R v Obeid

1. [1]

   JOHNSON J: By Notice of Motion filed on 19 May 2015, the Applicant, Edward Moses Obeid, makes application under s.132 Criminal Procedure Act 1986 to be tried by a Judge alone.

2. [2]

   The Crown does not agree to the Applicant being tried by a Judge alone. It is necessary for the Court to determine whether an order under s.132 should be made in the circumstances of the case.

The Charge Against the Applicant

1. [3]

   The Applicant has been charged with the common law offence of wilful misconduct in public office. On 8 May 2015, the Applicant was arraigned upon an indictment in the following terms:

2. [4]

   Upon arraignment, the Applicant pleaded not guilty to this charge. His trial is fixed to commence at the Supreme Court in Sydney on 12 October 2015.

The Present Application

1. [5]

   This application is made well before the trial date and with the identity of the trial Judge being unknown to the parties. The rationale underlying the determination of a s.132 application in this way was adverted to by me in R v McNeil [2015] NSWSC 357 at [8]-[11]:

Hearing of the Application

1. [6]

   The hearing of this application proceeded on 26 June 2015.

2. [7]

   On 22 May 2015, I had made an order prohibiting publication of the fact that the Applicant has made an application for trial by Judge alone.

3. [8]

   At the commencement of the hearing on 26 June 2015, I confirmed that the non-publication order remained in force with respect to the fact that the application had been made and anything said at the hearing of the application. That order will remain in force until any application is made to the trial Judge to lift the order after the trial of the Applicant is completed.

4. [9]

   Mr Stratton SC, for the Applicant, read the following affidavits at the hearing of this application:

5. [10]

   Folders of documents referred to in the affidavits were admitted separately as Exhibits TJB1, TJB3 and ROS1. Admitted as Exhibit TJB2 was a copy of a book by Kate McClymont and Linton Besser entitled “He Who Must Be Obeid”.

6. [11]

   The Crown read affidavits of Jessica Chan sworn 29 May 2015 and 26 June 2015.

7. [12]

   No deponent was required for cross-examination and no oral evidence was adduced at the hearing.

8. [13]

   Helpful written submissions had been provided by the parties in advance of the hearing and counsel spoke to these submissions.

Relevant Statutory Provisions

1. [14]

   Section 131 Criminal Procedure Act 1986 provides as follows:

2. [15]

   Section 132 provides:

3. [16]

   As will be seen, s.132(4) and (5) are the critical provisions on this application. Section 132(7) does not arise in this case.

4. [17]

   Section 132A is in the following terms:

The Crown Case Against the Applicant

1. [18]

   Wilful misconduct in public office is a common law offence in relation to which no maximum penalty is fixed by law: Blackstock v R [2013] NSWCCA 172 at [8].

2. [19]

   The Crown Case Statement outlines the case against the Applicant in the following way:

3. [20]

   The Crown alleges that the Applicant, in speaking to Stephen Dunn in the terms and on the occasions referred to in paragraphs [21]-[23] and [27] of the Crown Case Statement, misused his public office as a member of the Legislative Council to encourage Mr Dunn to alter the policy of the Maritime Authority of New South Wales towards tenants of properties at Circular Quay, and to alter the terms upon which that Authority would deal with and transact with those tenants.

4. [21]

   The Crown alleges that the Applicant encouraged alterations that were favourable to the Circular Quay tenants and, in particular, favourable to the company in which the Applicant and his family had a financial interest, being Circular Quay Restaurants Pty Limited.

Elements of the Offence of Wilful Misconduct in Public Office

1. [22]

   Submissions for the Applicant and the Crown touched upon the elements of the common law offence of wilful misconduct in public office. It is appropriate to refer to these elements to allow some understanding of what it is, as a matter of law, that the Crown will be required to establish at the trial of the Applicant.

2. [23]

   The elements of the offence of wilful misconduct in public office are governed by the common law. Both the Applicant and the Crown referred to the decision of the Victorian Court of Appeal in R v Quach [2010] VSCA 106; 27 VR 310, where Redlich JA (Ashley JA and Hansen AJA agreeing) identified the elements of the offence in the following way at 323 [46]:

3. [24]

   Of course, it is necessary to keep in mind, as Redlich JA observed in R v Quach at 320[37], that “the words used in the various cases are not to be read as if they are a statute”.

4. [25]

   I will return to this topic when considering submissions made by reference to likely issues in the trial.

Some General Principles Concerning an Application for Trial by Judge Alone

1. [26]

   In R v McNeil, I outlined a number of principles relevant to an application for trial by Judge alone at [27]-[39]:

2. [27]

   I approach the present application with these considerations in mind.

