether the investigation carried out "in fact" related to a matter involving corrupt conduct, enabling the authority to investigate the allegation under section 13(1) of the ICAC Act, that a considerable proportion of the investigation related to the mechanics of the transfer of the vehicle and the movement of monies in payment for the vehicle and can be put to one side. There is merit in the submission that the mechanics of the provision of the vehicle occupied considerable time. Both the circumstances concerning the transfer of the vehicle and the movement of monies in payment for the vehicle are however unusual. The history of both the number of steps in the transfer of title to Ms Roozendaal, including the registration of the vehicle in the name of Renata Re, and the transfer of registration from her to Ms Roozendaal, and the complex movement of money through various entities, including entities controlled by the Obeid family could not be said to be a straightforward transaction. The ICAC report noted that the complexity of the transfer and payment of the vehicle "…is strongly suggestive of a labyrinth plan to disguise what was occurring" (CB 1331). It does not follow that because a significant proportion of the investigation related to examining the minutiae of whether the transfer and payment that such a course was not relevant to any question whether there was corrupt conduct. In determining whether there was corrupt conduct it was necessary for the Commission to look in detail at the circumstances in which a Minister of the Crown took possession of a new vehicle at a discounted price where, at the time he took delivery of the vehicle, he made no payment towards the vehicle, and where the evidence suggested that there may have been attempts to disguise the initial registration of the vehicle, and where the complex movement of monies in payment of the vehicle may have been undertaken in order to disguise the source of the payment, and, in particular, the payment of $10,800 by Moses Obeid towards the purchase price. In examining the movement of monies between various entities, the Commission ultimately noted in its report that the purchase price of $44,800 was made up of payment by the Roozendaals of $34,000, and that the balance of $10,800 was paid by the Obeid Corporation, a company that ostensibly had no interest in the vehicle. The report notes "on this analysis, the $10,800, at least prima facie, was a gift by the Obeid Corporation to the Roozendaals" (CB1332). In my view, the detailed examination of the "mechanics" of the transaction was a legitimate course of investigation in determining whether there was corrupt conduct.
7. It must be kept in mind that the process of examining the minutiae of the transfer and payment throughout the investigation was against the background of the assertions by Mr Fitzhenry to the effect that Moses Obeid had said that the vehicle was being obtained for Mr Roozendaal in return for favours that Mr Roozendaal had done for Edward Obeid (CB 71 at [5]). Moses Obeid had significant involvement in the instructions given to Mr Fitzhenry and the facilitating the transfer and was also involved in the provision of the $10,800 through Obeid business entities. When the questioning in both the Compulsory Examinations and at the Public Inquiry are analysed, it can be seen that that questioning was directed to what instructions were given to them and what was known by these witnesses involved in the transfer and financing of the purchase, and of the conduct of Moses Obeid in facilitating the procuring of the car, and its ultimate provision to Mr Roozendaal. The fact that the focus of questioning may have changed does not in itself indicate that the focus of the investigation had changed beyond the consideration of whether the evidence established corrupt conduct and that therefore the continuing investigation was ultra vires. Any change in emphasis may be readily understood in terms of the not unusual evolving nature of investigations of this kind.
8. Ultimately, the Commission noted that having considered the detailed steps undertaken by Moses Obeid in the acquisition, transfer and payment of the vehicle (CB 1332-1333) that: "Moses Obeid's actions in attempting to disguise the fact that Mr Roozendaal was obtaining a benefit, and that he or any Obeid business interest was involved in the provision of that benefit, indicates that he appreciated that impropriety was involved in his actions in conferring a benefit upon Mr Roozendaal"

Determination: Is it an element of an offence under section 249B(2) of the Crimes Act that the recipient of the benefit knows the giver of the benefit is acting corruptly?

