R v Obeid (No 9)

1. [1]

   On 22 April 2016, the Court heard argument on an application made by the State of New South Wales (the “State”) that the accused, Edward Moses Obeid, be denied access to certain documents placed before the Cabinet of New South Wales in 2007 concerning the adoption of a proposed Commercial Lease Policy (“CLP”) applicable to property owned by the Maritime Authority of New South Wales. The State contended that access should be refused on the basis that the public interest in preventing their disclosure outweighs the public interest in access being granted.

2. [2]

   For the reasons that follow, I uphold this claim in relation to some of the documents the subject of the application but reject it in respect of two documents which are briefly described below. In providing reasons for this conclusion, it is necessary to be circumspect in describing the content of any of the documents to avoid any inadvertent undermining of the interest that the State seeks to uphold. Further, given the discussion below of the evidence adduced at an aborted trial of Mr Obeid in February 2016, and that his retrial is due to commence on 6 June 2016, an interim non-publication order under s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) will be made preventing the publication of this judgment until further order. In the ordinary course, it is to be expected that the order will be lifted at the conclusion of Mr Obeid’s trial.

Background

1. [3]

   On 8 May 2015, Mr Obeid was arraigned in this Court on an indictment that charged him with one count of wilful misconduct in public office. Thereafter, various interlocutory applications were heard and determined. On 10 February 2016, Mr Obeid was arraigned before a jury panel on an amended indictment that charged him with that offence.

2. [4]

   On 24 February 2016, the jury were discharged prior to the closure of the Crown case: R v Obeid (No 7) [2016] NSWSC 132. The reasons for the discharge are immaterial to this application. A new trial date has been fixed for 6 June 2016.

3. [5]

   After the jury were discharged, the solicitors for the accused sought access to material held by the Independent Commission Against Corruption (“ICAC”) that was the subject of a prosecution disclosure notice served by the New South Wales Director of Public Prosecutions during 2015. The notice listed all, or at least most, of the material retained by ICAC in respect of the inquiry that led to this prosecution. After some debate as to whether that material was required to be made available to the accused, he caused a subpoena to be issued to ICAC. When the subpoena was called upon, ICAC did not object to the production of any of the material sought. Instead, various emanations of the State have objected to the accused being granted access to some discrete parts of the material retained by ICAC on the basis that they are either the subject of legal professional privilege or are Cabinet documents such that the public interest warrants the refusal of access. The former claims either have been, or are in the process of being, resolved by negotiation. This judgment deals with the latter claims. In respect of both sets of claims it is not contended that there was any form of “waiver”, if that were possible, by the production per se of the material to ICAC for the purpose of its investigation.

The Crown and Defence cases

1. [6]

   To determine whether the interests of justice warrant the granting of access to any of the documents, it is necessary to identify the matters in issue at the aborted trial. There is no reason to believe they will not be issues at the retrial.

2. [7]

   The amended indictment presented against Mr Obeid states as follows:

3. [8]

   A brief summary of the prosecution case is set out in R v Obeid (No 2) [2015] NSWSC 1380 at [15] to [22] (“Obeid No 2”) which should be read together with this judgment. As is clear from the amended indictment, the offence is alleged to have been committed between 1 August 2007 and 30 November 2007 and concerns Mr Obeid's alleged dealings with Mr Dunn, a senior employee of the Maritime Authority of New South Wales (“the Maritime Authority”) while Mr Obeid was a member of the Legislative Council of New South Wales.

4. [9]

   Prior to the discharge of the jury at the aborted trial, the Crown Prosecutor adduced evidence from the former Chief Executive Officer of the Maritime Authority, Christopher Oxenbould. Mr Oxenbould described the evolution of a proposed CLP applicable to property owned by the Maritime Authority from early 2005 until its adoption by Cabinet in November 2007. In summary, the various iterations of the CLP from March 2005 until August 2007 allowed some limited scope for existing commercial lease holders to negotiate a renewal of their leases upon their expiry, but the general tenor of the policy was to require such leases be the subject of a market based tender or an expression of interest process in which existing leaseholders could only participate on the same basis as new entrants. Mr Oxenbould stated that Minister Tripodi, who assumed responsibility for the Maritime Authority from February 2006, [1] supported this approach, although he, Mr Oxenbould, preferred a policy that favoured direct negotiations upon the expiry of an existing lease. [2]

5. [10]

   Mr Oxenbould stated that within the Maritime Property division of the Maritime Authority there was a strongly held view that the process of renewal for the Circular Quay leases, including the leases referred to in the amended indictment, was a special case compared with those addressed in the proposed CLP. In particular, this view was that irrespective of the terms of the CLP they should only be renewed by a process of competitive tender. [3] (The evidence does not suggest that this was conveyed to the Circular Quay lessees during the period 2005 to 2007.)