Issues on the Application

1. [28]

   Mr Stratton SC submitted that the substantial adverse media publicity concerning the Accused was a major factor, in the balancing exercise, pointing to the appropriateness of trial by judge alone.

2. [29]

   He submitted that other features of the case, including the issues to be determined at the trial, did not provide significant support for trial by jury.

3. [30]

   Mr Stratton SC submitted that the interests of justice called for trial by judge alone in this case.

4. [31]

   The Crown submitted that the media publicity could be addressed by appropriate pretrial steps and at the trial itself. It was submitted that several likely issues in the trial are appropriately determined by a jury.

5. [32]

   I turn to consider the application.

The Media Publicity Issue

1. [33]

   The principal issue advanced by the Applicant on the present application concerns adverse media publicity with respect to him over a number of years.

2. [34]

   Mr Stratton SC submitted that there has been a very high degree of extremely prejudicial pretrial publicity in this case. He submitted that there has been continuing adverse publicity over a very long period, to the effect that the Applicant is not merely guilty of the present offence, but also that he is a corrupt person generally.

3. [35]

   The publicity relied upon by the Applicant included the following:

4. [36]

   In oral submissions (T27-29, 26 June 2015), Mr Stratton SC drew attention to a number of newspaper articles including the following:

5. [37]

   Senior counsel for the Applicant drew attention, as well, to an article in “The Sydney Morning Herald” on 16 June 2015 concerning what was said to be a suspicious fire at certain Bankstown premises said to be associated with the Applicant. It was submitted that this article illustrated an ongoing level of publicity concerning the Applicant and his family.

6. [38]

   Mr Stratton SC submitted that the book “He Who Must Be Obeid” remains available for sale, with a chapter of the book relating to the subject matter of this prosecution.

7. [39]

   Mr Stratton SC submitted that care is required in relying upon what was said in R v Jamal [2008] NSWCCA 177; 72 NSWLR 258. He submitted firstly, that all of the cases cited by the Chief Justice were cases where the remedy sought in the face of adverse pretrial publicity was a permanent stay of the proceedings, a much more extreme remedy than is sought by the Applicant in the present case. Secondly, he observed that at a later time the convictions were quashed on appeal: Jamal v R [2012] NSWCCA 198. A retrial was ordered on one count which proceeded by way of a Judge-alone trial at which the Accused was acquitted: R v Jamal [2013] NSWDC 20.

8. [40]

   Mr Stratton SC submitted that the level of adverse publicity concerning the Applicant was such that a judge alone trial ought be directed to ensure a fair trial: Arthurs v Western Australia [2007] WASC 182 at [87]; R v Simmons and Moore (No. 4) [2015] NSWSC 259 at [87]-[88].

9. [41]

   The Crown acknowledged that the Applicant had received a not insignificant level of publicity concerning the ICAC investigations, hearings and findings and, to a lesser degree, the current criminal charge. The Crown accepted that the right of an accused person to a fair trial necessarily formed part of the broader interests of justice referred to in s.132(4) of the Act.

10. [42]

    By reference to the affidavit of Ms Chan sworn 29 May 2015, the Crown submitted that:

11. [43]

    The Crown submitted that there is a pattern of publicity concerning the Applicant peaking in 2013, lessening in 2014 and significantly dropping further up to mid-2015. The Crown submitted that this pattern of decreasing publicity was further demonstrated by Ms Chan’s affidavit of 26 June 2015.

12. [44]

    The Crown pointed to the evidence that the book “He Who Must Be Obeid”, published in August 2014, was not available for sale from August until early December 2014.

13. [45]

    With respect to the Facebook and Twitter material contained in Exhibit TJB1, the Crown submitted that there was no evidence as to the reach of this material. The Crown pointed to the observation of Harrison J in R v Abrahams [2013] NSWSC 729; 230 A Crim R 74 and in R v McNeil at [72] that musings of “faceless people” on Twitter and Facebook appear irrational and, in some instances, could be described as puerile.

14. [46]

    The Crown noted that the courts are not unfamiliar with criminal trial matters receiving high levels of media interest, both in quantity and in its potentially prejudicial nature. Reference was made to R v K [2013] NSWCCA 406; 59 NSWLR 431 at [80]-[82]; Skaf v R [2008] NSWCCA 303 at [46] and R v McNeil at [64]-[77].

15. [47]

    The Crown submitted that, in the circumstances of the diminishing nature of publicity over time (as appears to be the current position), the “fade factor” plays a part with reference being made to Montgomery v HM Advocate [2003] 1 AC 641 at 673 (cited in R v McNeil at [67]).

