Obeid v R

1. [1]

   BATHURST CJ: The applicant, Mr Edward Moses Obeid (Mr Obeid), was tried on an indictment in the following terms:

2. [2]

   Following a trial before Beech-Jones J (the trial judge) and a jury, Mr Obeid was convicted and was sentenced to a term of imprisonment of 5 years commencing on 15 December 2016 with a non-parole period of 3 years. Mr Obeid has appealed against his conviction and sought leave to appeal against his sentence.

Background facts

1. [3]

   The primary facts giving rise to the offence were either undisputed or, subject to what I have set out below dealing with particular grounds of appeal, not the subject of any debate in the appeal. The summary is primarily taken from the trial judge’s summary of the facts in his sentencing judgment.

2. [4]

   Mr Obeid was elected to the Legislative Council in 1991 and retired in 2011. From April 1999 to April 2003 he was the Minister for Fisheries.

3. [5]

   In the period leading up to the Sydney Olympics, the NSW Maritime Authority (the Maritime Authority), then known as the Waterways Authority, entered into leases for businesses situated on Wharves 1-5 at Circular Quay. The leases were for terms of 5 years expiring on or about 31 August 2005. There was no option for renewal.

4. [6]

   The Minister responsible for the Maritime Authority was the Minister for Ports and Waterways. Between February 2006 and November 2009, the relevant Minister was Mr Joseph Tripodi.

5. [7]

   In about late 2002, Circular Quay Restaurants Pty Ltd (CQR) purchased two businesses operating at the wharves, the Café Sorrentino on Wharf 4 and the Quay Eatery on Wharf 5 for $1 million each. CQR took an assignment of the leases entered into in respect of each of those premises.

6. [8]

   The sole director and shareholder of CQR was Mr Obeid’s brother-in-law Mr John Abood. It was an agreed fact that “via a series of trusts 90% of the interest in the business[es] flowed to the Obeid Family Trust No 2”. This was a discretionary trust, the potential beneficiaries of which included Mr Obeid and his wife Judith (Mrs Obeid). The purchases were funded in part ($1.398 million) from the proceeds of a mortgage of the house in which Mr Obeid and his wife resided and which was registered in the name of his wife.

7. [9]

   Mr Abood managed the business on a day-to-day basis for which he was paid a salary and provided with a motor vehicle. One of Mr Obeid’s sons, Mr Damien Obeid (Damien), was responsible for the collection of the cash takings of the business and payment of the invoices. Damien gave evidence that shortly after the businesses were acquired, he arranged $1,000 to $1,200 per week from the cash takings of CQR to be delivered to Mrs Obeid. It appears that towards the end of 2008 or early 2009, the payments increased to up to $2,000 per week.

8. [10]

   The lessees of the businesses at the wharves were concerned about their security of tenure. This was particularly the case for CQR, as if the leases were not renewed, it was likely that the funds outlaid to purchase the businesses would not be recouped. In August 2004, five representatives of the lessees including Mr Abood, wrote to the Sydney Harbour Foreshore Authority (SHFA) which was managing the wharves for the Maritime Authority, expressing concern about the security of their tenure and seeking a response to their request to renew the leases. On 2 September 2004 SHFA responded, stating that all lease agreements would be offered for competitive tender at their expiry and the tendering process would commence early in the New Year.

9. [11]

   On the recommendation of Damien’s cousin, Mr Dennis Jabour, three separate tenants, including CQR, retained a Mr Peter Scanlan, a professional negotiator with legal qualifications, to lobby the Maritime Authority to achieve either renewal of the leases or the Authority’s agreement to direct negotiations with the tenants.

10. [12]

    Mr Scanlan undertook that task from late 2004 to early 2008. He wrote a series of letters, made numerous telephone calls, had meetings with Maritime Authority staff and in July 2006 a meeting with Minister Tripodi. Despite these efforts, up to the middle of 2007 he was unsuccessful in securing a change in position by the Maritime Authority.

11. [13]

    Despite Mr Scanlan’s lack of success, the Maritime Authority did not proceed to competitive tender for the leases. Rather, they were extended for 6 months from August 2005, and thereafter continued as month-to-month tenancies.

12. [14]

    The reason for the delay in going to competitive tender was explained by the former Chief Executive Officer of the Maritime Authority, Mr Christopher Oxenbould. The delay resulted from internal government disagreements concerning the Maritime Authority’s Commercial Leasing Policy (the CLP) and its approach to the Circular Quay Precinct. He explained there were differences of opinion within the Maritime Authority and between differing Ministers from time-to-time whether upon expiration of a lease a new lease should be the subject of a market based tender, or whether existing tenants should be allowed the opportunity of first negotiating a renewal. Mr Oxenbould stated that within the Maritime Property Division of the Maritime Authority there was a strong belief that the process of renewal for the Circular Quay leases was a special case compared with those addressed in the proposed CLP and should only be renewed by a process of competitive tender.

13. [15]

    Mr Patrick Low was appointed to a senior policy position within the Maritime Authority in November 2006 and assumed responsibility for the finalisation of the CLP. Mr Low gave evidence that he did not draw any distinction between leases at Circular Quay and other leases of the Maritime Authority Property Division. On 7 August 2007 Mr Low finalised Version 9 of the Draft CLP which contemplated that all leases of Maritime Authority property be offered on a competitive basis, including new leases in respect of properties where existing leases had expired.

14. [16]

    On 15 August 2007, Mr Stephen Dunn took up appointment as Deputy Chief Executive Officer of the Maritime Authority and on 21 August 2007 he was appointed General Manager of the Maritime Property Division. Mr Dunn was the Director-General of Fisheries from late 1999 to 2004 which included the period in which Mr Obeid was Minister for Fisheries. Mr Dunn’s evidence was that he and Mr Obeid came to know each other well during that period. He said they did not socialise, although he regarded Mr Obeid as a mentor.

15. [17]

    Mr Dunn gave evidence that after he ceased work at the Department of Fisheries, he worked overseas for 2 years and after his return he met Mr Obeid infrequently for coffee. He said immediately before his appointment to the Maritime Authority, Mr Obeid contacted him and was or became aware that Mr Dunn was about to commence in a senior position with the Maritime Authority.

16. [18]

    On 17 August 2007, Mr Dunn spoke with Mr Obeid who told him he was unhappy about the way the group of tenants at Circular Quay had been treated by the Maritime Authority and asked Mr Dunn to speak to Mr Scanlan. He said he recalled that Mr Obeid made some very disparaging remarks about the Maritime Authority and the way it treated its tenants. He recalled Mr Obeid saying that lessees at Circular Quay were bullied by Maritime Authority staff and were not treated fairly. He recalled that Mr Obeid was agitated and used quite strong language to convey his feelings. In cross-examination, Mr Dunn agreed Mr Obeid did not advocate any outcome other than him merely speaking to Mr Scanlan, and did not expand on the tenants’ grievances.

17. [19]

    Mr Obeid did not indicate during those conversations or any subsequent conversation, that he had a direct or indirect financial interest in any of the businesses at Circular Quay or in CQR. Mr Dunn said he knew that Mr Obeid was a Member of the Legislative Council and believed “very much that he was calling on behalf of constituents”.

18. [20]

    There were further telephone conversations between Mr Dunn and Mr Obeid after the 17 August phone call. Mr Dunn stated he could not recall the content of those conversations but accepted that there was nothing to discuss other than the Circular Quay leases. He recalled that in telephone calls on 5 and 11 September 2007, Mr Obeid was seeking updates.

19. [21]

    Around 28 August 2007, Mr Dunn and Mr Low met to discuss Version 9 of the Draft CLP. Mr Low recalled that Mr Dunn directed that it be changed from requiring open tender of leases to instead having a “benchmark of lease renewals on commercial terms”. Mr Dunn stated he did not direct those changes but was encouraging Mr Low that this was a suitable policy response.

20. [22]

    On 4 September 2007, Version 10 of the Draft CLP was produced. It provided that retail leases would be offered “by direct negotiations” with existing tenants in the first instance. The final CLP containing these terms was approved by Cabinet on 26 November 2007. A new lease for the CQR businesses was signed in 2008. The businesses ultimately failed and the leases were terminated in 2012.

The conviction appeal

1. [23]

   Each ground of appeal raised discrete issues, although in some cases submissions made on various grounds were called in aid on other grounds. This was particularly so in relation to Ground 7, which stated there was a miscarriage of justice arising from the conduct of Mr Obeid’s case at trial by his legal representatives.

2. [24]

   Each of Grounds 1-4 and 6 of the grounds of appeal concerned matters not raised at trial and not the subject of any requests for further directions by counsel for Mr Obeid. In these circumstances r 4 of the Criminal Appeal Rules potentially applied. However, each of Grounds 1, 2 and 3 raise matters which if established would immediately lead to an acquittal or stay of proceedings (in respect of Ground 1, to the extent it was alleged that there was no duty to give rise to the offence charged). In addition, Ground 3 and possibly Ground 2, raised matters decided unfavourably to Mr Obeid in Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309, and thus would have been inappropriate to raise at trial. Further, Ground 1 asserts a misdirection as to the nature of the offence in question, and Grounds 4 and 6 assert misdirections as to the elements of the offence. To that extent, they raise matters which, if correct, would constitute a miscarriage of justice and thus r 4 would have no application. Whilst I accept, as Basten JA has pointed out in Greenhalgh v R [2017] NSWCCA 94 at [14], that the exercise of the discretion to grant leave conferred by r 4 cannot be proscribed, the discretion in my opinion will be exercised in the applicant’s favour where there has been a miscarriage of justice such that the appellant has lost a real chance of acquittal: see ARS v R (No 2) [2011] NSWCCA 266 at [147]; Greenhalgh supra per N Adams J at [47]-[48].

3. [25]

   Further, as Basten JA observed in Greenhalgh supra at [14], if a necessary element of a fair trial according to law was overlooked, leave should generally be granted. A proper direction as to the elements of the offence, in my opinion, is a necessary ingredient of a fair trial. Grounds 4 and 6 raise such a misdirection.

4. [26]

   In these circumstances, as I indicated at the hearing, leave to raise Grounds 1, 2, 3, 4 and 6 should be granted. It is unnecessary in these circumstances to determine whether r 4 can apply to a ground of appeal on a question of law alone. It is similarly unnecessary to consider whether the decisions in Greenhalgh supra and ARS supra suggest different approaches to the determination of whether leave should be granted in cases where the rule applies.

5. [27]

   To understand the submissions made in respect of this ground, it is necessary to have regard to what the applicant has described as the formulation of the duty by the trial judge in his directions to the jury.

6. [28]

   The trial judge gave written directions to the jury in the following terms:

7. [29]

   It is to be noted that written direction 3 required the jury to be satisfied beyond reasonable doubt of three matters. First, that Mr Obeid engaged in the conduct referred to in the indictment with the intention of securing an outcome favourable to CQR, knowing at the time he had a commercial, beneficial or family interest in the business which he did not disclose to Mr Dunn. It was this element of the written direction which focused on Mr Obeid’s intention.

8. [30]

   Second, the jury had to be satisfied that such conduct was in breach of Mr Obeid’s duties as a Member of the Legislative Council (3(b) of the directions). This question would only arise if the jury was satisfied beyond reasonable doubt that question 3(a) should be answered in the affirmative.

9. [31]

   The third matter which arose only if questions 3(a) and (b) were answered in the affirmative, was whether the misconduct was wilful in the sense that Mr Obeid knew he was obliged not to use his position in that way but did so in any event.

10. [32]

    After giving some general directions, the trial judge in summing-up directed the jury by reference to the written directions. In relation to (3)(a) of the written directions, after dealing with the question of whether Mr Obeid had a commercial, beneficial or family interest in the tenancy, the trial judge dealt with the question of intention. His Honour summarised the Crown case on the issue in the following terms:

11. [33]

    On two occasions in this passage the trial judge noted the Crown case was that Mr Obeid spoke to Mr Dunn for the purpose of promoting his and his family’s financial interests and not in the belief that it was in the public interest or the interests of the electorate of New South Wales or even some constituents.