1. As I have earlier noted, in Mehajer at [64] Bathurst CJ observed that the words in s 249B(2)(b) of the Crimes Act "would in any way tend to influence the agent", …invite attention to the question of whether the payment would have that tendency, not that in fact it operated on the agent either pre-disposing him to show favour or in fact causing him to show favour. Rather, the payment has to be one which objectively speaking would have that tendency whether it influenced the agent or not". His Honour noted that the section does not depend on the mind of the recipient, and rather is concerned with the state of mind of the person charged with the offence. The state of mind of the alleged recipient, Mr Roozendaal, forms no part of the elements of the offence under s 249B(2). I do not accept the submissions on behalf of the applicant that the lack of knowledge of Mr Roozendaal is relevant to whether the accused "could" have committed an offence under s 249B(2)(b). Further, I do not accept the submission that it is an element of s 249B(2) that there must be some lack of honesty or probity or lack of partiality on the part of a public official in the exercise of an official function.
2. I am ultimately of the view that a finding by the Commission that there was a lack of knowledge of Mr Roozendaal about Moses Obeid's alleged corrupt conduct in providing the benefit does not undermine the opinion held by the Commission as to the commission of an offence under s 249B(2) by Moses Obeid as a giver of the benefit. I am of the view that the Commission was properly entitled to investigate the allegation based on an opinion that the evidence available to the Commission implied that Moses Obeid may have corruptly given a benefit to Mr Roozendaal with a corrupt intent on the part of Moses Obeid and that this benefit may have had the objective tendency to influence Mr Roozendaal to show favour.
3. Whilst in the course of Mr Roozendaal's evidence the Commissioner indicated a view concerning Mr Roozendaal lack of knowledge of the alleged benefit provided by Moses Obeid, and the ultimate finding of the Commission was that there was insufficient evidence to support a finding that Mr Roozendaal knew about the financial transactions, the Commission noted in its report "It has been difficult for the Commission to uncover the "full truth" about Mr Roozendaal's involvement in and knowledge of the transactions that led to the purchase of the car on his behalf" (ICAC report p27). It does not follow that from the ultimate findings of the Commission in relation to Mr Roozendaal's knowledge of the alleged corrupt benefit provided by Moses Obeid, that the continuation of the investigation by the Commission was ultra vires. The question remains whether the functions exercised by the Commission throughout the investigation were within the principal functions set out in s 13 of the ICAC Act.
4. It could be said however, based on the circumstances established by the evidence it was open to the Commission to find that Mr Roozendaal was aware that there was a benefit given by Moses Obeid. Such a conclusion can be based upon the evidence that Mr Roozendaal was aware of a number of steps undertaken by Moses Obeid in arranging for the provision of the car, which he knew was obtained at a discounted price.

Determination: The circumstances considered were enough for the Commission to have formed the opinion that the circumstances implied corrupt conduct