6. [11]

   Mr Oxenbould recalled that around mid-2007, the fate of the proposed CLP and the Circular Quay leases became linked. [4] He stated that in September 2007, a draft CLP favouring direct negotiations with existing lease holders was produced by the staff members responsible for progressing the CLP, namely Mr Low and Mr Dunn. [5] He said that this policy was approved by the Minister and then by Cabinet in late November 2007 with some immaterial revisions. The revised CLP was applied to the Circular Quay leases which led to the renewal of the leases at Circular Quay, including the tenancies referred to in the amended indictment.

7. [12]

   Mr Low also gave evidence at the aborted trial. He stated that he joined the Maritime Authority as General Manager of Ports in November 2006 [6] . He assumed responsibility for progressing the CLP. He recalled that in “[early] conversations the Minister was [in] favour of open tenders” [7] . He stated that at the direction of Mr Dunn a new draft of the policy was prepared which favoured direct negotiations over lease renewals rather than open tenders. [8] He recounted a conversation with Minister Tripodi in relation to a new iteration of the CLP which favoured direct negotiations as follows: [9]

8. [13]

   At the time the jury were discharged the Crown Prosecutor was yet to call Mr Tripodi. Mr Dunn had not given evidence before the jury but he had given evidence on a “Basha inquiry” in their absence (R v Basha (1989) 39 A Crim R 337). In that inquiry Mr Dunn stated that he was appointed as Deputy Chief Executive Officer of the Maritime Authority on 15 August 2007 and then General Manager, Maritime Property Division approximately one week later. [10] He reported to Mr Oxenbould, [11] and assumed responsibility for finalising the CLP. [12] Mr Dunn had previously been Director of Fisheries between 1999 and 2004. For some period during that time Mr Obeid was the Minister for Fisheries. Since that time Mr Dunn had met with Mr Obeid occasionally. [13]

9. [14]

   Mr Dunn stated that, either immediately before or shortly after he commenced working for the Maritime Authority, he received a call from Mr Obeid [14] . He said that Mr Obeid asked him to meet with a barrister, Paul Scanlan, who was the representative of the Circular Quay tenants who they felt they had been mistreated by the Maritime Authority. [15] Mr Dunn agreed that in the call Mr Obeid “did no more than or less than request [him] to meet with Mr Scanlan to hear their grievances” [16] . Mr Dunn and Mr Low then met with Mr Scanlan on 28 August 2007. He advised the then Minister, Mr Tripodi, that he had been contacted by Mr Obeid and asked to meet Mr Scanlan. Mr Dunn said that after he met Mr Scanlan he investigated the various matters that Mr Scanlan put to him on behalf of the Circular Quay lessees. [17] He said that he was not advised by Mr Obeid or anyone else that Mr Obeid or any member of his family had an interest in the leases “other than a belief by some of the Maritime staff that [one of the tenants] Mr Abood was name dropping Mr Obeid during conversations”, although he did not know that Mr Abood was related to Mr Obeid. [18] He stated that, if Mr Obeid’s interest had been disclosed, then he would have advised Mr Oxenbould and the Minister of the existence of a conflict of interest on Mr Obeid's part and referred to it in the material placed before Cabinet. [19]

10. [15]

    Mr Dunn was not pressed during the Basha inquiry on the reasons why he proposed a change to the CLP or reversed the approach that had previously been adopted with the Circular Quay lessees, except that he agreed that his “conclusion that there was substance based in what Mr Scanlan had represented to [him] was reached by virtue of [his] investigation and uninfluenced by Eddie Obeid’s request that [he] meet him” [20] .