12. [34]

    After dealing with the competing contentions of the Crown and Mr Obeid, the trial judge concluded his summing-up on par (3)(a) of the written directions in the following terms:

13. [35]

    Thereafter the following exchange took place in the absence of the jury:

14. [36]

    The trial judge then commenced to deal with question 3(b). He emphasised that in performing their function Members of Parliament must not be motivated by personal pecuniary considerations, whilst recognising from time-to-time decisions made by them can affect their personal interests. He explained this in the following terms:

15. [37]

    In stating to the jury, in the last paragraph of the summing-up to which I have referred in [36], that “if you have reached this point of your deliberations” the trial judge was referring to the fact that the jury would have been satisfied of the element referred to in par 3(a) of the written directions. To the extent that this was not immediately apparent, it was clear from the following remarks made by the trial judge after referring to the contentions for the Crown and Mr Obeid on this issue:

16. [38]

    Mr Obeid’s submissions on this ground encompassed two strands. First, he submitted that there was no duty of the nature of that alleged by the Crown such that he could not be convicted of the offence irrespective of his motivation or intention in speaking to Mr Dunn. Second it was submitted that to the extent that there was a duty at law, the trial judge erred in giving the direction to which I have referred at [36] above, and particularly his statement that Members of the Legislative Council must act only according to what they believe to be in the public interest and the interests of the electorate and must not use their position for the purpose of promoting their own pecuniary interests or those of their family or entities close to them. Consistent with the submission that no duty of the nature of that alleged existed, senior counsel for Mr Obeid declined to formulate the direction which should have been given.

17. [39]

    Mr Obeid in his written submissions described the duty as a double duty, in the sense that there would be a breach if the Crown could prove either that Mr Obeid did not act wholly in accordance with what he believed to be both in the public interest and in the interests of the electorate, or that he used his position in any respect for the purpose of promoting his own pecuniary interests or those of his family or entities close to him. He submitted that the jury may have found a breach of both duties or only one.

18. [40]

    Mr Obeid pointed to a number of other matters which he submitted highlighted the difficulties involved with the duty. Of these matters, senior counsel for Mr Obeid highlighted the fact that the duty was what he described as a sole purpose duty, in that notwithstanding being motivated by the public interest or the interests of the electorate, if the Member of Parliament was motivated by some other purpose, there would be a breach of the duty. Mr Obeid’s written submissions pointed to other matters which he contended demonstrated that a breach would occur even if there was no pecuniary benefit, or no matter how benign the ulterior motive was. He also submitted there would be a breach where the Member of Parliament believed his conduct was in the public interest but not in the interests of the electorate. He also contended that the duty applied to the performance by a Member of Parliament of all of their functions both within and outside Parliament without qualification, and took no account of compliance by Members of Parliament with parliamentary standards regarding disclosures of conflicts of interest or pecuniary interests.

19. [41]

    It was also submitted by senior counsel for Mr Obeid that in the formulation of the duty there was no concept of a substantial or dominant purpose.

20. [42]

    During the course of argument senior counsel for Mr Obeid rejected the suggestion that the direction could be read as suggesting that the motivating purpose must be what the Member of Parliament believes to be in the public interest or the interests of the electorate. He submitted that at the least, there had to be a real risk that the jury may have interpreted the duty as formulated in Mr Obeid’s written submissions.

21. [43]

    Mr Obeid in his written submissions identified 15 reasons why he said the duty was wrong in law. The first and the third of these reasons were that the duty was entirely without precedent or recognised by any authoritative source.

22. [44]

    It was submitted that any obligation of the nature of that which arose was a duty of imperfect obligation, not cognisable in a court of law as a legal duty. It was submitted that the duty had no legal provenance and any duty of the kind in question did not extend beyond parliamentary action. Senior counsel for Mr Obeid submitted that these propositions were consistent with what was said by Isaacs J in Wilkinson v Osborne (1915) 21 CLR 89; [1915] HCA 92 at 98. He also submitted that the statements by Isaacs and Rich JJ in R v Boston (1923) 33 CLR 386; [1923] HCA 59 at 402 showed that discharge of the duty is necessarily left to the member’s conscience.

23. [45]

    He further submitted that any obligations of the kind in question were subject to the special provisions of any relevant law and may be modified by statute, and further that any duty was subject to “evolutionary modification”, the chief of which he described as the development of modern party politics. In that context, senior counsel for Mr Obeid submitted that it was necessary to consider the duty in the context of the Constitution (Disclosures by Members) Regulation 1983 (NSW) (the Regulation) made under s 14A of the Constitution Act 1902 (NSW) (the NSW Constitution) and the Code of Conduct adopted by the Legislative Council on 21 June 2007 (the Code).

24. [46]

    Senior counsel for Mr Obeid referred to the fact that s 14A(1) of the NSW Constitution empowered the Governor to make regulations relating to disclosure of various pecuniary interests, including any other direct or indirect benefits, advantages or liabilities whether pecuniary or not of a kind specified in the Regulation (s 14A(1)(xii)), whilst s 14A(1)(b) and (c) empowered regulations as to the manner in which disclosure could be made. He also pointed to the fact that s 14A(2) provided that a sanction for wilful non-disclosure contrary to the Regulation was that the House may declare the Member’s seat vacant. It should be noted that in Obeid v R supra at [47] this Court concluded there was nothing to suggest that the s 14A(2) mechanism or the Code support an exclusive jurisdiction of Parliament in respect of offences of the nature of that alleged against Mr Obeid.

25. [47]

    Senior counsel for Mr Obeid submitted that the Regulation directed what pecuniary interests were to be disclosed and pointed out that they only covered pecuniary interests of Members of Parliament and not their family or associates. He also pointed to the obligation to keep the register of disclosure up-to-date, submitting that the policy behind that was that anyone dealing with a Member of Parliament could see his or her pecuniary interests and that there was what he described as a countervailing alleviation of “ad hoc” disclosure responsibility on Members of Parliament. He also pointed to cl 16 of the Regulation, which provided that a Member at his or her discretion may disclose any direct or indirect benefits, advantages or liabilities which the Member considers might appear to raise a conflict between his or her private interests and his or her public duty as a Member, or which he or she otherwise desires to disclose, emphasising that such disclosure was voluntary.

26. [48]

    Senior counsel for Mr Obeid also pointed to the Code submitting, relevantly for this ground, that it created a code of conduct intra-murally within Parliament. He pointed to the fact that there was no reference to the Court being empowered to deal with any matters covered by it.

27. [49]

    Senior counsel for Mr Obeid referred to the preamble to the Code, noting the acknowledgment by Members of the House to maintain the public trust placed in them and use their influence to advance the common good of the people of NSW, together with the acknowledgment by Members of Parliament that their principal responsibility is serving the people of NSW. He submitted that the fact that these statements were not in the substantive part of the Code suggested that they were treated as non-binding acknowledgments.

28. [50]

    Senior counsel for Mr Obeid submitted that the Code was “some form of exhaustive or definitive statement or obligation”. He pointed out that the Code did not contain the duty of which complaint was made. He referred to the fact that the Code recognised in cl 6 that organised parties formed part of the political system. He submitted that loyalty to a particular political party may involve voting for something which the Member of Parliament did not believe to be in the public interest. In relation to conflicts, he pointed out that cl 1(a) of the Code only refers to decisions in which Members of Parliament participate in the execution of their office, and does not include a conflict in speaking to a public servant.

29. [51]

    In his written submissions Mr Obeid submitted that the duties were too broad and would catch examples of common conduct by Members of Parliament including supporting party policy regardless of his or her individual beliefs, engaging in fundraising activities, and engaging in conduct which although the Member of Parliament believed to be in the public interest, was also motivated by some “purely personal (but benign) motive or concern”. Significantly none of the examples given, except one, include conduct where the motivating purpose was the advancement of the Member of Parliament’s pecuniary interests. The only example which involved a Member of Parliament being partly motivated by pecuniary interests was the example of a Member who was motivated in part by a desire to be re-elected to obtain greater pension or superannuation benefits. That example is far removed from the present case.

30. [52]

    As what he described as a fallback position, senior counsel for Mr Obeid submitted if there were any such duties as alleged, it would need a reference to a substantial or dominant purpose which the direction as formulated failed to do.

31. [53]

    The Crown’s submissions on the nature of the duty were primarily contained in the written submissions and in a note handed up during the course of the hearing. However, at the hearing it was contended that the trial judge had correctly formulated the duty in R v Obeid (No 2) [2015] NSWSC 1380 where his Honour made the following comments:

32. [54]

    The Crown also pointed to the fact that on appeal from that decision, in Obeid v R supra, this Court (at [148]) stated that this formulation of the duty substantially conformed to what Meagher JA said in Sneddon v State of NSW [2012] NSWCA 351 at [218]. In that paragraph Meagher JA made the following remarks:

33. [55]

    The Crown submitted that in considering the question of whether the conduct alleged in the indictment could constitute the offence of misconduct in public office, it was important to have regard to the fact that a public office is a public trust. The Crown, referring to what was said by Lord Selborne LC in Kinloch v The Secretary of State for India in Council (1882) 7 App Cas 619 at 625-626 (in a different context) described this “public trust” as one which respects higher matters, such as might take place between the Crown and public officers discharging duties or functions belonging to the authority of the Crown, in contrast to a trust administered in the equitable jurisdiction of the Court. It was submitted that that concept encapsulates the common law’s insistence that public officials adhere to fiduciary standards of behaviour, without being a fiduciary in the legal sense. The Crown submitted that the fundamental obligation of Members of Parliament in carrying out their functions was to act with fidelity and single-mindedness to the welfare of the community. It was submitted, referring to Wilkinson v Osborne supra, Horne v Barber (1920) 27 CLR 494; [1920] HCA 33 and R v Boston supra, that parliamentarians have a duty not to use their position to promote their own pecuniary interests (or those of their family or entities close to them) in circumstances where there is a conflict, or a real or substantial possibility of conflict between those interests and their duty to the public. It was submitted that the duty derives from the nature of the office, not from any code of conduct resolved upon by the relevant House of Parliament.

34. [56]

    The Crown submitted that it was incorrect to describe the duty as a twofold or double duty as submitted by Mr Obeid. It was submitted that one of the limbs was positive, namely that a parliamentarian must act in the public interest and the other negative, namely, that a parliamentarian must not act in his or her own interest. The Crown also submitted that any possible conflict between the interests of the public and the interests of the electorate was not in issue at the trial, where the breach alleged was that Mr Obeid acted solely for his personal or his family’s pecuniary interests.

35. [57]

    The Crown submitted that it was incorrect to suggest the duty was without precedent and submitted that such a suggestion was contrary to case law in Australia and other jurisdictions. The Crown pointed to the statement of Isaacs J in Horne v Barber supra at 500 to the effect that “the law will not sanction or support the creation of any position of a member of Parliament where his own personal interest may lead him to act prejudicially to the public interest”. The Crown submitted that the existence of the duty was supported by what was said by the High Court in Re Day (No 2) [2017] HCA 14; (2017) 91 ALJR 518 at [49]-[50], [179], [269]. The Crown submitted that neither the NSW Constitution, the Regulation, nor the Code constrained the common law obligations of a Member of Parliament. It was submitted that the fact that parliamentarians were required to register their pecuniary interests, did not constrain or eliminate the common law obligations imposed on them. The Crown submitted that whilst Parliament had exclusive jurisdiction in respect of all matters relating to the obligation of a Member of the Legislative Council to disclose his or her pecuniary interests, including measures taken to enforce compliance and deal with non-compliance, this did not derogate from the Court’s jurisdiction in respect of the offence charged.