1. In order for the Commission to exercise its functions, the jurisdictional pre-requisite imposed by s 13(1) requires the Commission form an "opinion" that the allegation or complaint made to it "or any circumstances" are sufficient to "imply" that corrupt conduct or conduct liable to allow, encourage or cause corrupt conduct "may have occurred", "may be occurring", or "may be about to occur". Further, that the conduct is capable of constituting or involving a criminal offence, and which "adversely affects", or that "could adversely affect". The Commission found that for the purposes of s 9 of the ICAC Act the relevant offence was an offence under s 249B(2)(b) of the Crimes Act, an offence where a person "corruptly gives" a benefit. As I have noted, it is not necessary for the purposes of the element "corruptly gives" in an offence under s 249B that the recipient, Mr Roozendaal, knew of the full nature and circumstances of the benefit. I accept the submission of the Crown that the term "corruptly gives" is a causal element and part of the actus reus (T 84.35).
2. The applicant challenges the processes adopted by the Commission in the course of the investigation and argues that the investigation was ultra vires. In my view, here the circumstances were sufficient to provide the jurisdictional prerequisite under s 13 and for the Commission to have formed the opinion that the allegation implies that conduct may have occurred (or may be occurring or may be about to occur) that is capable of constituting or involving a criminal offence under s 249B(2), and which "adversely affects", or that "could adversely affect" the exercise of Mr Roozendaal's official functions in the sense of having an effect on the probity of the performance of his official functions.
3. There is no requirement that before an investigation commences that all facts concerning the conduct said to involve corrupt conduct must be known. Here however there was before the Commission a body of evidence capable of supporting a finding of fact that Moses Obeid provided a benefit to Mr Roozendaal. The evidence includes more than Mr Obeid putting Mr Roozendaal in touch with Mr Fitzhenry. The transfer of $10,800 towards the purchase price of the vehicle must be looked at in the context of other evidence of the steps undertaken by Moses Obeid in facilitating the procurement of the vehicle.
4. The evidence of Mr Roozendaal at the Compulsory Examination and at the Public Inquiry was that Moses Obeid offered to assist in the purchase of a vehicle through his contact Mr Fitzhenry; that Mr Roozendaal told Moses Obeid about the type of vehicle he was looking for; that Moses Obeid told him that he had found a Honda vehicle that was close to new ; that Moses Obeid had given him the price of $34,000, and that Mr Roozendaal thought that that was a good price as he was of the understanding that the type of Honda vehicle would be worth well over $40,000, and, further, that he would not have been able to secure the car at that price from a dealership.
5. The evidence of Mr Roozendaal was that Moses Obeid told him where to collect the car, and that he did not recall signing any documentation when he collected the car, nor did he make any payment on that date. Mr Roozendaal agreed that the circumstances of him collecting the vehicle were unusual and that at that time he had not paid any monies towards the vehicle and that the price of the vehicle was a price not available to any member of the public. Mr Roozendaal accepted that Moses Obeid was doing him a favour by helping him obtain the vehicle at a lesser cost. Mr Roozendaal said he recalled speaking to Mr Fitzhenry on one occasion, and that he had provided particulars as to the type of vehicle he wanted and the price range. He said it was Moses Obeid who told him the car had been located, and the price was $34,000. He said the only person he spoke to about the purchase was Moses Obeid, and that he was getting a good deal. The circumstances are consistent with Moses Obeid being the principal person in the provision of the benefit, being $10,800 towards the purchase price.
6. Other circumstantial evidence available included call charge records which are capable of supporting an inference that Moses Obeid was the person who was making the arrangements with Mr Roozendaal for the provision of the Honda vehicle. The involvement of Moses Obeid can be inferred from an examination of documentation prepared by the vehicle dealership, including documentation concerning the transfer of registration of the car. It can be inferred that such information could only have been provided to the dealership from Moses Obeid using particulars provided by Mr Roozendaal. The evidence available to the Commission is capable of supporting a finding of fact that, at all material times, Mr Roozendaal was dealing with Moses Obeid in the procurement and provision of the vehicle. The benefit received in connection with the provision of the car, being a discount of $10,800, had not been disclosed by Mr Roozendaal to the principal. It had not been disclosed as a gift or benefit under the gifts register.
7. Additionally, the Commission had evidence from a detailed examination of the "mechanics" of the provision of the Honda vehicle, that is to say the movement of monies through a complex series of transactions from which the Commission could form the view that the means of the transfer of the benefit was intended by Moses Obeid to disguise the giving of the alleged benefit.
8. It must be kept in mind, in assessing whether the Commission could have formed the opinion of the existence of corrupt conduct to properly found jurisdiction under s 13 of the ICAC Act, that Mr Fitzhenry had asserted that Moses Obeid said to him that "The car was to be bought for Eric because Eric had done a few favours for dad".

Further evidence capable of supporting the opinion that the circumstances known to the Commission implied corrupt conduct founding jurisdiction under section 13 of the ICAC Act

Evidence of the alleged provision of the benefit considered in the context of the potential for Mr Moses Obeid to obtain a favour from Mr Roozendaal in the performance of Mr Roozendaal's functions as a Minister of the Crown