11. [16]

    The elements of the offence of wilful misconduct in public office were enunciated in R v Quach [2010] VSCA 106; 201 A Crim R 522 at [46] per Redlich JA (Ashley JA and Hansen AJA agreeing) as follows:

12. [17]

    The aborted trial was conducted on the basis that with respect to element (1) the jury would be instructed that, as a matter of law, a Member of the Legislative Council is a public official (see Obeid v R [2015] NSWCCA 309 at [119] to 123]). Elements (2), (3) and (5) were said to be in issue. At the time trial was aborted no submission had been made as to whether there was evidence that might amount to a reasonable excuse or justification for Mr Obeid's intervention, so for the present element (4) can be put aside.

13. [18]

    At the very least it was apparent from Senior Counsel for Mr Obeid's opening and his questioning of the witnesses noted above that it was to be contended on Mr Obeid's behalf that, even if Mr Obeid's communication with Mr Dunn was unwise or perhaps “improper” because of his interest in the leases, it was nevertheless a minor transgression and had no consequential effect on either the progress of the CLP or the negotiations between the Maritime Authority and the lessees. Accordingly, I apprehend that at the retrial it will be contended that Mr Obeid's intervention in the negotiations was so minor in nature and effect that it neither amounted to misconduct (much less wilful misconduct) to satisfy element (3) but, even if it did, it did not merit criminal punishment so as to satisfy element (5).

The documents the subject of the claim

1. [19]

   The documents that were originally the subject of the claim for public interest immunity were set out in exhibit PM-1 to the affidavit of Paul Miller affirmed 19 April 2016. Only Tabs 1 and 5 of exhibit PM-1 were tendered as the accused’s application for access to the balance of PM-1 was not pressed. The documents behind Tab 1 related to a Cabinet proposal to adopt a commercial leasing policy in the period December 2005 to March 2006, which did not eventuate. The documents behind Tab 5 related to the Cabinet’s adoption of the (revised) CLP on 26 November 2007. Of these documents, the claim for public interest immunity was not pressed in relation to the bulk of them, including the relevant Cabinet minutes, much of the Cabinet correspondence and advice and, in the case of Tab 5, the record of Cabinet’s decision. This position was taken because either the contents of this material were ventilated during an ICAC inquiry or the documents have been provided to the accused as part of the process of prosecutorial disclosure.

2. [20]

   In the end result, the documents the subject of this application were reduced to the following. First, there are eight items of Cabinet correspondence in the period December 2005 to March 2006 relating to a proposal that Cabinet adopt a commercial leasing policy. [21] None of the authors of that correspondence are Crown witnesses. One of the authors gave evidence at the relevant ICAC inquiry.

3. [21]

   Second, there are six items of Cabinet correspondence relating to the Cabinet’s adoption of the commercial leasing policy on 26 November 2007. [22] The author of one item of correspondence is a Crown witness, namely, Mr Tripodi. The author of one of the other items of correspondence was a witness before ICAC, but is not a Crown witness. [23]

4. [22]

   Third, there is a memorandum constituting advice from within the Department of Premier and Cabinet concerning the proposal. [24]

5. [23]

   Mr Miller is the General Counsel of the Department of Premier and Cabinet. As part of his duties he has drafted Cabinet minutes, Cabinet submissions and records of Cabinet decisions. He has attended meetings as Secretary to the Cabinet in the absence of the Cabinet Secretary. In his affidavit he describes the process of Cabinet decision making including that of Cabinet subcommittees. He also describes the necessity for secrecy and confidentiality of the proceedings of Cabinet in a manner consistent with that discussed in the authorities. Mr Miller emphasised that such confidentiality promotes “an environment in which Ministers are free to provide to Cabinet all the information relevant to an issue on a frank and candid basis” (at [25]).

6. [24]

   Mr Miller also describes the various categories of documents included in exhibit PM-1, specifically “Cabinet minutes” being in effect a proposal for Cabinet, Ministerial Advice and Correspondence, “Cabinet advices” being advices prepared by the Department of Premier and Cabinet, Treasury advice to the Budget committee, records of Cabinet decisions and instructions to Parliamentary Counsel. It follows from [20] to [22] that only two of these categories are relevant, namely, Ministerial Advice and Correspondence and Cabinet Advices, although, as noted, some Cabinet minutes and records of Cabinet decisions concerning the CLP were either tendered at the ICAC inquiry or have been made available to the Accused.