36. [58]

    The Crown submitted that in considering Mr Obeid’s “fallback” position, namely, the particular complaint about the direction, it was inappropriate to take snippets of the summing-up divorced from their context. The Crown pointed to that part of the summing-up set out at [34] above and the subsequent exchange in the absence of the jury referred to at [35]. It was submitted that the subsequent directions made explicit that the case did not concern arguments over differences of opinion as to what was in the interests of the electorate and the public. Rather, it instead concerned the requirement that Members of Parliament only act in what they believe to be in the public interest and in the interests of the electorate, and must not to be motivated by personal pecuniary considerations. The Crown submitted that considered in that context, the criticism of the direction had not been made out.

37. [59]

    The Crown submitted at the hearing that the effect of the direction to which I have referred above, was that before the jury came to consider the duty to which they were directed, they would have already found beyond reasonable doubt that Mr Obeid had made representations to Mr Dunn for the purpose of promoting his and his family’s financial interests and not pursuant to any belief that speaking to Mr Dunn was in the public interest or in the interests of the electorate.

Consideration

1. [60]

   In a passage approved by this Court in Obeid v R supra, the Victorian Court of Appeal in R v Quach (2010) 27 VR 310; [2010] VSCA 106 stated (at [46]) the elements of the offence of misconduct in public office in the following terms:

2. [61]

   It will be necessary subsequently to turn to a challenge to a particular aspect of the decision in Quach, namely, the complaint concerning the fifth element (Ground 6 of the grounds of appeal) but subject to this matter, the formulation of the elements of this offence in these terms is at least in this Court settled and was not subject to challenge on this appeal. Further, it should be noted in respect of Ground 3 of the grounds of appeal, namely, the trial judge made a wrong decision on a question of law in directing the jury that a Member of the Legislative Council is caught by the common law offence of official misconduct, that Mr Obeid accepted that the submission was contrary to what was said by this Court in Obeid v R supra and only made a formal submission that that case was incorrectly decided.

3. [62]

   In these circumstances, the essence of Mr Obeid’s argument was that even accepting that the offence can apply to a Member of the Legislative Council, engaging in conduct of the nature of that alleged in the indictment could not constitute such an offence. On the face of it, it is difficult to see why this is correct. Members of Parliament are appointed to serve the people of the State, including their constituents and it would seem that a serious breach of the trust imposed on them by using their power and authority to advance their own position or family interests rather than the interests of the constituents who they are elected to serve, could constitute an offence of the nature of that alleged.

4. [63]

   However, it was submitted by Mr Obeid that the duty imposed on a parliamentarian was a matter of conscience not subject to legal sanction. The authorities to which he referred do not in my opinion support the proposition. It is correct as senior counsel for Mr Obeid pointed out, that in Wilkinson v Osborne supra, the issue was whether a contract between a landowner and two parliamentarians by which the parliamentarians agreed to pressure the government to purchase certain lands was void as contrary to public policy. However, nothing was said to indicate there would not be a criminal sanction for such conduct in an appropriate case. Griffith CJ stated (at 94): “[i]t would be deplorable that any doubt should be allowed to exist as to whether such a bargain is tolerated by the civil – I say nothing of the criminal – law”. Isaacs J, citing Lord Lyndhurst in Egerton v Brownlow (1853) 4 HLC 1 at 161, stated (at 98) that the duty of a member of the legislature was “[i]n the framing of laws it is his duty to act according to the deliberate result of his judgment and conscience, uninfluenced, as far as possible, by other considerations, and least of all by those of a pecuniary nature”.

5. [64]

   Horne v Barber supra, was also a case where an agreement between the parties involved the use of a Member of Parliament to procure the sale of a property to the government. The agreement was held void as against public policy. Knox CJ and Gavan Duffy J described the agreement in the following terms (at 499):

6. [65]

   Isaacs J agreed, stating the duties of a Member of Parliament as follows (at 500):

7. [66]

   Rich J stated the duty in a similar fashion (at 501):

8. [67]

   Neither of these cases involved criminal prosecutions. However, in each of them the justices explained the high public duty imposed upon Members of Parliament and that the law would intervene when a breach occurred. Although each case only involved civil actions, nothing that was said indicated that in an appropriate case criminal sanctions could not apply.

9. [68]

   R v Boston supra was discussed extensively in Obeid v R supra at [71]-[97] in the context of the question of whether a Member of the Legislative Council was a public officer. It is unnecessary to repeat what was said in that case. However, of direct relevance to the present case are the following remarks made by Isaacs and Rich JJ (at 400):

10. [69]

    In McCloy v State of NSW (2015) 257 CLR 178; [2015] HCA 34, Gageler J (at [169]-[171]) cited with approval the passages from the judgments of Knox CJ and Gavan Duffy J, Isaacs J and Rich J in Horne v Barber supra, to which I have referred above, and the remarks of Isaacs and Rich JJ in R v Boston supra (at 400) to which I have also referred above. In Re Day supra the plurality (at [49]-[50]), cited with approval the passage from R v Boston (at 400) referred to above and stated (at [50]) there was no doubt that if their personal financial interests were to intrude, the exercise of a Member of Parliament’s obligations would be rendered difficult or even ineffective. Each of Keane J and Nettle and Gordon JJ writing separately, expressed approval with what was said by Isaacs and Rich JJ in R v Boston supra as to the fundamental obligations of a Member of Parliament: at [179], [269].

11. [70]

    In R v Boulanger [2006] 2 SCR 49, McLachlin CJ writing for the Supreme Court of Canada, after indicating that s 122 of the Canadian Criminal Code reflected the common law misdemeanour of misfeasance in public office, described the purpose of the offence (at [52]) in terms which I would respectfully adopt:

12. [71]

    To these authorities I would add the description of the offence by Lord Millett NPJ in Hong Kong Special Administrative Region v Wong Lin Kay (2012) 15 HKCFAR 185 at [46]:

13. [72]

    A useful formulation of the duty is contained in a direction by O’Bryan J in The Queen v Clarke (1954) 61 ALR 312 at 313:

14. [73]

    In these circumstances it seems to me that conduct such as that alleged in the indictment amounting to a breach of the duty of trust owed by a public officer, is capable of amounting to the offence of misconduct in public office provided the elements of wilfulness and seriousness referred to in Quach supra are made out. Subject to the formal submission made in respect of Ground 3, it is not in dispute in the appeal that a Member of the Legislative Council was a public officer and having regard to the obligations imposed on such a member, there is no reason as a matter of policy that they should not be liable for the offence if the other elements are made out.

15. [74]

    However, it was submitted that the offence could not extend to Members of the Legislative Council because the Regulation made pursuant to s 14A of the NSW Constitution, had the effect of excluding such liability. As was pointed out in Obeid v R supra (at [46]-[47]), s 14A does not operate to support an exclusive jurisdiction of Parliament in respect of the matters referred to in it, or I would add, to an offence the nature of that alleged in the present case. Further, whilst it was accepted in Obeid v R supra that the conduct with which Mr Obeid was charged fell within the scope of the powers conferred upon the House by s 14A(2) (R v Obeid supra at [46]), it must be remembered that s 14A(1) dealt with disclosure rather than with the improper use of position, which is the essence of the offence in question.

16. [75]

    The Regulation takes the matter no further. Leaving aside any question of whether the regulation-making powers would extend to giving Parliament exclusive jurisdiction over matters the subject of the offence charged, there is nothing in the Regulation to suggest this was Parliament’s intention. The Regulation deals with the maintenance of registers of disclosures, the matters to be disclosed and the timing and manner of such disclosures. The Regulation neither expressly, nor by necessary implication, affects the jurisdiction of the Court to deal with the offence charged, much less excludes any liability for improper use by a member of his or her position if the disclosure requirements are met.

17. [76]

    The Code does not alter the position. The Code was adopted for the purpose of s 9 of the Independent Commission Again Corruption Act 1988 (NSW) (the ICAC Act) which relevantly provides as follows:

18. [77]

    It can thus be seen that a contravention of the Code which involves conduct falling within s 8, can amount to corrupt conduct although it does not fall within s 9(1)(a), (b) or (c). Whether or not it falls within the Code, conduct by a Member of Parliament falling within s 8 still could amount to corrupt conduct if it could constitute or involve a criminal offence.

19. [78]

    In the circumstances, it does not seem to me that a Code specifically adopted for the purpose of s 9 of the ICAC Act could be said to oust or limit a duty on members said to exist in the authorities to which I have referred above, or operate to prevent any criminal offence which would contravene the Code from being prosecuted. In this regard it must be remembered that the preamble to the Code acknowledges that Members of Parliament have a “responsibility to maintain the public trust placed in them by performing their duties with honesty and integrity” and “using their influence to advance the common good of the people of New South Wales”, and that their “principal responsibility in serving as Members is to the people of New South Wales”. Further, apart from ICAC being empowered by the ICAC Act to make a declaration of corrupt conduct, there is no sanction imposed by the Code (or otherwise) for its contravention.

20. [79]

    The other objections to the existence of the duty may be dealt with shortly. It was submitted that the duty as encapsulated in the summing-up of the trial judge was a twofold or double duty. I do not think this is correct. The formulation, “act only according to what they believe to be in the public interest and the interests of the electorate and must not use their position for the purpose of promoting their own pecuniary interests”, accurately identified the issue involved in the present case, namely, whether Mr Obeid, rather than acting in the interests of the public and the electorate, spoke to Mr Dunn for the purpose of advancing his or his family’s pecuniary interests. The Crown was correct in submitting that in the particular circumstances of the present case, the manner in which the duty was formulated merely reflected its positive and negative elements.

21. [80]

    Mr Obeid also contended that a breach may occur in respect of conduct which, whilst in the interests of the public was not in the interests of the electorate. He further submitted that the duty as formulated may catch a number of common activities engaged in by Members of Parliament including supporting party policy regardless of the parliamentarian’s personal belief. There are three answers to this submission. First, none of these matters were in issue at the trial. Second, subject to the one exception to which I have referred to in [51] above, the examples given were not ones where the parliamentarian’s purpose was to gain a personal or family pecuniary advantage. Rather they were, as described in R v Pilarinos [2002] BCSC 452 at [79], conflicting public duties which do not lead to criminal sanctions. Third, even where it can be shown in a particular case that the public official used his position for purposes other than those he believed to be in the interests of the public or the electorate, it is also necessary for the requirements of wilfulness and seriousness of the conduct to be made out. It was not suggested how those elements would be satisfied in the hypothetical examples given by Mr Obeid.

22. [81]

    In these circumstances, the submission that no duty of the nature of that directed exists in law should be rejected.

23. [82]

    As I indicated, the formulation of the duty was criticised as not covering the situation where Mr Obeid’s purpose in speaking to Mr Dunn was not solely to advance his pecuniary interests, and failing to direct the jury that the improper purpose must be the substantial or dominant purpose.

24. [83]

    In R v Macdonald; R v Maitland [2017] NSWSC 337, Adamson J, in considering the mental element of the offence, declined to adopt the formulation in par 3(a) of the written directions of the trial judge to the jury. She suggested (at [24]) that it is the motivation, not the intention or belief of the public official, which determines whether the relevant act amounts to misconduct. She stated (at [26]) that to express the requisite mental element in terms of intention is problematic since it has the potential to import concepts of purpose which is apt to confuse the motivation with the inevitable consequence of the action (in that case the grant of an exploration licence), which was to benefit the recipient.

25. [84]

    More importantly for present purposes, her Honour concluded (at [39]) that it was necessary for the Crown to prove not that the motivation was the sole motivation, as submitted by the accused in that case, but rather a substantial motivation. This was the step which the trial judge in the present case declined to take in the exchange with counsel to which I referred at [35] above. It is unnecessary to determine whether the mental element of the offence can be made out in circumstances where the improper purpose or motive was a substantial rather than sole purpose (or motivation). This case was conducted on the basis most favourable to the accused, that is, that the improper purpose had to be the sole purpose.