16. [48]

    The Crown referred to the report of Chesterman, Chan and Hampton, “Managing Prejudicial Publicity - An Empirical Study of Criminal Jury Trials in New South Wales” (February 2001), noting the statement therein that, in order to be influenced by prejudicial publicity, a (potential) juror must first encounter information, remember it and then apply it when reaching a verdict (page 148).

17. [49]

    The Crown pointed to s.68C Jury Act 1977, and the jury selection and empanelment process, as being important factors to take into account in an assessment of the impact of adverse media publicity concerning the Applicant, with reliance being placed upon R v McNeil at [68]-[80].

18. [50]

    The Crown acknowledged that an area of concern, in the circumstances of this case, is the risk of heightened publicity prior to empanelment of a jury and whether the empanelled jury might engage in Internet searches during the course of the trial.

19. [51]

    In this respect, the Crown submitted that the non-publication order already in place with respect to this application would be of assistance (see [8] above). The Crown submitted that further orders restricting publication, of the type utilised in R v McNeil, may be considered in this case. It was submitted that such orders may serve to limit, as fully as possible, media publicity becoming a trigger to electronic searching by members of the community who may become members of the jury panel. The Crown submitted that such orders may be to the following effect:

20. [52]

    In submissions in reply, Mr Stratton SC agreed with the making of orders as set out in the previous paragraph, although not conceding that they would solve the problem of existing adverse pretrial publicity.

21. [53]

    Some examples of media publicity concerning the Applicant have been set out above (at [36]). It is the case that a steady flow of adverse media publicity has surrounded the Applicant for some years.

22. [54]

    This case is different to that in R v McNeil, where there was an outburst of highly prejudicial publicity in the aftermath of events at Kings Cross which caused the death of Daniel Christie. The adverse publicity concerning Mr McNeil extended over a period of time but, as the judgment in R v McNeil makes clear, it subsided.

23. [55]

    It may be observed that the strategy to restrict further publicity in R v McNeil was effective up to the time when his trial commenced. However, as the judgment of RA Hulme J in R v McNeil (No. 2) [2015] NSWSC 757 makes clear, for reasons that are difficult to understand, some media outlets chose to publish damaging photographs of Mr McNeil once the trial was underway. His Honour refused to discharge the jury.

24. [56]

    It is noteworthy that the jury acquitted Mr McNeil of murder and convicted him of manslaughter. The outcome of that trial constitutes a recent practical example of the fact that, despite a very substantial volume of adverse publicity (including publicity which took place even when the trial was underway), the jury considered the case on its merits and returned a verdict which had been sought by senior counsel representing him. Mr McNeil received a fair trial according to law.

25. [57]

    With respect to Mr Stratton SC’s submission concerning R v Jamal (see [39] above), I observe that the particular value of the statements of Spigelman CJ was his Honour’s emphasis upon the importance of community participation in the administration of criminal justice by way of jury trial, with public confidence turning to a significant degree upon that participation: R v Jamal at 262 [24]. That remains a most important feature on the present application under s.132.

26. [58]

    In the following paragraphs, I set out part of my judgment in R v McNeil (at [64]-[69]) which has application to this case as well.

27. [59]

    Adverse and sensational media publicity occurs from time to time in the context of cases which have achieved some notoriety. Spigelman CJ touched upon some of these in R v Jamal at 261 [16]:

28. [60]

    The Chief Justice continued in R v Jamal, emphasising that the Courts have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. The Chief Justice said at 261-262 [17]-[21]:

29. [61]

    The lapse of time between media publicity and the trial itself is a significant factor. In Montgomery v HM Advocate, Lord Hope of Craighead said at 673:

30. [62]

    In Skaf v R [2008], the Court of Criminal Appeal (McClellan CJ at CL, Hidden and Howie JJ) referred to the new dimension flowing from the internet in the area of media publicity. Their Honours said at [27]-[28]:

31. [63]

    Reference should be made to s.68C Jury Act 1977, which provides:

32. [64]

    In Skaf v R, their Honours returned to the internet, and the role of s.68C Jury Act 1977, at [46]:

33. [65]

    I accept the analysis undertaken by the Crown that there has been a falling off in the publicity concerning the Applicant. It peaked in 2013, commenced to drop off in 2014 with a further peak at the time of the ICAC report concerning him, but with a steady drop off in 2015. In these circumstances, the reduction in publicity is significant and the “fade factor” relied upon in R v McNeil has some application.

34. [66]

    I have borne in mind, as well, the report of Chesterman, Chan and Hampton concerning the management of prejudicial publicity. I bear in mind that that report was published in 2001, and that the nature and volume of electronic media reporting has expanded significantly since then. However, the findings in that report provide support for the importance of the passage of time in an assessment of the potential role of prejudicial publicity.