7. [25]

   In relation to Ministerial Advice and Correspondence, Mr Miller stated that correspondence from Ministers to the Premier containing the views of individual Ministers on policies proposed in Cabinet minutes are made available to all Cabinet members and “treated the same way as a Cabinet submission” (at [40]). He stated:

8. [26]

   In relation to Cabinet advices Mr Miller stated:

9. [27]

   In Sankey v Whitlam [1978] HCA 43; 142 CLR 1 (“Sankey”) both Gibbs ACJ (at pp 45 and 46) and Stephen J (at pp 59 to 60) referred to the deference that should be afforded to the reasons advanced by a suitably qualified deponent for preserving the secrecy of Cabinet documents, although their opinion is not determinative. Accordingly I attach significant weight to the views expressed by Mr Miller in the above extracts and the balance of his affidavit. However, as Mr Miller acknowledges in his affidavit, he “is not in a position to depose to the public interest in the disclosure of the documents in these proceedings” which turns upon an assessment of their significance or potential significance to the prosecution of the accused.

10. [28]

    It was common ground on this application that the determination of the State’s objection to access was to be made in accordance with the common law, and not s 130 of the Evidence Act 2005 (NSW) which concerns the exclusion of evidence of matters of State. Section 131A of the Evidence Act operates to extend various provisions found within Divisions 1, 1A, 1C and 3 of Part 3.10 of the Evidence Act, including s 130, to most pre-trial applications for disclosure of documents. However it does not operate in the circumstance where the person objecting to the provision of the documents, which in this case is the State, is not the person required to produce the documents, which in this case is ICAC: State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 (“PTTC”) at [32].

11. [29]

    At common law, the approach to be adopted to the determination of a claim for public interest immunity was stated in The Commonwealth v Northern Land Council (1993) 176 CLR 604 (“NLC”) at 616 namely:

12. [30]

    Further in relation to a so-called “class claim”, the Court in NLC added (at 617):

13. [31]

    As stated, the claim for public interest immunity rests upon the status of the documents as Cabinet documents “regardless of [their] contents”. Each of NLC, Sankey and PTTC concerned Cabinet documents. In PTTC at [45]ff, Allsop P distilled a number of principles from Sankey and NLC concerning a public interest immunity claim in respect of such documents as follows:

14. [32]

    The documents the subject of this application do not record the “actual deliberations” of Cabinet such that the statement in NLC at p. 618 that “exceptional circumstances” would need to be demonstrated before access is granted is not apposite. However, communications between Ministers concerning Cabinet proposals and advice to the Cabinet nevertheless attract the protection of public interest immunity (Sankey at p 99 per Mason J). Further, the documents the subject of this application concern the formation of policy which is a factor weighing against disclosure, however their subject matter, namely the leasing policy of the Maritime Authority, is neither controversial nor contemporaneous. The outcome of Cabinet’s deliberations has been known for many years and, while it was not the subject of much evidence, the formation of the CLP was at least touched upon during an ICAC inquiry. Overall, and bearing in mind Mr Miller’s evidence, I accept that there is a public interest that weighs against the disclosure of the documents noted in [20] to [22], but that finding is based solely on their status as either communications between Ministers about a Cabinet proposal or advice to the Cabinet and not upon any particular aspect of the CLP or the content of the communications.

15. [33]

    Against this must be weighed the competing public interest in the administration of justice. Each of NLC and PTTC concerned applications for the disclosure of documents for use in civil proceedings. NLC concerned proceedings to set aside an agreement between a Land Council and the Commonwealth Government on the grounds of unconscionability. PTTC concerned commercial litigation between a state owned corporation and a private company. However these are criminal proceedings, the subject matter of the charge is maladministration of political office which is said to be connected to a Cabinet decision, a number of related documents that would ordinarily be the subject of a public interest immunity claim on the same basis are either part of the Crown case or have been disclosed to the accused and the documents are sought by the accused to aid in his defence. At a level of generality above a consideration of the contents of particular documents, these factors weigh significantly in favour of disclosure.