26. [85]

    In the present case it was submitted that the direction was in error because it failed to have regard to the possibility that an intention by Mr Obeid to confer a benefit for himself or his family was only one of a number of matters motivating him, including the public interest.

27. [86]

    In Hadchiti v R [2016] NSWCCA 63, the Court emphasised that in considering complaints of directions made at the trial, it was important to have regard to the overall impression the whole summing-up would have on the jury: at [68]. Further, as was pointed out in that case, in circumstances where written directions were given, outlining a series of matters of which the jury was to be satisfied, and the judge addressed the jury by reference to those written directions, the form of those directions would be what would frame the approach taken by the jury in their determination: Hadchiti supra at [70]; see also Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242 at [242]; Lin v Tasmania (2015) 252 A Crim R 64; [2015] TASCCA 13 at [108].

28. [87]

    Further, the task of the trial judge is to only sum-up on matters of fact and law which are in issue in the proceedings: Alford v Magee (1952) 85 CLR 437; [1952] HCA 3 at 466. I have read the opening and closing addresses of the Crown. At no stage was it suggested by the Crown that even if Mr Obeid regarded it as in the public interest to make the representations, they could still convict if his dominant or motivating purpose was to advance his pecuniary interests. The Crown case always was that the sole purpose (or motivation) of the conduct in question was the advancement of Mr Obeid’s and his family’s interests. Any alternative was only raised in the exchange between counsel and the bench referred to at [35] above, and was rejected by the trial judge.

29. [88]

    During the course of his closing address to the jury, senior counsel for Mr Obeid made the following remarks concerning the third element of the case charged, namely, that the accused wilfully misconducted himself:

30. [89]

    The defence thus put in issue that the jury could not be satisfied that the sole purpose of Mr Obeid in making the representations to Mr Dunn was to advance his pecuniary interests. Senior counsel for Mr Obeid did not put in issue that whilst Mr Obeid may have intended to advance his interests by making the representations, that was not the dominant or motivating purpose.

31. [90]

    The case thus went to the jury on the basis that it was necessary for the Crown to establish beyond reasonable doubt that Mr Obeid’s sole purpose in making the representation was to advance his or his family’s pecuniary interests.

32. [91]

    As I indicated, the trial judge gave his directions by reference to the written directions handed to the jury. He directed the jury first on the issue the subject of par 3(a) of the written directions. I have set out the relevant parts of the summing-up on this issue at [32]-[34] above.

33. [92]

    These paragraphs make it clear it was necessary for the jury to be satisfied that Mr Obeid did not act in any way in the genuine belief that the public interest or the interests of the electorate warranted him acting as he did (emphasis added).

34. [93]

    The portion of the summing-up complained of formed part of his Honour’s summing-up in relation to the matter referred to in par 3(b) of the written directions. I have extracted that portion of the summing-up at [36] above, the portion complained of appearing in the fourth and fifth paragraph of that extract. However, in the immediately preceding paragraph the trial judge explained that the personal interests of parliamentarians can be affected by their decisions and that does not mean they are guilty of misconduct in advocating a particular position. Further, in the last paragraph of that portion of his summing-up, he made it clear that the jury would only come to consider this issue if the jury was satisfied beyond reasonable doubt, that the representations were made for the purpose of promoting the pecuniary interest of Mr Obeid or his family.

35. [94]

    It follows in my opinion that the directions consistently made it clear to the jury that they had to be satisfied beyond reasonable doubt that the representations were made for the impugned purpose and not because Mr Obeid had any belief it was in the public interest to do so.

36. [95]

    In these circumstances it seems to me there was no misdirection as to the nature of the breach of duty necessary to constitute the offence. If anything, the direction was favourable to Mr Obeid, in requiring the jury to be satisfied beyond reasonable doubt that the sole purpose of the representations was to promote the interests of Mr Obeid and his family.

37. [96]

    In these circumstances, it is unnecessary to consider whether it would be sufficient to constitute the offence that the improper purpose (or motivation) was not the sole purpose and, if so, whether the improper purpose was the dominant or causative purpose: c/f in a different context Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285; [1987] HCA 11 at 293-294. It follows that Ground 1 of the grounds of appeal has not been made out.

38. [97]

    Mr Obeid recognised that in making his submissions on this ground he was confronted with the fact that in Obeid v R supra, the Court held the Supreme Court had jurisdiction to deal with the charged offence. However, senior counsel for Mr Obeid contended that notwithstanding this finding on jurisdiction, there were issues which brought the case within the exclusive cognisance of Parliament.

39. [98]

    Senior counsel for Mr Obeid submitted that what was involved was not a question of jurisdiction but rather what he described as a principle of non-intervention, namely, the courts will not intervene on matters falling within the exclusive cognisance. In that context he referred to the decision of the Full Court of the Supreme Court of South Australia in Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83. In that case Doyle CJ, referring to the decision of the Privy Council in Prebble v Television New Zealand Ltd [1995] 1 AC 321, described the principles in the following terms referring to Article 9 of the Bill of Rights 1689 (1 Will & Mar sess 2 c 2) (at [116]-[119]):

40. [99]

    The Chief Justice, however, emphasised the limitation of the principle, stating (at [122]) that it was only when the Court was invited to challenge the parliamentary consideration of the matter that the principle of non-intervention applies and (at [123]) that the principle must be applied with a mind to its purpose.

41. [100]

    Perry J made similar comments, referring to Prebble supra (at [242]-[243]):

42. [101]

    In Rann v Olsen supra it was argued that defamation proceedings should be stayed because parliamentary privilege attached to evidence of witnesses before a Parliamentary Committee and thus, the respondent would be unable to properly maintain a defence of truth and qualified privilege. In these circumstances, the majority of the Court (Doyle CJ, Mullighan J and Lander J) declined to grant a stay, saying it was a matter for the trial judge on consideration of the pleading in final form and the evidence to be adduced at the trial: at [207], [284], [458]-[459]. The minority (Prior and Perry JJ) would have granted a stay: [233], [280].

43. [102]

    I have dealt with the case at some length because senior counsel for Mr Obeid suggested it was not considered in Obeid v R supra. In fact, it was referred to by the Court in dealing with the question of whether Article 9 of the Bill of Rights require the proceedings be stayed: at [127]-[132]. Mr Obeid’s submission based on Rann v Olsen supra, was rejected by the Court.

44. [103]

    By contrast to the present case, Rann v Olsen involved the question of whether the action should be stayed as proceedings in Parliament were integral to the defence of the action. No such question arises in the present case.

45. [104]

    However, it is convenient to deal further with the question by reference to Mr Obeid’s submissions in the present case. Particular reliance was placed by Mr Obeid on the Code and the Regulation.

46. [105]

    In his written submissions, Mr Obeid emphasised that the question was not one of jurisdiction but rather that in areas where Parliament has exclusive cognisance, courts will exercise “a self-denying ordinance”. He submitted that there are some well-established areas of exclusive cognisance, in particular what he described as the adjudication of misconduct by Members of Parliament in office. The cases cited, however, have all concerned attempts to review determinations of Houses of Parliament on questions of misconduct by Members of the House: Armstrong v Budd (1969) 71 SR (NSW) 386; R v Parliamentary Commissioner for Standards; ex parte Al Fayed [1998] 1 WLR 669; Tafler v British Columbia (Commissioner of Conflict of Interest) (1998) 161 DLR 4th 511; Morin v Crawford (1999) 29 CPC (4th) 362; Harvey v New Brunswick (Attorney General) [1996] 2 SCR 876; Bradlaugh v Gossett (1884) 12 QBD 271. None of these cases involved the question in the present case, namely, whether a court will decline to exercise jurisdiction in respect of the offence of misconduct in public office in circumstances where the conduct occurred outside of the Houses of Parliament and where Parliament has not purported to exercise any jurisdiction in respect of the offence.

47. [106]

    In that context, Mr Obeid in his written submissions referred to the statement of Burger CJ in United States v Brewster (1972) 408 US 501 at 518:

48. [107]

    However, immediately after making that remark, Burger CJ noted the different position in Australia and Canada. Further, in R v Chaytor [2011] 1 AC 684 Lord Phillips PSC (with whom Lord Hope DPSC, Baroness Hale, Lords Brown, Mance, Collins, Kerr and Clarke JJSC agreed) stated (at [38]) that the statement by Burger CJ was not an accurate summary of parliamentary privilege in the United Kingdom or the reason for it.

49. [108]

    However, it was submitted there were a number of cases where the Court exercised a self-denying ordinance. In particular, reference was made to Canada (House of Commons) v Vaid [2005] 1 SCR 667 and President of the Legislative Council (SA) v Kosmas (2008) 175 IR 269. Each of those cases involved claims by persons who might loosely be described as parliamentary employees, a chauffeur to the Speaker in the former case and a secretary of the Legislative Review Committee of Parliament in the latter case. In the former case a claim of immunity based on parliamentary privilege was rejected, although the appellant succeeded on the appeal as the provisions of the Parliamentary Employment and Staff Relations Act, RSC 1985, c 33 (2nd Supp) obliged the respondent to proceed under that Act rather than as he had done under the Canadian Human Rights Act, RSC 1985, c H-6: at [4]-[6], [76], [100]. In that case it was held that to sustain a claim of parliamentary privilege, the assembly or member seeking the immunity must show that the sphere of activity in respect of which the privilege is claimed is one so closely and directly connected with the fulfilment by the assembly of its function as a legislative and deliberative body, including the assembly’s role in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency: at [46]. A similar approach was adopted in President of the Legislative Council (SA) v Kosmos supra at [39], [42].

50. [109]

    Those industrial cases were considered in Obeid v R supra and were held not to be of any assistance on the question of the jurisdiction of the Court: Obeid v R supra at [49]-[50]. For the same reasons, they provide no basis for the Court to decline to exercise jurisdiction in the present case. Adopting what was said in those cases, the conduct whilst in public office was not closely or directly concerned with the fulfilment by the House of its legislative and deliberative functions.

51. [110]

    Senior counsel for the respondent also submitted that misconduct in office is an issue which is fairly and squarely within Parliament’s exclusive cognisance. One immediate difficulty with the submission is that the Court has exercised jurisdiction in cases of bribery of a Member of Parliament to misuse his position as a Member and in the case of dishonest claims for expenses and allowances: see R v Boston supra; R v Chaytor supra.

52. [111]

    Senior counsel for Mr Obeid submitted that Parliament may state expressly in legislation that a matter was in an area of exclusive cognisance and if it did any such statement should not be construed narrowly.

53. [112]

    Senior counsel for Mr Obeid submitted that if a particular charge involves an assessment of what the standards, responsibilities and obligations of a Member of Parliament are, then the matter will lie within the exclusive cognisance of Parliament. He submitted that what should have occurred at the trial was that the Code and presumably the Regulation and any protocol should have been tendered, and if the Court held that Mr Obeid could not have relied on them because those matters were within the exclusive cognisance of parliament, then a stay should have been granted. The reference to the protocol is presumably a reference to the fact that it was suggested at some stage in the proceedings that there was a protocol dealing with Members of Parliament communicating with public servants directly. However, as the trial judge pointed out in his summing-up, the Crown case was not that Mr Obeid misconducted himself by breaching some protocol.

54. [113]

    Senior counsel for Mr Obeid stated that in any case involving misconduct in public office, the relevant standards are critical. He described the Code and the Regulation as the “rule book”, reflecting the duties and obligations of Members of Parliament, as well as being relevant to questions of wilfulness and seriousness. He referred to the emphasis in the present case of Mr Obeid being in a position of conflict.