1. As I have noted it is submitted on behalf of the applicant that it was patent at an early stage of the investigation that the Commission was not exercising any power to conduct an investigation, as the Commission was not investigating "corrupt conduct". As I have earlier noted, counsel for the applicant submits that at a point in time in the investigation the focus of the investigation changed, and that from that point the Commission was acting outside its jurisdiction. Having considered the arguments of counsel and having analysed the evidence elicited from witnesses in both Compulsory Examinations and at the Public Inquiry, I am of the view that the focus of the investigation at all times followed the opinion formed by the Commission that the allegation of the provision of a corrupt benefit could adversely affect the probity of Mr Roozendaal's official functions. I do not accept the submission of counsel for the applicant that the investigation was ultra vires as it was for the purpose of investigating conduct of Moses Obeid that did not amount to a criminal offence (other than, on the Crown case, an offence of giving false evidence to the Commission contrary to s 87 of the ICAC Act) and did not concern the "corrupt conduct" of Eric Roozendaal (W/S 47).
2. In reaching the conclusion that the focus of the investigation remained on the provision of the benefit to obtain a favour from Mr Roozendaal in the exercise of his official functions, I have particularly considered the examination of Mr Roozendaal concerning his discussions with Moses Obeid about Obeid businesses interests in the context of his functions as a Minister of the Crown in particular portfolios. The examination of Mr Roozendaal by Counsel Assisting explored in some detail the possibility of a connection between the provision of a benefit by Moses Obeid and favours that may have been provided or favours that may be provided in the future concerning the Obeid business interests. These questions were asked against the background of the examination of Mr Roozendaal about his knowledge of the benefit of a reduced price for the Honda vehicle being provided by Moses Obeid.
3. There is merit in the submission of the Crown that, when properly analysed, the Commissioner's interruption of the questioning of Mr Roozendaal by his counsel related to whether Mr Roozendaal had solicited a benefit. The questions asked by Counsel for Mr Roozendaal immediately following the interruption related to the question whether Mr Roozendaal had been offered any benefit by Moses Obeid or any member of the Obeid family in return for providing favours. The Commissioner did not interrupt this course of questioning, which is consistent with the fact that an allegation of the provision of a benefit to Mr Roozendaal in return for a future favour remained a central issue in the investigation. The further examination of Mr Roozendaal and other witnesses called, including Mr Moses Obeid, supports a conclusion the investigation involved the ascertaining the relationship between Moses Obeid and Mr Roozendaal in order to assess why Moses Obeid would be involved in arranging to purchase a vehicle for a Minister of the Crown, and subsidise the purchase, when Moses Obeid was not otherwise involved in any business relating to the procurement of motor vehicles.
4. The examination of Mr Roozendaal and Moses Obeid included detailed questioning concerning the discussion about the particulars of the vehicle sought and the processes of moving the transaction forward which involved unusual features where Mr Roozendaal took possession of the vehicle without paying for it, without signing any sale agreement and later paying $34,000 which was, as Mr Roozendaal conceded, at a price lower than that available to members of the public. Further, that the ultimate purchase price effectively included a subsidy of $10,800 paid by Moses Obeid at a time when Mr Roozendaal was a Minister of the Crown, and that the subsidy was paid against a background where there had been discussion between Mr Roozendaal and Moses Obeid about the business interests of Moses Obeid and business interests of the Obeid family.
5. In my view, when the questioning of witnesses is analysed, it is clear the Commission was exploring whether the benefit of the provision of the Honda vehicle at a reduced price was as a reward for favour given or could tend to influence Mr Roozendaal to show favour in the future in the exercise of his official functions.
6. Mr Roozendaal was examined in the Compulsory Examination and in the Public Inquiry in detail about his knowledge of the Obeid family businesses including Streetscape and future developments at Lake Cathie, when Mr Roozendaal was Minister for Roads, and Circular Quay leases in circumstances when Mr Roozendaal was the Minister for Ports. Mr Roozendaal was questioned by the Commissioner as to whether he could have made any recommendation in his department relating to businesses associated with Edward or Moses Obeid. Questioning relating to Streetscape involved detailed questions relating to what was referred to the "Flashing Lights" project, and that Moses Obeid's company, Streetscape, was tendering for a substantial government contract. Mr Roozendaal gave evidence that he had no involvement in the awarding of contracts, that there was a briefing paper sent to him, and that the process was dealt with internally at the RTA, and there was a probity auditor involved.
7. There was, however, significant questioning about a particular discussion between Moses Obeid and Mr Roozendaal concerning the failure of Streetscape to secure the RTA contract. The examination in the course of the Public Inquiry also turned to the property development Lake Cathie owned by the Obeid Corporation which required an upgrade to the roads in that area when Mr Roozendaal was the Minister for Roads. Whilst it might be concluded from this evidence that no favour could have been given by Mr Roozendaal in the future, the issue for determination here is whether it could be said that the Commission was acting outside its jurisdiction in proceeding with the investigation in the way it did. The detail of the questioning of Mr Roozendaal at the Public Inquiry, particularly by the Commissioner, is inconsistent with the submissions of counsel for the applicant that the focus of the investigations was to found a future prosecution against Moses Obeid for lying to the Commission and that the investigation was not concerned with "corrupt conduct". The analysis of the questions asked would support a conclusion that the questions were directed to the conduct of Moses Obeid and possible inferences concerning whether he intended that a favour might be obtained from an agent, Mr Roozendaal, from the giving of a benefit, amounting to corrupt conduct, and amounting to an offence under section 249B(2). This was consistent with the stated purpose of the investigation, particularly at the time of commencement of the Public Inquiry.
8. The allegation of the provision of a corrupt benefit was an appropriate matter for investigation by the Commission. The conduct of Moses Obeid is capable of establishing that he corruptly gave a benefit to Mr Roozendaal. The evidence to which I have just referred provided the jurisdictional prerequisite under s 13 enabling the Commission to form the opinion that the evidence implies that conduct may have occurred (or may be occurring, or may be about to occur) that is capable of constituting or involving a criminal offence, and which "adversely affects", or that "could adversely affect", the exercise of official functions in the sense of having an effect on the probity of the performance of that function.
9. In my view, having considered the evidence led in the Compulsory Examinations and the Public Inquiry, and other evidence available to the Commission, that the continuation of the exercise by the Commission of the functions under s 13 through these stages, and through to making findings and releasing its report, was not ultra vires. I am of the view that throughout the investigation the focus of the investigation was consistent with the Commission's statement of the asserted purpose of the investigation.
10. In coming to this conclusion, I have had regard to the requirement that at all times the Commission must exercise its functions within s13, and that it is necessary to consider whether the jurisdictional prerequisite has been established at each stage of the investigation. In doing so I have considered the submissions of counsel for the applicant, when taken to extracts of the transcript of proceedings, where it is said that the focus was contrary to the asserted purpose of the investigation.