16. [34]

    In Sankey at p 42, Gibbs ACJ rejected the proposition that State papers were “absolutely protected from production” instancing a potential “great injustice … in cases in which the documents were necessary to support the defence of an accused person” (see also Alister v The Queen (1983) 154 CLR 403 at 414 per Gibbs CJ, and p 456 per Brennan J). In Sankey, Cabinet documents were sought to aid a private prosecution of a former Prime Minister and senior Ministers on conspiracy charges alleged to have arisen out of their conduct while in office. According to Stephen J, in such a case a number of “particular considerations” arose from the “unusual character” of the proceedings (at p 56) which his Honour described as follows:

17. [35]

    The emphasis in this passage on ensuring that persons who occupy high office are answerable for crimes they may have committed reflects the fact that Sankey concerned an attempt to access Cabinet documents to aid in a prosecution. As noted, the present case concerns an application by the accused to obtain documents for the purposes of their defence. However, at the very least, no more restrictive approach is warranted in such cases where the accused seeks access as opposed to the prosecution. Moreover, the above passage highlights what may be implicit in the balancing test that must be applied in such cases, namely, that where the very subject matter of criminal proceedings is the alleged corruption of the processes of government, especially at a Cabinet level, a claim for public interest immunity over documents pertaining to that process is that much harder to maintain.

Submissions

1. [36]

   The written and oral submissions made on behalf of the State comprehensively addressed the case law concerning claims for public interest immunity over Cabinet documents and the factors warranting access being denied in this case, which in turn reflected the matters raised by Mr Miller. I have in large part accepted its analysis and placed significant weight on Mr Miller’s affidavit although, as I have stated, care needs to be taken in weighing up the competing interests in a case where the subject matter of the prosecution is the alleged corruption of government processes.

2. [37]

   Further, while the State was armed with full knowledge of the contents and effect of the documents which enabled it to make detailed submissions in support of matters warranting a denial of access, understandably it lacked familiarity with the aborted trial and the accused’s case, which hampered its ability to address the public interest in favour of granting access. In its written submissions, the Crown focused on the terms of the amended indictment and the Amended Crown Case Statement (see Obeid No 2 at [10]) which refer to Mr Obeid’s interactions with Mr Dunn and Mr Dunn’s interactions with Mr Scanlan. The State submitted, inter alia, that none of the documents in respect of which access was sought refer to the accused, Mr Dunn or Mr Scanlan, or any meeting they attended. Accordingly, the State submitted that the public interest in the disclosure of the documents was low.

3. [38]

   The difficulty with this submission is that it overlooks element (5) of the offence of wilful misconduct in public office, which requires proof beyond reasonable doubt that the accused’s misconduct was serious and merited criminal punishment. The submission also overlooked Mr Oxenbould’s evidence that at some point the fate of the Circular Quay leases became bound up with the fate of the CPL. The former requires a normative assessment and it cannot be said that the boundaries of that assessment exclude a consideration of the causative impact of the alleged misconduct on the renewal of the Circular Quay leases (Obeid No 2 at [120]). The latter warrants some inquiry into the Cabinet process that led to the adoption of the CPL.

4. [39]

   The accused’s submissions suffered from the opposite limitation to the State’s in that he is completely familiar with the issues in the trial but, understandably, was unable to address the contents of the documents the subject of this application. His submissions noted that the Crown brief served on him included confidential Cabinet minutes, some Cabinet correspondence and Cabinet advice, and records of Cabinet decisions. He contended that the documents that are sought “are in the highest category of relevance to the real issues in dispute in the proceedings”, especially when the Crown proposes to call the former Minister who took the CLP to Cabinet, Mr Tripodi. He contended that the circumstances in which the CLP was developed, amended, submitted to the Minister, submitted to Cabinet and approved by Cabinet are relevant to a jury’s determination of each of the third to fifth elements of the offence set out in [16] above. Thus he submitted that, given the serious nature of the charge, the necessity to ensure a fair trial requires that he be granted access to the documents in question.

5. [40]

   It follows from the above that I accept the force of much that is submitted on behalf of the accused. However three matters should be noted. First, the documents the subject of this application do not concern the circumstances in which the CLP was developed, amended and submitted to the responsible Minister, but only the circumstances in which it was submitted to and approved by Cabinet. Second, as stated, at present I do not see that the fourth element of the offence of wilful misconduct in public office has any role to play. To date there has not been any attempt to identify any reasonable excuse or justification for Mr Obeid’s conduct. Third, I do not accept that every aspect of the development of the CLP is of significance to the prosecution case. Instead, what is significant is those aspects of the CLP that relate to the renewal of the Circular Quay leases without an open tender or a market-based expression of interest process.