55. [114]

    Senior counsel for Mr Obeid also referred to s 16 of the Parliamentary Privileges Act 1987 (Cth) which he stated, referring to the judgment of McDougall J in McCloy v Latham [2015] NSWSC 1782 at [14], was declaratory of the common law. He submitted that the Code was a resolution of Parliament to which s 16(3) of the Act would apply, with the result that it could not be relied on to ascertain the intention of Parliament, the intention, motive or good faith of Mr Obeid or the drawing of inferences for or against Mr Obeid.

56. [115]

    Senior counsel for Mr Obeid submitted that parliamentary privilege arose in the present case because it involved analysing matters within the exclusive cognisance, namely, the Code and the Regulation, and the guidelines under the Code. He submitted that the exclusive cognisance extended not only to formal matters but to informal matters such as protocols, which would be involved in cases of this kind.

57. [116]

    Senior counsel for Mr Obeid also submitted that the way the particular parliamentary standards were framed made it difficult, if not impossible, for the courts to adjudicate on them. He pointed to the status of the preamble to the Code (see [49] above), stating that the Court would have difficulty in deciding whether it would have substantive effect. He submitted that Parliament had experience in dealing with these matters.

58. [117]

    Senior counsel for Mr Obeid also referred to what he described as the problem of “inconsistent findings”. He submitted that the duty as formulated by the judge was very different to the preamble to the Code and pointed to the fact there was nothing in the Code requiring disclosure of family interests and the fact that the conflict rules in the Code did not apply to discussions with public servants.

59. [118]

    He also submitted that there would have to be a close connection between the relevant misconduct and the deliberative process of Parliament for the offence to arise. He submitted that there were functions being exercised by Mr Obeid which were very close to the notion of parliamentary scrutiny of the executive. He submitted that in those circumstances, it was more appropriate that the relevant House of Parliament charge a member with misconduct, because determination of whether the Member should be charged would often involve consideration of parliamentary standards. He pointed out that the relevant House of Parliament was the sole judge of whether there is a breach of privilege, submitting that misconduct was a species of contempt.

60. [119]

    He also submitted it would be an affront to Parliament for courts to deal with the issue without reference to parliamentary standards, and equally an affront for courts to seek to interpret such standards.

61. [120]

    Finally, he submitted that the test for exclusive cognisance was not whether it was reasonably necessary for the existence of the relevant House of Parliament and the proper exercise of its functions (see Egan v Willis (1996) 40 NSWLR 650 at 664, 676), but rather what is appropriate or reasonably necessary having regard to the function and status of the House. This was the test propounded by the Solicitor-General for the Commonwealth in the High Court in Egan v Willis (1998) 195 CLR 424; [1998] HCA 71. Senior counsel for Mr Obeid submitted that this submission was not dealt with by the High Court. However, in that case the test of “necessary to the existence of such a body and the proper exercise of the functions which it is intended to execute” was accepted to be the correct test: Egan v Willis (1998) 195 CLR 424; [1998] HCA 71 at [30]-[34], [48], [54] per Gaudron, Gummow and Hayne JJ, [138]-[141] per Kirby J; [189] per Callinan J.

62. [121]

    The Crown submitted that the issues raised on this ground had been determined adversely to Mr Obeid in Obeid v R supra. It was submitted that the decision was a recent statement of the applicable law and factually, is directly on point.

63. [122]

    At the hearing the Crown pointed to what was said in Obeid v R supra (at [53]) to the effect that even on the broadest view of Article 9 of the Bill of Rights, the indictment in no way impeaches speech in Parliament, or any proceedings in Parliament. It was submitted that this conclusion answers any submission that in the circumstances of the present case there is a self-denying ordinance based on Article 9 of the Bill of Rights.

64. [123]

    In that context the Crown also relied on what was said by Lord Phillips PSC in R v Chaytor supra. Counsel referred to his Lordship’s statement (at [61]) that there were good reasons of policy to give Article 9 of the Bill of Rights a narrow ambit, that restricted it to the purpose for which it was enacted – for the Parliament to conduct its business without interference from the Crown or the Crown’s judges. She also referred to Lord Phillips’ citation (at [73]) of the statement in the Joint Committee on Parliamentary Privilege Report of 1999 (HL Paper 43–1, HC 214–1) to the effect that the nearest definition (of the dividing line between privileged and non-privileged activities) is that the areas in which courts ought not intervene extended beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention must be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly. She also relied on similar remarks by Lord Rodger [2011] 1 AC 684 at [112], [117], [123]-[124].

65. [124]

    The Crown submitted that Mr Obeid had not demonstrated how a claim against him based on his lobbying of Mr Dunn to further his own or his family’s pecuniary interests impeached debate or affected the independence of the legislative process. Rather, it was submitted that such conduct could only be seen as undermining the integrity of Parliament and the doctrine of responsible government.

66. [125]

    At the hearing, the Crown submitted that the proper test for determining whether Parliament had exclusive cognisance over a matter was set out in Egan v Willis (1998) 195 CLR 424; [1998] HCA 71 in the passages to which I have referred at [120] above.

67. [126]

    The Crown also submitted that not every act of a Member of Parliament engages the privilege. It was submitted that the mere fact that the Member of Parliament engages in conduct while “in office”, begs the question of whether the conduct was likely to impact adversely on the core or essential business of Parliament.

68. [127]

    The Crown also submitted that the contention that misconduct requires the application of formal and informal standards best judged by Parliament, mistakenly conflates breach of parliamentary standards with the common law offence. It was submitted that the fact that elements of the common law offence may fall within Codes and protocols established by Parliament to govern its affairs, does not establish a sufficient connection between the offence and the core business of Parliament for the court to refrain from exercising jurisdiction. It was submitted that the elements of the offence did not require reference to parliamentary standards for determination. It was further submitted that the case was not one where Mr Obeid failed to disclose his interest, but rather took active steps to lobby Mr Dunn to further his own or his family’s pecuniary interests. It was submitted that for this reason there was no possibility of inconsistent findings or an affront to the dignity of Parliament.

69. [128]

    In answer to the submission that Parliament may have wider sanctions, the Crown submitted that there was no sanction Parliament could impose on Mr Obeid because he was no longer a Member of the Legislative Council.

70. [129]

    The Solicitor-General was granted leave to appear as amicus curiae. In his written submissions he submitted that the principle of exclusive cognisance flows from recognition of the unique privileges enjoyed by Houses of Parliament and their members. He submitted that Article 9 of the Bill of Rights was confirmatory of the common law, citing Egan v Willis (1998) 195 CLR 424; [1998] HCA 71 at [69] per McHugh J and R v Chaytor supra at [102] per Lord Rodger.

71. [130]

    The Solicitor-General submitted that the Houses of the NSW Parliament do not share the same privileges as the House of Commons. He submitted that since Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225, the powers and privileges of then colonial legislatures have been cast in terms of what was “necessary to the exercise of such a body, and the proper exercise of the functions which it is intended to execute”. He submitted, however, that as in Obeid v R supra, the case could be determined on the assumption, favourable to Mr Obeid, that the powers and privileges of the Legislative Council are the same as those of the House of Commons.

72. [131]

    The Solicitor-General submitted that a legislative power to punish for contempt does not oust the jurisdiction of the Court in civil and criminal matters. He submitted, referring to Criminal Justice Commission v Nationwide News Pty Ltd (1994) 74 A Crim R 569 at 582 and R v Chaytor supra at [80]-[83] and [121]-[122], that the criminal jurisdiction and the contempt jurisdiction of Parliament, when the conduct involves an ordinary crime, is an overlapping jurisdiction. He submitted that this Court was correct in Obeid v R supra (at [43]-[45]) in concluding that the contention that Parliament possesses exclusive cognisance of the criminal conduct of its members was inconsistent with s 13A of the NSW Constitution and with R v Boston supra and R v White (1875) 13 SCR (NSW) (L) 322. He pointed to the fact that the cases relied on by Mr Obeid in support of the proposition that courts have on every occasion refused to “embark on a determination of the issue of misconduct of an MP”, involved cases where courts have declined to review findings of misconduct made by Parliament: see [105] above.

73. [132]

    The Solicitor-General submitted that Mr Obeid had failed to establish a sufficient connection between the offence and Parliament’s privilege. He submitted that it was not enough that the impugned conduct occurred in the course of or connected with a particular office. He submitted that although it was established that the representations were made in the course of or connected with Mr Obeid’s function as a Member of the Legislative Council to scrutinise the Executive and communicate with the Executive about matters affecting the State, he failed to identify any feature which suggested it was undertaken in the course of or incidental to any business in Parliament or one of its committees, or otherwise related to the legislative or deliberative process of Parliament. He referred to the statement by Lord Phillips PSC in R v Chaytor supra at [122], that there was nothing in the allegations in that case which related to the legislative or deliberative process of the House or its members. In that case, the allowance system administered by the House the subject of the fraud merely provided the setting for the crime. He submitted the offence in the present case was of a similar nature, Mr Obeid’s status as a Member of Parliament providing the occasion for the offence, but the conduct did not relate to the legislative or deliberative process of the Legislative Council.

74. [133]

    The Solicitor-General submitted that the case against Mr Obeid did not depend upon determination of standards established and understood only by the NSW Parliament. He submitted that the offence did not rely on any contravention of the Code, s 14A of the NSW Constitution or the Regulation.

75. [134]

    This Court in Obeid v R supra determined that the Court had jurisdiction to hear the charge the subject of the indictment. It did so for a number of reasons, all of which are equally applicable to the argument as it is sought to be reframed. The first of these reasons was that the exclusive cognisance of the Parliament was originally based on the proposition that Parliament had “its own peculiar law which was not known to the courts” (R v Chaytor supra at [64]), but this has no bearing upon the Supreme Court’s jurisdiction to hear and determine the common law charge the subject of the indictment: at [36]. Nor does it provide any basis to decline to exercise jurisdiction.

76. [135]

    The second reason was that although the Court is the ultimate arbiter of the existence of a privilege or power on the part of a parliamentary chamber, but has no authority to decide whether the exercise of that power (if it existed) was or was not warranted, does not mean the Court lacks jurisdiction with respect to the claim. The Court pointed out that in R v Chaytor supra the Supreme Court made it clear that the House of Commons does not assert an exclusive jurisdiction to deal with criminal conduct: R v Chaytor supra at [83], [108]. The Court in Obeid v R supra at [40], cited the passage from the judgment of Lord Rodger (at [108]) to the effect that if the conduct questioned would constitute an offence under the ordinary criminal law of England, then the offence can be prosecuted in the criminal courts in the usual way. An exception to that principle will arise where the existence of the parliamentary privilege makes it impossible to fairly determine the issues between the parties (see Prebble supra at 338), in which case the proceedings should be stayed, or if the proceedings in fact interfered with the freedom of the House of Parliament to conduct its legislative and deliberative business without interference from the court: R v Chaytor supra at [61]; Egan v Willis (1996) 40 NSWLR 650 at 664, 676; (1998) 195 CLR 24; [1998] HCA 1 at [31]-[32]. If the case does not fall within such exceptions, there is no reason for a court to decline to exercise jurisdiction. Indeed, not to do so in many such cases would constitute an affront to the administration of justice.

77. [136]

    The third reason for the Court rejecting the submission that the court lacked jurisdiction in Obeid v R was that s 14A of the NSW Constitution said nothing to suggest an exclusive jurisdiction of a chamber of Parliament, whilst s 13A of the Constitution was inconsistent with that submission: Obeid v R supra at [42]-[47]. Nor do those provisions provide any reason that a court should decline to accept jurisdiction, except in the limited circumstances to which I have referred above.

78. [137]

    The fourth reason was that cases such as R v Boston supra, R v White supra and R v Greenway [1998] PL 357, were consistent with the Court having jurisdiction. They were also consistent with the Court exercising such jurisdiction in a case such as the present.

79. [138]

    In Obeid v R supra at [49]-[50], the Court also pointed out that the industrial cases of Vaid supra and Kosmas supra do not support the proposition that the Court had no jurisdiction to entertain the claim. I have dealt with these cases at [108]-[109] above. They provide no basis for a court to decline to exercise jurisdiction in a case of this nature.