The argument that the allegation is not capable of amounting to corrupt conduct which could adversely affect the exercise of official functions

1. I do not accept the submission of counsel for the applicant that the facts underpinning the investigation are such that the Commission could not have formed the opinion that the allegation concerned the probity of a public official or that the Commission adopted a "Cunneen type" interpretation to s 8 in relation to the meaning of "adversely affects".
2. Here the Commission was examining allegations or circumstances involving a benefit being provided to a Minister of the Crown where the provider of the alleged benefit was a person with business interests which may be impacted or advanced, directly or indirectly, in the course of functions being exercised by that Minister of the Crown.
3. In my view, the allegation was capable of forming the foundation for the opinion that conduct amounting to corrupt conduct, capable of amounting to a criminal offence, which could adversely affect the probity of the performance of an official function, may be about to occur.
4. In my view, it is implicit from the questioning of Mr Roozendaal in relation to his knowledge of the Obeid business entities and his discussion with Moses Obeid concerning those business entities, that the questioning was directed to determining whether it could be found as a fact that Moses Obeid intended by those discussions to realise a favour as a consequence of the provision of the gift; that, as a consequence of receiving the benefit, that Mr Roozendaal might improperly exercise his official functions in favour of an Obeid business interest. In my view, the questioning was based upon the Commission forming the opinion that Moses Obeid may have engaged in corrupt conduct which was capable of constituting a criminal offence which could adversely affect the exercise by Mr Roozendaal of his official functions.
5. There was sufficient material upon which such an opinion could be properly reached prior to exercising the functions that the Commission exercised here, and that it exercised in deciding to continue the investigation and taking the course that it did. I am of the view that the Commission established the jurisdictional prerequisite set out in s 13 prior to commencing the investigation and in deciding to continue through each of the stages of the investigation it undertook for the purposes of making findings concerning corrupt conduct.
6. That this was the opinion formed by the Commission prior to and in the course of the investigation is confirmed by the content of the ICAC report, where the foundation of and decision to proceed with Compulsory Examinations and the Public Inquiry are referred to.
7. The investigation here of the circumstances of the provision of the Honda motor vehicle in my view falls within s 8(2) of the ICAC Act. In my view, the Commission's investigation was properly authorised by the operation of s 13 of the ICAC Act. The investigation was therefore an investigation according to law. I am not of the view that at any time in the course of the investigation that the Commission was acting ultra vires.

The alleged corrupt conduct is capable of constituting a criminal offence under section 249B(2)

1. I have earlier referred to the principles set out in Mehajer as to the meaning of "corruptly gives" in s 249B(2). I am of the view the evidence of the provision of the Honda vehicle at a discount or the payment of monies towards the purchase is capable of amounting to the giving of a benefit under s 249B(2). Here, the relieving of the payment $10,800 of the total purchase price by Moses Obeid could be said to be the giving of a benefit to Mr Roozendaal.
2. I am of the view that the alleged conduct could constitute a criminal offence, being an offence under s 249B(2). I am of the view the facts found by the Commission as constituting corrupt conduct would, if the trier of fact were to accept them as proved beyond reasonable doubt, constitute an offence under s 249B(2).
3. I decline the application that the proceedings be permanently stayed.