35. [67]

    In R v Yuill (1993) 69 A Crim R 450, Kirby ACJ said at 453-454:

36. [68]

    The capacity of jurors to differentiate between “gossip, rumour, news and opinion” heard before the case, and evidence heard in the court of trial, is an important feature on an application such as this. The extract from the judgment of Spigelman CJ in R v Jamal (at [60] above) supports the capacity of jurors to undertake their duties in a fair and balanced way, informed only by the evidence adduced at the trial.

37. [69]

    In Priest v State of New South Wales [2006] NSWSC 12, I had regard to this statement by Kirby ACJ in R v Yuill, together with the report of Chesterman, Chan and Hampton, in reaching a conclusion that a jury should not be dispensed with in civil proceedings where there had been a substantial body of publicity favourable to the plaintiff, but adverse to persons who would be important witnesses for the defendant at trial.

38. [70]

    A further aspect of that case, which has some relevance to the present application, is that the plaintiff had been a co-author of a book which had been published and which made substantial criticisms of persons and events which were the subject matter of that civil litigation. I was satisfied in that case (at [114]) that this factor was manageable by proper directions from the trial Judge.

39. [71]

    I adopt a similar approach to the published book concerning the Applicant in this case. In reaching this view, I have taken into account that the book was written by journalists and contains significant content adverse to the Applicant. However, there is no evidence of its sale numbers. In effect, it forms just one part of a body of information available in the public arena which refers unfavourably to the Applicant.

40. [72]

    I have taken into account the posters observed in Sydney streets in March 2015 (see [35](b) above). They are close to the category of material in social media, which should be approached as “musings” of people, and which should not be given any real weight on an application such as this: R v McNeil at [72].

41. [73]

    I have kept in mind the most important role which members of the community play in the administration of criminal justice by way of jury service. It is the experience of trial judges that jurors display, in the words of Chesterman, Chan and Hampton (page 5), “good sense and sturdy individualism”. Jurors are not “exceptionally fragile and prone to prejudice”: John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344 at [103].

42. [74]

    I am satisfied that some steps may be taken in this case to reduce the impact of publicity, at the very least by maintenance of the non-publication order concerning this application. These steps should be considered, in conjunction with the strong directions which will undoubtedly be given by the trial Judge in advance of empanelment of a jury, and after empanelment together with the operation of s.68C Jury Act 1977.

43. [75]

    I am satisfied that these measures will serve to assist a fair trial of the Applicant.

44. [76]

    I do not consider that the adverse media and other publicity requires, in the interests of justice, an order for trial by Judge alone in this case.

Other Features of the Case Bearing Upon the Present Application

1. [77]

   I turn to consider other factors bearing upon this application

2. [78]

   In foreshadowing likely issues at the trial, Mr Stratton SC submitted that it was not anticipated that there would be very much at issue about what the Applicant did or said. Rather, it is anticipated that the issues in the case will very much be what the Applicant’s duties were as a member of the Legislative Council of New South Wales, and whether or not his activities were in breach of those duties.

3. [79]

   Mr Stratton SC submitted that, in order to make out its case, the Crown must establish that Mr Dunn himself was guilty of wilful misconduct in causing the Maritime Authority of New South Wales to deal favourable with Circular Quay Restaurants Pty Limited in respect of that company’s tenancies of properties at Circular Quay, and that the Applicant was aware that such conduct was unlawful. It was submitted that, if this argument was accepted, then those matters would also be issues at the trial.

4. [80]

   With respect to the fifth element identified in R v Quach, Mr Stratton SC conceded that an assessment whether misconduct (if found) was serious and meriting criminal punishment was an issue which involved the application of community standards. He submitted, however, that other areas of the case would be the real issues at trial.

5. [81]

   The Crown submitted that the defence characterisation of likely trial issues was unduly simple. The Crown indicated that there were likely to be credibility issues in the trial concerning Crown witnesses as well as the Applicant if he gave evidence.

6. [82]

   The Crown contended that there are features of this offence which require consideration of objective community standards. The Crown submitted that issues informed by objective community standards arising from the elements of this offence, in the context of the present case, are as follows:

7. [83]

   The Crown submitted that the principal factual issues in this case will involve questions regarded as classic jury issues.

8. [84]

   Mr Stratton SC, on the other hand, submitted that this is not a case calling for the application of community standards. He submitted that the major issue will be whether or not the Applicant, in lobbying for a particular policy, was in breach of his duties as a member of the Legislative Council of New South Wales.