80. [139]

    Further, in Obeid v R supra the Court pointed out that the indictment does not in terms make allegations of any conduct within the walls of Parliament relating only to the internal practices of the chamber. It was also pointed out that even on the broadest view of Article 9 of the Bill of Rights, the indictment in no way impeaches speech within Parliament or any proceedings within Parliament: Obeid v R supra at [52]-[53]. This further points to the fact that not only does the Court have jurisdiction to deal with the matters the subject of the charge, but it was entitled to exercise that jurisdiction.

81. [140]

    As I pointed out at [102] above, the Court in Obeid v R supra rejected the application for a stay based on the decision of the Full Court of the Supreme Court of South Australia in Rann v Olsen supra. For the reasons given in Obeid v R for rejecting the application and for the reasons given by me at [103] above, nothing said in that case provides support for the proposition that the Court should decline to exercise jurisdiction in the present case.

82. [141]

    In these circumstances it seems to me that the question of whether the Court should have exercised a self-denying ordinance and declined to exercise jurisdiction, is contrary to what was decided in Obeid v R supra and should be rejected. However, as I pointed out above, Mr Obeid in the present proceedings placed particular emphasis on the proposition that the proceedings involved an assessment of the standards, responsibilities and obligations of a Member of Parliament, which meant the matter fell within the exclusive jurisdiction of the Parliament and was not within the cognisance of the Court.

83. [142]

    That submission can be dealt with shortly. First, the indictment does not place any reliance on the Code, the Regulation or any protocol. In relation to the protocol, Mr Obeid denied that any such protocol existed.

84. [143]

    Second, neither the Code nor the Regulation directs itself to the issue in the present case, namely, whether the conduct of Mr Obeid in making representations to Mr Dunn for the purpose of gaining a pecuniary advantage for him or his family, constituted misconduct in public office. In these circumstances there is no occasion to have regard to that material in considering whether the elements of the offence have been made out. It was submitted that because Parliament had the power to deal with contraventions of the Code by Members of the Legislative Council, the Court should have declined to exercise jurisdiction. The authorities to which I have referred, which show the Court and the Parliament may have concurrent jurisdiction in respect of criminal matters, means that submission should be rejected.

85. [144]

    Third and aligned to the second matter, there is nothing in the Code or the Regulation which would in fact have assisted Mr Obeid in the prosecution of his defence. I have dealt with this in greater detail in dealing with Ground 7, but for present purposes it suffices to note that in my view there is nothing in the Regulation which would have assisted Mr Obeid. Further, the fact that disclosure of family interests was not a mandatory requirement in the Code provides no assistance, particularly in circumstances where the preamble to the Code contained the following provisions:

86. [145]

    As I indicated, Mr Obeid contended that the test for exclusive cognisance is what is appropriate and necessary having regard to the function and status of the House rather than the test of reasonable necessity: see [120] above. However, whichever test is adopted the result is the same.

87. [146]

    These proceedings were not so closely connected with proceedings in Parliament so as to make it either appropriate or necessary for the Court to decline to exercise jurisdiction: R v Chaytor supra at [122].

88. [147]

    In these circumstances, this ground of appeal has not been made out.

89. [148]

    This matter was decided adversely to Mr Obeid in Obeid v R supra. Ultimately senior counsel for Mr Obeid only made a formal submission that the case was wrongly decided. In those circumstances, this ground should be rejected.

90. [149]

    The relevant written direction was contained in par 3(c) of the written directions which I have set out at [28] above.

91. [150]

    The trial judge emphasised, in his summing up, that this element of the offence (like the other elements) must be satisfied beyond reasonable doubt. He made the following remarks to the jury in that context:

92. [151]

    Early in his summing-up the trial judge elaborated on the task confronting the jury on this element in the following terms:

93. [152]

    Subsequently in his summing-up, he emphasised the need to prove Mr Obeid’s actual knowledge to establish this element:

94. [153]

    He also emphasised this requirement was additional to the requirement in par 3(a) of the written directions:

95. [154]

    Senior counsel for Mr Obeid accepted that it was appropriate for the trial judge to direct that wilfulness was a necessary element of the offence. He submitted this was consistent with Quach supra at [46]. However, he contended that the trial judge erred in explaining this concept to the jury.

96. [155]

    Mr Obeid made four interrelated criticisms of the direction. First, it referred to what Mr Obeid was obliged to do, not to what was unlawful; second, it did not specify whether the obligations were legal, ethical, political or otherwise; third, it did not specify the content of the obligation; and further, the obligation was not linked back to the content of the duty which was the subject of the trial judge’s direction on misconduct.

97. [156]

    In addition, Mr Obeid submitted the trial judge erred in his direction on recklessness, in that he failed to direct that knowledge of a risk of unlawful conduct could only be the basis for conviction if Mr Obeid was aware of a risk that this would occur, and that it was unreasonable for him to take that risk.

98. [157]

    In relation to each of the complaints, Mr Obeid placed considerable reliance on the development of the law in this area in the judgments of the Hong Kong Court of Final Appeal.

99. [158]

    In Shum Kwok Sher v Hong Kong Special Administrative Region (2002) 5 HKCFAR 381, Sir Anthony Mason NPJ with whom the other members of the Court agreed, formulated the elements of the offence in the following terms (at [84]-[86]):

100. [159]

     At the time of that judgment the Courts of Hong Kong had followed the decision of the House of Lords in R v Caldwell [1982] AC 341. In that case Lord Diplock, in dealing with recklessness in respect of a charge brought under s 1(2) of the Criminal Damage Act 1971 (UK), which relevantly provided for an offence of damaging property being reckless as to whether the life of another was endangered, classified the concept of recklessness in the following terms (at 354):

101. [160]

     That passage was the subject of considerable criticism in that it allowed the offence to be committed in circumstances where the accused had not given any thought to the consequences, effectively eliminating any mental element.

102. [161]

     R v Caldwell supra, was overruled in R v G [2004] 1 AC 1034. In that case Lord Bingham of Cornhill stated the relevant principle in the following terms (at [41]):

103. [162]

     Lord Bingham explained (at [28]) that what he was embarking on was a question of statutory construction, and he was not addressing the meaning of reckless in any other statutory or common law context.

104. [163]

     Nevertheless, the United Kingdom Court of Appeal in Attorney General’s Reference (No 3 of 2003) [2005] QB 73 seemed to reject the first qualification of Sir Anthony Mason NPJ in Shum Kwok Sher supra at [85], and in respect of recklessness adopted the test in R v G supra. Pill LJ, delivering the judgment of the Court, made the following remarks (at [45]-[46]):

105. [164]

     In Sin Kam Wah v Hong Kong Special Administrative Region (2005) 8 HKCFAR 192, Sir Anthony Mason NPJ with whom the other members of the Court agreed, said (at [44]) that in dealing with the issue of recklessness juries should be directed in terms of the subjective interpretation of recklessness upheld in R v G supra. In those circumstances, he reformulated his statement of the elements of the offence of misconduct in public office in the following terms (at [45]-[46]):

106. [165]

     Counsel for Mr Obeid pointed out that the same approach had been followed in subsequent decisions in Hong Kong. He referred to Chan Tak Ming v Hong Kong Special Administrative Region (2010) 13 HKCFAR 745 at [29], see also at [3] and Hong Kong Special Administrative Region v Wong Lin Kay supra at [24].

107. [166]

     Mr Obeid submitted that the direction of the trial judge was erroneous in that, contrary to what was said in Sin Kam Wah supra, there was no reference to Mr Obeid knowing that his conduct was unlawful or acting in wilful disregard of the risk that the conduct was unlawful. Senior counsel for Mr Obeid described the direction as a “generalised equation about knowing that you were obliged not to use your position in that way”. He submitted that this invited the jury to decide that Mr Obeid knew he ought not behave in that way or worse, that he knew it was possible he ought not behave in that way.

108. [167]

     In relation to recklessness it was submitted that having regard to what was said in R v G supra, adopted in Attorney General’s Reference No 3 supra, and in Sin Kam Wah supra, recklessness required an awareness of the risk and knowledge that it was in the circumstances unreasonable to take that risk. It was submitted that the trial judge erred in failing to direct that it was unreasonable to take the risk.

109. [168]

     Mr Obeid accepted that in NSW, the Crimes Act 1900 (NSW) conception of recklessness did not require it be unreasonable to take the risk: R v Coleman (1990) 19 NSWLR 467. However, he submitted that the position was different in the context of a common law offence.

110. [169]

     In dealing with the four criticisms of the directions to which I have referred above, the Crown submitted that the first two complaints were a matter of semantics. It was submitted that the trial judge was given some flexibility in the language used in directing the jury: R v Spathis [2001] NSWCCA 476 at [218]. Further it was submitted that the formulation of the elements of the offence by Sir Anthony Mason NPJ should not be treated as if it was a statute.

111. [170]

     In relation to the third and fourth complaints it was submitted that when the direction was considered as a whole, the complaints had no merit.

112. [171]

     In relation to the question of recklessness the Crown submitted, referring to Coleman supra, Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12 and Aubrey v The Queen [2017] HCA 18; (2017) 91 ALJR 601, that it is not a requirement of law in this country that a direction necessarily be given that it was unreasonable to take the risk. The Crown emphasised that Lord Bingham in R v G supra, expressly confined his remarks to offences under s 1 of the Criminal Damage Act 1971 (UK).

113. [172]

     As I stated in dealing with the first ground of appeal, it is important to consider the directions given by the trial judge as a whole and consider the matter complained of in context: see [86]-[87] above. The first complaint was that the jury was not directed that to convict it was necessary to determine that Mr Obeid was aware that the conduct was unlawful, or Mr Obeid acted in wilful disregard of the risk the conduct was unlawful.

114. [173]

     It is correct that the trial judge did not state in terms that it was necessary for the jury to find that Mr Obeid knew the conduct was unlawful or wilfully disregarded that risk. However, the jury had already been directed on the matters in pars 3(a) and 3(b) of the written directions, which identified the conduct and made it clear that the jury was required to be satisfied that the conduct was a breach of the duties and obligations of a Member of Parliament.

115. [174]

     In that context it must also be remembered that the jury had already been directed that as a matter of law in performing their functions, Members of the Legislative Council must act only according to what they believe to be in the public interest and the interest of the electorate: see [36] above.

116. [175]

     Paragraph 3(c) of the written directions assumes the jury was satisfied that the conduct was committed and that it was in breach of the duties and obligations of Mr Obeid’s office. Paragraph 3(c) addresses whether in those circumstances Mr Obeid was aware the conduct as found was in breach of that obligation. There was no need in my view to state the conduct was unlawful as distinct from a breach of the obligation which had been explained to the jury and which the jury had found was in fact breached.

117. [176]

     It follows that the trial judge did not err in directing the jury in this fashion. The direction in my view would only be understood in the circumstances as being directed to a legal obligation. Further, the oral direction to which I have referred in [36] above, clearly spelt out the content of that obligation.

118. [177]

     The next complaint which was not elaborated upon, either in writing or orally, was that the obligation was not linked back to the content of the duty which was the subject of the trial judge’s direction on misconduct. However, it seems to me that the only way the jury could have interpreted par 3(c) of the written directions was by reference to the duty in respect of which specific directions had been given. The reference in the oral direction to Mr Obeid’s knowledge of his duty as a parliamentarian (see [152] above) could only relate to the duty as it had been previously articulated by the trial judge.

119. [178]

     Further, notwithstanding what was said in R v G supra, Attorney General’s Reference No 3 supra and Sin Kam Wah supra, there was no requirement to direct the jury that in dealing with recklessness it was necessary for them to be satisfied beyond reasonable doubt that it was unreasonable for Mr Obeid to take the risk.