Determination: Applications for the exclusion of evidence under sections 138 and 90 of the Evidence Act

1. The Applications for the exclusion of evidence of representations relied upon by the Crown: 1. The representations relied upon by the Crown (or, alternatively, the proceedings other than counts 1 and 5) be excluded under section 138 of the Evidence Act 1995 (NSW) (the Evidence Act); or 2. The representations relied upon by the Crown (or, alternatively, the proceedings other than Counts 1 and 5) be excluded under section 90 of the Evidence Act.

Section 138

1. I have found that the Commission's investigation was authorised by section 13(1) of the ICAC Act and was not ultra vires. It has not been established that the Commission at any time was acting improperly or in contravention of the ICAC Act.
2. I do not propose to exclude the evidence of the representations of the accused under s 138 of the Evidence Act.

Section 90

1. It is submitted that the evidence should be excluded "…having regard to the fact that what Moses Obeid is being prosecuted for are statements made effectively of a chronological account of events that happened, all in circumstances where the Commission had before them objective evidence which was deliberately withheld from the accused at the time of questioning" (T9.6).

Overview of the "chronological account" given by Moses Obeid

1. When giving evidence before the Commission, Moses Obeid advanced a chronology of events relating to the attempts by Mr Triulcio to procure the Honda vehicle on behalf of Mr Triulcio's sister, Renata Re, and his dealings with Mr Roozendaal leading to Mr Roozendaal taking possession of the vehicle. Essentially Moses Obeid said that it was only after a breakdown in the relationship between Mr Fitzhenry and Mr Triulcio, over the sale of a Mercedes vehicle owned by Rocco Triulcio, that he told Mr Roozendaal about the Honda vehicle. In the compulsory examination, Moses Obeid denied that in May 2007 he was aware that Mr Roozendaal was looking for a vehicle. He asserted that he first became aware that Mr Roozendaal was looking for a Honda vehicle after the accident involving Mrs Roozendaal on 17 May 2007 and he then referred Mr Roozendaal to Mr Fitzhenry.
2. At the Public Inquiry, the accused was again asked when he became aware that Mr Roozendaal was looking for a Honda vehicle. He again asserted that he first spoke to Mr Roozendaal about the availability of a Honda vehicle because a dispute had arisen between Mr Fitzhenry and Mr Triulcio about the value of Mr Triulcio's Mercedes vehicle. He again asserted that Mr Triulcio told him that, because of his dispute with Mr Fitzhenry, he did not wish to proceed with the purchase of the Honda vehicle for his sister. Moses Obeid again asserted that it was only then that he had contacted Mr Roozendaal and asked whether he was interested in the Honda vehicle.
3. At the Compulsory Examination, Moses Obeid was shown a bundle of financial documents relating to the payment of the vehicle. In the course of examination about his understanding of the chronology of events, it was put to him that he had earlier spoken to Mr Fitzhenry and asked him to source a black Honda CRV for Mrs Roozendaal. Moses Obeid denied that proposition. He again denied the proposition later in his evidence. Generally, the evidence of Moses Obeid at all times was that for Mr Roozendaal's purchase of the Honda vehicle arose only because of a dispute between Mr Triulcio and Mr Fitzhenry and his decision not to proceed with the purchase of the Honda vehicle for his sister.
4. At the time Mr Moses Obeid was questioned, the sales representatives of Peter Warren Auto had not given evidence concerning the creation and completion of documents relating to the procurement of the Honda vehicle.
5. Counsel for Mr Obeid submits that, prior to the Public Inquiry, the Commission was in possession of material including a number of critical documents and evidence that showed that the account provided by Moses Obeid either could not be or was unlikely to be factually accurate. Counsel points to the material available to the Commission establishing a chronology of events contrary to the account of Mr Moses Obeid. Counsel argues that, armed with that material, the Commission engaged in a serious course of unfairness in compelling Mr Moses Obeid to give evidence in circumstances where the Commission would have been aware that, should Mr Moses Obeid give the same evidence, that his account could not be right. Counsel argues the Commission was in possession of documents disproving the account, yet that they proceeded nonetheless without first informing Mr Moses Obeid of the content of that material.
6. Counsel submits that at the time, having given evidence at the Compulsory Examination, Mr Moses Obeid was "locked into an account for which he could not credibly depart" (T77.7). Counsel submits for the Commission to then adduce the same evidence again, despite having in their possession documents which they could have deployed at an earlier date, is the relevant characteristic of unfairness, and that the evidence should be excluded under s 90 of the Evidence Act.