Outcome

1. [41]

   Both parties stated that they were content for the Court to inspect the documents for the purpose of weighing up the competing interests. In Alister, Gibbs CJ stated that, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, “the Court must attach special weight to the fact that the documents may support the defence” and that, while a so-called “fishing expedition” would not be permitted, it “may be enough that it appears ‘on the cards’ that the documents will materially assist the defence” (at p 414). In this case, given the anticipated issues on retrial and that the subject of the documents is related to the very process of government that the accused is alleged to have corrupted, I was satisfied that inspection by the Court was appropriate. Having inspected the documents, I will address each in turn.

2. [42]

   This material consists of correspondence from Ministers to the Premier in the period January to March 2006. None of the authors of the letters nor its recipient are Crown witnesses. The letters do not refer to the accused or any Crown witness. They do not address any aspect of the CLP or any other government policy which has any relevance to the circumstances pertaining to the Circular Quay leases. The correspondence is of little utility, if any, to the defence case. The interests of justice do not outweigh the public interest in the maintenance of the secrecy of these documents. Access to these documents will be refused.

3. [43]

   This material consists of correspondence from Ministers to the Premier in the period November 2007 to February 2008. None of the authors of the letters nor its recipient are Crown witnesses. The letters do not refer to the accused or any Crown witness other than the basal fact that one of them is a Minister. They do not address any aspect of the CLP or any other government policy which has any relevance to the circumstances pertaining to the Circular Quay leases. The correspondence is of little utility, if any, to the defence case. The interests of justice do not outweigh the public interest in the maintenance of the secrecy of these documents. Access to these documents will be refused.

4. [44]

   This is a memorandum of advice dated 15 November 2007 from the Department of Premier and Cabinet concerning the CLP. The contents of the memo directly concern the abrupt change in the approach to lease renewals in the CLP that occurred in September 2007 (see [11]). The subject matter of the memorandum is of real significance to the issues in the prosecution. While it is doubtful that the accused would consider deploying it, in his case the public interest warrants his having access to it so that he might exercise care in questioning Crown witnesses including Mr Tripodi. The interests of justice and, in particular, the interest in the accused having access to this document outweighs the public interest in maintaining its secrecy. Access to this document will be granted.

5. [45]

   This is a letter dated 21 November 2007 from the then Minister Tripodi to the Premier. It addresses a particular consideration that weighs in favour of the adoption of the CLP. It could assist in any cross examination designed to show that Minister Tripodi’s apparent acceptance of the revised CLP was based on its merits and was completely unrelated to the accused’s intervention in the process for the renewal of the Circular Quay leases. The interests of justice and, in particular, the public interest in the accused having access to this document outweighs the public interest in maintaining its secrecy. Access to this document will be granted.

6. [46]

   At the hearing of this application, the parties, ICAC and the State requested the opportunity to be heard in relation to the appropriate orders necessary to give effect to the Court’s judgment. In any event, a delay between judgment and the entry of orders is appropriate. In Sankey, at p 43, Gibbs ACJ stated that no order for production of documents should be enforced “until the government concerned has had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so”.

7. [47]

   Accordingly at this point I will simply indicate the orders I propose to make, but not make them, namely:

   1. (1)

      Decline to grant the Director of Public Prosecutions or the Accused access to the documents listed in schedule 1.

   2. (2)

      The documents listed in schedule 1 and the documents located behind Tabs 2 to 4 and 6 to 10 of exhibit PM-1 to the affidavit of Paul Miller affirmed 19 April 2016 be returned to the Independent Commission Against Corruption.

   3. (3)

      The Accused and the Director of Public Prosecutions be granted access to the documents listed in Schedule 2.

8. [48]

   Instead, at this point, I will make the following orders:

   1. (1)

      The parties, ICAC and the State of New South Wales confer in relation to the orders necessary to give effect to this judgment.

   2. (2)

      Pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 this judgment not be published until further order.