120. [179]

     This is so for the following reasons. First, as Mr Obeid conceded, the concept of recklessness under the Crimes Act does not include any requirement of a finding that it was unreasonable to take the risk: R v Coleman (1990) 19 NSWLR 467. The test in the case of statutory offences other than murder was a realisation on the part of the accused that the particular type of harm might be inflicted (that is, may possibly be inflicted). Hunt J, with whom the other members of the Court agreed, also stated that the possibility test was always accepted for the common law offence of rape: at 476.

121. [180]

     In Blackwell v The Queen (2011) 81 NSWLR 119; [2011] NSWCCA 93, Beazley JA (as her Honour then was) after referring to Coleman supra and R v G supra, stated (at [76]) that where the mental element of the offence is recklessness the Crown must establish foresight of the possibility of the relevant consequence: see also at [78]. James J agreed and Hall J, although dissenting as to the result, agreed with her Honour on this issue: at [121], [171].

122. [181]

     None of those cases added the additional requirement, namely that it was necessary to establish that it was unreasonable to take the risk. This question was considered by the High Court in Aubrey v The Queen supra. In that case the plurality held that what was said in Coleman was correct so far as recklessness as to the infliction of grievous bodily harm was concerned. In relation to the additional requirement that it was unreasonable to take the risk, they made the following comments (referring to R v G supra and Attorney General’s Reference No 3 supra):

123. [182]

     In the present case, the jury was directed that it was necessary to establish that the sole purpose of the impugned conduct was to advance the pecuniary interests of Mr Obeid or his family. This was not something which could be said to have social utility. In those circumstances, there was no need for a direction along the lines suggested in Aubrey v The Queen supra. The trial judge did not err in failing to give one.

124. [183]

     It does not seem to me that Mr Obeid directly put in issue that the requirement of foresight of the possibility of risk should be replaced with a test of probability. To the extent that it was, it should be rejected as inconsistent with Aubrey v The Queen supra.

125. [184]

     In these circumstances, this ground of appeal has not been made out.

126. [185]

     Mr Obeid submitted that the verdict was unreasonable in that it was not open to the jury to be satisfied beyond reasonable doubt that the conduct was wilful.

127. [186]

     Mr Obeid submitted the Crown relied on the following circumstances to establish this element of the offence:

128. [187]

     Senior counsel for Mr Obeid submitted it was not open to the jury to be satisfied beyond reasonable doubt that his client’s conduct was wilful. He submitted that the matters in (iii), (iv) and (vi) above, only made what he described as “the fairly rudimentary point” that Mr Obeid must have known what he did. He submitted nothing was really added by the fact that he was a Minister and a Member of Parliament.

129. [188]

     In relation to the protocol, senior counsel for Mr Obeid noted the trial judge in summing-up pointed out that the Crown case was not that Mr Obeid misconducted himself by breaching some protocol, so that took the matter no further at least so far as wilfulness was concerned. He submitted this evidence did not establish that Mr Obeid knew of the duty alleged or that he was in breach of it.

130. [189]

     The Crown submitted that the matters referred to above (at [186]) were capable of sustaining an inference beyond reasonable doubt that the applicant’s misconduct was wilful. The Crown submitted at the hearing that in considering whether a verdict was unreasonable in a circumstantial case, the evidence had to be considered as a whole rather than piecemeal.

131. [190]

     In addition to the matters referred to in (i) to (vi) above, reliance was placed on the evidence of Mr Tripodi, who was the Minister for Ports and Waterways at the time, that if he had a financial interest in something he would not have advocated for it in any form.

132. [191]

     In relation to the protocol the Crown also referred to the evidence of Mr Oxenbould, the then Chief Executive Officer of the Maritime Authority of NSW, that in his experience there was a protocol and if Members of Parliament had an issue they wished to raise with a department, they would normally go through the Minister’s office and it would be very unusual for a Member of Parliament to make an inquiry directly to one of the management teams within a department rather than through the Minister’s office.

133. [192]

     The Crown also referred to the evidence of Mr Dunn as to the representations which were made and to the fact that Mr Dunn’s evidence was that Mr Obeid was agitated at the time he made the representations.

134. [193]

     I have summarised the principles to be applied in considering whether a verdict is unreasonable in a case based on circumstantial evidence in Dickson v R [2017] NSWCCA 78 at [84]-[86], Johnson and Fullerton JJ agreeing:

135. [194]

     In the present case it was open to the jury, in the sense I described, to reach the conclusion beyond reasonable doubt that Mr Obeid knew his conduct was unlawful or he foresaw that that was a possibility.

136. [195]

     It is important that what was found by the jury was that Mr Obeid had misused his position solely for the purpose of advancing his or his family’s pecuniary interests: see the directions set out in [32]-[33] above and the discussion of this issue in Ground 1 (emphasis added).

137. [196]

     Mr Obeid at the relevant time was a parliamentarian of 16 years standing and had been a Minister for four of those years. It is inconceivable that a politician of that standing and experience did not know that his duty was to serve the public interest and that he was not elected to use his position to advance his own or his family’s pecuniary interests. Whilst it would not be enough for the jury to be satisfied that he knew what he did was morally and ethically wrong, it does seem to me that the jury was entitled to conclude that he knew what he was doing was wrong in law, or at least recognised the risk that it was unlawful and proceeded in any event.

138. [197]

     Further, it must be remembered that Mr Obeid did not disclose to Mr Dunn his financial interest in the businesses. The jury was entitled to take this into account in determining whether Mr Obeid knew that his conduct was unlawful or at least there was a possibility of it being so.

139. [198]

     In these circumstances I am satisfied the jury was entitled to conclude that Mr Obeid’s conduct was unlawful. I would have reached the same conclusion.

140. [199]

     I have reached this conclusion without regard to the question of Mr Obeid’s knowledge of the protocol or the evidence of Mr Oxenbould. Whether or not there was a protocol or procedure for Members of Parliament to deal with government departments, is not to the point. It does not alter the fact that it is inconceivable that Mr Obeid not know that it was improper to use his position solely for the purpose of advancing his or his family’s pecuniary interests.

141. [200]

     It follows that this ground of appeal has not been made out.

142. [201]

     The relevant written direction given by the trial judge was contained in par 4 of the written directions, to which I have referred above at [28]. His Honour elaborated on this direction in his summing-up:

143. [202]

     The direction was based on the formulation of the elements of the offence in Quach supra. In that case, Redlich JA set out the element of the offence the subject of this ground of appeal in the following terms (at [46]):

144. [203]

     Mr Obeid accepted that the direction was consistent with the formulation of this element of the offence in Quach supra. Senior counsel for Mr Obeid also accepted that the direction imposed a higher standard for this element of the offence than that imposed by Sir Anthony Mason NPJ in Sin Kam Wah supra (at [45]): see [164] above.

145. [204]

     However, he submitted that this formulation of the element by the Victorian Court of Appeal was plainly wrong. He submitted that Redlich JA, with whom the other members of the Court agreed, was in error in concluding, contrary to what was said by Lord Widgery CJ in R v Dytham [1979] QB 722 at 727-728, that it was not an element of the offence that the culpability must be of such a degree that the impugned misconduct was calculated to injure the public interest so as to call for condemnation and punishment. In reaching this conclusion, Redlich JA agreed with the view of Sir Anthony Mason NPJ in Shum Kwok Sher supra at [76], that the expression “calculated to injure the public interest” is not the language of definition: at [42].

146. [205]

     Mr Obeid submitted that the direction was wrong in law because it omitted two essential elements. Firstly, that misconduct must be so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder and, secondly, that it must have the effect of harming the public interest.

147. [206]

     Mr Obeid referred to Attorney General’s Reference No 3 supra, where it was stated (at [61]) that this element of the offence required misconduct to such a degree as to amount to abuse of the public’s trust in the officeholder. He also relied on the following statement (at [56]):

148. [207]

     As Redlich JA noted in Quach (at [42]), the requirement that the conduct was calculated to injure the public interest was not included in the element of the offence, although it was referred to by Pill LJ (at [57]).

149. [208]

     Mr Obeid further relied on what was said by Lord Thomas of Cwmgiedd CJ (delivering the judgment of the Court) in R v Chapman [2015] QB 883. In dealing with this element of the offence, his Lordship made the following comments (at [34]):

150. [209]

     It is not entirely clear from that passage of his Lordship’s judgment whether the two means of assisting the jury were cumulative or alternative. However, it is important to note he stated that they were means of assisting the jury. However, in noting that the trial judge referred to the conduct being so serious as to amount to an abuse of public trust, his Lordship stated that that did not explain to the jury how to determine whether the conduct was of a sufficient level of seriousness, or whether the misconduct had the effect of harming the public interest: at [38].

151. [210]

     In R v France [2016] 4 WLR 175 (at [8]), the United Kingdom Court of Appeal stated that R v Chapman supra affirmed the third element of the offence as being (misconduct) to such a degree as to amount to an abuse of the public’s trust in the office holder.

152. [211]

     In R v Norman [2017] 4 WLR 16, Lord Thomas of Cwmgiedd CJ (at [44]) described the third element of the offence as: “requiring an affront to the standing of the public office held, and conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder; the culpability must be of such a degree that the misconduct impugned had the effect of injuring the public interest so as to call for condemnation and punishment”.

153. [212]

     Mr Obeid submitted the approach in these cases should be followed in preference to Quach.

154. [213]

     Counsel for Mr Obeid also submitted that it was erroneous for the trial judge to have directed the jury that they had to be satisfied that the conduct merited criminal punishment. He relied in that context on the dissenting judgment of Heydon J in King v The Queen (2012) 245 CLR 588; [2012] HCA 24, where in considering a direction on a charge of dangerous driving causing death contrary to s 318(1) of the Crimes Act 1958 (Vic), his Honour stated (at [68]) that a direction that a jury should not convict unless the accused’s conduct is “deserving of punishment by criminal law” is curious, as it is a legislature which determines what conduct merits punishment. The majority held it was not necessary to give a direction that the offence merited criminal punishment in the circumstances of the particular charge: at [45].

155. [214]

     It should be noted that in Hong Kong Special Administrative Region v Ho Hung Kwan Michael (2013) 16 HKCFAR 525; Chan ACJ (at [42]) stated that the prosecution had failed to cross the high threshold of proving the appellant’s conduct was so serious as to call for criminal sanctions.

156. [215]

     The Crown submitted that Quach supra expressly adopted the reasoning of Sir Anthony Mason NPJ in Shum Kwok Sher supra. In fact, the Court adopted his Honour’s formulation in Sin Kam Wah supra. However, the difference is immaterial.

157. [216]

     The Crown submitted that the authorities were broadly consistent in that they all aimed to assist a jury to determine the culpability or seriousness of the misconduct in a given case. It was submitted that the directions were merely different descriptions of the same element adapted to cover the different forms of misconduct in particular cases.

158. [217]

     The Crown in that context pointed to what was said by Lord Thomas of Cwmgiedd CJ in R v Chapman supra at [30]:

159. [218]

     The Crown also pointed to the fact that the formulation of the element in Quach, which refers to the importance of the public objects which they (the officer holders) serve and the nature and the extent of the departure from those objects, incorporated the same matters as the formulations in the United Kingdom cases.

160. [219]

     The Crown also submitted that the summing-up, in conjunction with the written directions, dealt with all matters the subject of the present complaint.

161. [220]

     Further, the Crown submitted that this issue had been decided adversely to Mr Obeid in Obeid v R supra.

162. [221]

     In Obeid v R supra, the Court rejected the submission that the statement of the second element of the offence in Quach, “in the course of or connected to the public office”, was plainly wrong. Although no specific complaint was made in that case about the element the subject of this appeal, the Court made the following remarks (at [141]):

163. [222]

     What was pointed out in that case was that the offence was limited to misconduct which merited criminal punishment. It must be shown that the misconduct is so serious as to merit criminal punishment, as distinct from civil remedies such as damages (where the tort of misfeasance in public office applies), parliamentary sanction, or for that matter, public condemnation.