7. It is the submission of counsel that part of the reason why the examination was conducted was to determine whether Mr Moses Obeid had lied in the Compulsory Examination, rather than to conduct an investigation properly seen as being one into corrupt conduct. In doing so it is submitted that the Commission used its powers to compel Moses Obeid to answer questions and overrode his right to silence.
8. Having considered the material before me and the arguments of counsel, I am not of the view that it could be said that the purpose of the Commission's investigations in the course of the Commission's Public Inquiry was to adduce evidence that the accused had given false evidence in his Compulsory Examination in order to secure evidence so that Mr Moses Obeid could be prosecuted for an offence under section 87 of the ICAC Act.
9. I am of the view that the questions asked of witnesses in the Public Inquiry were relevant to the investigation as to whether there was a conferral of a benefit by Mr Moses Obeid to Mr Roozendaal and whether there was conduct amounting to corrupt conduct.
10. I have considered the questioning of Moses Obeid during the Compulsory Examination and at the Public Inquiry. Moses Obeid gave an account in the Compulsory Examination of the sequence of events with some detail. The understanding the sequence of events was relevant to the question whether Moses Obeid was involved in providing a benefit to Mr Roozendaal by involving himself in the procurement of the Honda vehicle. His account of the steps he had undertaken, and the circumstances in which he took those steps, needed to be ascertained with some precision. In my view, having examined the questioning of Moses Obeid, the revisiting of his evidence given at the Compulsory Examination, as to the circumstances in which he took particular steps in the procurement of the Honda vehicle, was part of the matrix of facts that the Commission was examining both in relation to the steps undertaken but also the consideration of those steps in the context whether any benefit was given to Mr Roozendaal with the intention of obtaining favours from Mr Roozendaal in his capacity as a Minister of the Crown.
11. As I have noted, Mr Moses Obeid's account at the Public Inquiry was consistent with the account he had given earlier in the Compulsory Examination. He again asserted that the particular Honda vehicle, ultimately obtained by Mr Roozendaal, was purchased by Mr Triulcio for his sister who no longer intended to purchase the vehicle because of a falling out with Mr Fitzhenry. Mr Obeid gave a detailed account of the circumstances of the falling out and the circumstances in which Mr Triulcio decided not to proceed with the purchase. Mr Obeid said that after a series of phone calls he contacted Mr Roozendaal to offer him the vehicle.
12. Mr Obeid had been provided with a transcript of Mr Fitzhenry's evidence and he asserted that Mr Fitzhenry was deliberately misleading the Commission. Mr Obeid maintained that there were a number of Honda vehicles which were part of the series of events.
13. When giving evidence at the Public Hearing, Moses Obeid gave his evidence in a deliberate and detailed way, and again asserted the sequence of events as he had articulated in the Compulsory Examination. There was nothing in the complexity of the questioning nor in any particular vulnerability of Moses Obeid that could have impeded his otherwise apparently reasoned answers. He was legally represented at the Public Inquiry.
14. As the Crown has submitted, Mr Obeid had significant time to consider the answers that he had given at the Compulsory Examination between May and November 2012. On being provided with the documentation and other information, in the course of giving evidence at the Public Inquiry he did not retract his earlier evidence.
15. I am of the view that the fact that the Commission questioned Mr Obeid concerning the timing of steps he had undertaken whilst the Commission was in possession of material which contradicted the account, in the circumstances here, could not be said to be unfair such that the evidence should be excluded under s 90 of the Evidence Act. There is no evidence that the questions were directed to encouraging Mr Moses Obeid to give further false accounts in order to support a prosecution of Mr Moses Obeid for giving false evidence.
16. I do not propose to exclude the evidence of the representations of the accused under s 138 of the Evidence Act.

RULINGS

1. My orders in relation to the pretrial applications are as follow: 1. That the application that the proceedings (or alternatively the proceedings other than Counts 1 and 5) be permanently stayed is dismissed. 2. That the application that the representations relied upon by the Crown (or alternatively the proceedings other than Counts 1 and 5) be excluded under s 138 of the Evidence Act is dismissed. 3. That the application that the representations relied upon by the Crown (or alternatively the proceedings other than Counts 1 and 5) be excluded under s 90 of the Evidence Act is dismissed.

Amendments 17 August 2022 - A typographical correction was made to the Representation section of the cover page. 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: 17 August 2022