9. [85]

   It will be for the trier of fact at the trial to determine the issue as to whether the Applicant’s conduct constituted wilful misconduct. It will be for the Crown to prove that the Applicant deliberately did something which is wrong, knowing it was wrong or with reckless indifference as to whether it was wrong or not: Lloyd v McMahon [1987] AC 625 at 697. This will require consideration as to whether the Applicant had a motive, purpose or intent that was contrary to the duties of his office at the time of the relevant conduct: R v Quach at [83].

10. [86]

    The Crown contends, and I accept for present purposes, that in the overall context of the Crown case and the events and correspondence taking place during August and September 2007, the trier of fact will need to determine if the Applicant had conducted himself in a way he knew to be wrongful in terms of his public office. If the Crown establishes that the Applicant spoke with Mr Dunn on the occasions referred to above, the question for the trier of fact will be whether, in the circumstances of all the evidence, he wilfully misconducted himself. In the circumstances of this case, that is a matter requiring the application of objective community standards.

11. [87]

    The fifth element in R v Quach requires a determination by the tribunal of fact as to whether misconduct (if found) is serious and meriting criminal punishment, having regard to other factors referred to in the description of that element. I am satisfied that this aspect involves community standards so that this issue is very much a jury question. Other areas of the criminal law involve analogous assessments. In manslaughter by criminal negligence, an aspect to be considered by a jury (if other elements are proved) is whether the doing of the act merited criminal punishment. Where a partial defence of substantial impairment is raised to a charge of murder, it is necessary for the tribunal of fact to consider (if other aspects are established) whether “the impairment was so substantial as to warrant liability for murder being reduced to manslaughter”: s.23A(1)(b) Crimes Act 1900. This is a task for the tribunal of fact, which must approach the task in a broad commonsense way, involving a value judgment by a jury representing the community. It is a quintessential jury issue: Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at 224 [33]-[35].

12. [88]

    It is difficult at this point to make any meaningful and reliable prediction as to the likely trial issues. The precise formulation of the elements of the offence, in the context of this case, will be a matter for the trial Judge. At this stage, however, I am satisfied that there is scope for consideration of objective community standards in determination of issues in the trial. The Crown outline of the way in which objective community standards may arise (see [82] above) is reasonably open as a view to be formed, at this distance from the trial, of some of the trial issues.

13. [89]

    I have referred earlier to submissions which were made concerning the issues in the trial. There are unresolved aspects in this regard, which can only be determined closer to or in the course of the trial itself by the trial Judge.

14. [90]

    I am satisfied that the trial will involve factual issues that require the application of objective community standards and the determination as to whether intention is established.

15. [91]

    With respect to the role of intention, I remain of the view expressed in R v McNeil at [90]-[93]:

16. [92]

    These are significant issues involving intention which appear likely to arise at this trial.

17. [93]

    It seems to me that issues of credibility are likely to arise in this case. Once again, I remain of the view expressed in R v McNeil at [102]-[104]:

18. [94]

    In my view, the likely issues in the trial include significant matters which are appropriate for determination by a jury.

Conclusion

1. [95]

   I have had regard to all factors bearing upon the exercise of discretion under s.132(4) as identified in this judgment.

2. [96]

   I have had regard to the adverse media and other publicity concerning the Applicant (including the book and posters referred to earlier), the steps which the Court may take in advance of the trial to mitigate the effects of publicity and other aspects of the case, including issues of intention, credibility and the application of objective community standards, which bear upon the s.132 application.

3. [97]

   In all the circumstances, I do not consider that it is in the interests of justice for the Applicant to be tried by Judge alone.

4. [98]

   The Applicant’s Notice of Motion filed 19 May 2015 should be dismissed.

5. [99]

   As foreshadowed earlier in this judgment, I am satisfied for the purpose of s.8(1)(a) Court Suppression and Non-publication Orders Act 2010 that some orders are necessary to prevent prejudice to the proper administration of justice. The existing non-publication order should remain in place until such time as a different order or orders are made by the trial Judge.

6. [100]

   I should refer to further material furnished to the Court since the hearing of this application.

7. [101]

   In a further submission dated 3 July 2015, which was accompanied by a further affidavit of Jessica Chan sworn that day, the Crown pointed to further action which had been taken concerning media publicity:

8. [102]

   The Crown referred to the Court’s capacity to make orders, if necessary, in accordance with Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52 at 78 [98], 70 [105].

9. [103]

   The Crown proposed the making of additional orders which were supported by the Applicant (see [51]-[52] above). I will invite submissions on the question whether an order should be made prohibiting publication of the listing of the Applicant’s trial and the utility of such an order.