164. [223]

     It has been consistently accepted that to explain this element of the offence to a jury, it is helpful to refer to the fact that it is necessary to conclude that the conduct amounts to an abuse of public trust in order to satisfy the element. The trial judge in his summing-up expressly pointed this out to the jury, stating that “[t]he misconduct must be so serious that it amounts to an abuse of the public’s trust in the office holder”. In addition, the trial judge emphasised what public objects Members of the Legislative Council serve. There can be no question that this issue was properly brought to the jury’s attention.

165. [224]

     The next criticism of the formulation of this element of the offence in Quach supra, was that it did not refer to the conduct being below acceptable standards. Although it may be necessary in some cases to direct a jury to this effect, I do not think that Quach was wrongly decided by not stating this as an element of the offence. As was pointed out in Obeid v R supra (at [140]), it would be necessary for this Court to conclude that Quach was plainly wrong in failing to include a concept of a breach of acceptable standards as an element of the offence. I do not think Quach was incorrect on this issue, much less plainly incorrect.

166. [225]

     Further, the fact that the concept of “departure from acceptable standards” was included in the definition of this element of offence in some cases in other jurisdictions, does not convince me that Quach was wrong, much less plainly wrong. The first case relied upon, Attorney General’s Reference No 3 supra, involved allegations against police officers relating to a death in custody. In such a case, as Pill LJ pointed out (at [56]), it would be appropriate to consider acceptable standards in considering whether the neglect by the officers was sufficiently serious to warrant a criminal conviction. However, his Lordship did not include a departure from acceptable standards as part of this element of the offence. His description of the elements of the offence, which has been adopted in subsequent cases in the United Kingdom, was as follows (at [61]):

167. [226]

     Of the recent English cases, R v Chapman supra did not state it was necessary to establish a departure from acceptable standards as distinct from an abuse of public trust in stating this element of the offence: at [34]-[38]. In R v France supra, (at [8]) this element of the offence was formulated in the same way as in Attorney General’s Reference No 3 supra at [61].

168. [227]

     Although the trial judge in his written directions, consistently with Quach supra, did not express the third element of the offence in the same terms as in Attorney General’s Reference No 3 supra, he expressly stated in his summing up that the jury had to be satisfied that the misconduct was so serious that it amounted to an abuse of the public’s trust in the office holder.

169. [228]

     Subsequently in R v Norman supra, Lord Thomas did describe this element of the offence as conduct so far below acceptable standards as to amount to an abuse of public trust in the office holder: see [211] above. However, prior to making those remarks, Lord Thomas (at [42]) adopted Pill LJ’s description of the elements without disapproval. In those circumstances it seems his subsequent remarks were made in elaboration of the definition, rather than seeking to further define the elements.

170. [229]

     None of the Hong Kong cases to which I have referred above suggested that it was necessary to refer to a departure from acceptable standards as an element of the offence.

171. [230]

     Thus, the overseas authorities provide no support at all for the proposition that it is necessary to inform a jury that an element of the offence is a departure from acceptable standards. As I have indicated, whilst it may be necessary to explain this element to the jury in those terms in some cases, particularly when the offence is said to arise out of nonfeasance rather than misfeasance where standards governing the matter in question existed, that is not the case here. In this case, a jury having found that Mr Obeid used his position solely for the purpose of advancing his or his family’s pecuniary interests and in breach of public trust, would inevitably conclude that it was a departure from acceptable standards.

172. [231]

     As Lord Thomas pointed out in the passage in R v Chapman, to which I have referred at [217] above, no exact form of words is necessary but the direction must take into account the context in which the misconduct was said to occur. Although it is true that, unlike Quach supra, the UK cases define the third element of the offence as being to such a degree as to amount to an abuse of the public’s trust in the office holder, even if this was necessary, the trial judge in his summing up expressly directed the jury to that effect: see [201], [223] above.

173. [232]

     Nor do I think that it is necessary to state that the conduct in question was against the public interest. I respectfully agree with Redlich JA and Sir Anthony Mason NPJ that the expression is a method of emphasising the seriousness of the offence rather than one of definition: see [204] above. It is not included as an element of the offence in the formulation in Attorney General’s Reference No 3 supra, which has been adopted in the subsequent English cases. Further, it finds no support in the Hong Kong cases.

174. [233]

     In the present case, conduct amounting to an abuse by a Member of Parliament of his position is clearly against the public interest. It was not necessary, in my view, for this to be explicitly spelt out in the circumstances of the present case.

175. [234]

     It was also suggested that Quach supra was wrongly decided, insofar as it was suggested that it was necessary to direct the jury that the conduct merited criminal punishment. As I indicated, reliance was placed on the judgment of Heydon J in King v The Queen supra: see [213] above. Heydon J was in dissent in that case. However, his Honour was prepared to accept the direction may be appropriate in cases involving allegations of criminal negligence in distinguishing the type of negligence which may give rise to civil liability from that necessary for criminal liability: at [68]. The same may be said for distinguishing the tort of misfeasance in public office from the criminal offence. It certainly could not be said that Quach supra was plainly wrong in including this requirement as part of the element of the offence. I should add that I cannot see that the inclusion of this requirement in any way operated to the prejudice of Mr Obeid.

176. [235]

     It follows that this ground of appeal has not been made out.

177. [236]

     In Mr Obeid’s written submissions, the complaint on this ground was said to relate to three issues. First, a failure to adduce evidence that there was no protocol that Members of Parliament not approach public servants directly. Second, a failure to adduce evidence that Mr Obeid was concerned with the position of Circular Quay tenants prior to the Obeid family acquiring an interest in the restaurants and that Circular Quay tenants had been treated badly by the Maritime Authority and the NSW Government to Mr Obeid’s knowledge. Third, a failure to adduce evidence that the relevant parliamentary standards did not require disclosure of any interest when speaking to public servants in the circumstances of the present case.

178. [237]

     In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, Gaudron J stated that the question of whether the conduct of counsel led to a miscarriage of justice was usually answered by determining whether the conduct deprived the accused of a chance of acquittal that was fairly open. Her Honour emphasised that the word “fairly” should not be overlooked, stating that a decision to take or refrain from taking a particular course which is explicable on the basis that it led or could have led to a forensic advantage, may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open. Her Honour noted that the question should be determined objectively, emphasising that the ultimate question was whether there was a miscarriage of justice: at [25]-[32].

179. [238]

     To enable this ground to be determined the Court permitted the tender by Mr Obeid of an affidavit of a Mr Peter Nagle, an affidavit of a Mr George Confos, the Code and the Legislative Council Members’ Guide dated April 2007 (the Guide). In addition, the Crown in response tendered an affidavit of a Ms Jessica Chan.

180. [239]

     On that basis it is convenient to deal with the matters complained of separately, whilst recognising that ultimately the cumulative effect must be considered in determining whether there was a miscarriage of justice: Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [18], [24], [27].

181. [240]

     The evidence concerning the existence of a protocol came from Mr Oxenbould. He gave evidence that after retiring from his position as Deputy Chief of the Navy in 1999, he worked for two years at the NSW Premier’s Department, two years as Chief Executive of Newcastle Ports and was Chief Executive Officer of the Maritime Authority from 2004 to 2008, although for part of that period, February 2006 to September 2006, he was seconded as Chief Executive Officer of Sydney Ferries. He gave the following evidence concerning the protocol:

182. [241]

     The evidence was not objected to, nor was there cross-examination on it.

183. [242]

     The trial judge gave the following directions on the protocol:

184. [243]

     The trial judge made the following further directions:

185. [244]

     Mr Nagle, in the affidavit tendered at the hearing of the appeal, stated that he was a Member of the Legislative Assembly from 1988 to 2001. He gave evidence he was a lawyer by profession, he was Chairperson of a number of parliamentary committees, including the committee charged with overseeing ICAC, and that since he retired he attempted to remain cognisant of practices, protocols and conventions of Parliament.

186. [245]

     Mr Nagle gave evidence that in his opinion there was no such protocol of the nature suggested by Mr Oxenbould. He said he gave that evidence on the basis that no one told him of its existence, and that he and other Members of Parliament spoke to public servants directly. He exhibited a memorandum from the Department of Premier and Cabinet entitled “Provision of information to Members of Parliament”. That memorandum which was issued by the Premier in 1992, with a review date of 31 December 2014, provided as follows:

187. [246]

     Senior counsel for Mr Obeid submitted that the evidence of Mr Oxenbould was inadmissible as it was opinion evidence when no expertise or specialised knowledge was established. He also submitted that it was a matter within the exclusive cognisance of Parliament and was irrelevant because it was directed to how departments ought to deal with Members of Parliament, that s 48 of the Evidence Act 1995 (NSW) prevented evidence of the protocol being adduced in that fashion and it was of marginal relevance and ought to have been excluded under s 137 of the Evidence Act. The particular submissions relating to the inadmissibility of the protocol did not take into account the fact that it was tendered on the appeal by Mr Obeid annexed to Mr Nagle’s evidence.

188. [247]

     Senior counsel for Mr Obeid submitted Mr Nagle’s evidence would have undermined the proposition there was a deliberate breach of the protocol which showed the conduct was wilful.

189. [248]

     The Crown submitted that Mr Oxenbould’s evidence was not expert evidence in that he was asked of his own knowledge whether such a protocol existed. It was submitted that Mr Obeid’s submission concerning the importance of the protocol did not reflect the Crown case.

190. [249]

     As I indicated, the Crown tendered an affidavit of Ms Jessica Chan which demonstrated that the protocol annexed to Mr Nagle’s evidence was in possession of Mr Obeid’s legal advisers at the time of trial. It was submitted that, in these circumstances, there was sound forensic reasons not to call Mr Nagle. Further, referring to the evidence of Mr Tripodi that he was not aware that there was a formal policy, the Crown submitted that Mr Nagle’s evidence would only add another person’s belief as to whether or not the protocol existed.

191. [250]

     Mr Oxenbould was not giving opinion evidence. Rather, he was giving evidence of his knowledge of either a practice by which Members of Parliament did not raise matters directly with government departments, and evidence of a formal protocol. Evidence from a senior departmental officer that such a practice existed, in my opinion, would be admissible.

192. [251]

     In answer to the s 48 question, to which I have referred in [246], Mr Oxenbould did seek to give evidence of the content of a document, namely, a memorandum produced by the Department of Premier and Cabinet. It is true that no objection was taken and it was not established that the document was not available such that the evidence could be given by virtue of s 48(4) of the Evidence Act.

193. [252]

     However, in considering whether there was a miscarriage of justice, it is necessary to consider what would have occurred. The evidence of Ms Chan established that the memorandum from the Premier of 1992, which was annexed to Mr Nagle’s affidavit, was in the possession of both parties. It conforms to the description of the memorandum given by Mr Oxenbould and was a document which would have been admissible under s 48(1)(b) of the Evidence Act as a public document being, on its face, part of the records of the Crown and thus, falling within the definition of a public document in the Dictionary to that Act. In these circumstances, the admission of the evidence of Mr Oxenbould did not give rise to a miscarriage of justice.

194. [253]

     The matters to which I have referred above, demonstrate the difficulty involved in asserting a miscarriage of justice from a decision, such as that made in the present case, not to object to the evidence of Mr Oxenbould. As Gleeson CJ pointed out in Nudd v The Queen supra (at [9]), a criminal trial is an adversarial proceeding where parties are bound by the conduct of their legal representatives. Looking at the matter objectively, the present case involved a perfectly sensible decision by counsel for Mr Obeid not to object to a matter which could have been formally proved in any event.

195. [254]

     Further, it cannot be said that the admission of this evidence meant Mr Obeid was deprived of a chance of acquittal fairly open. As I have said more than once, and as the trial judge indicated, the case was not about a failure by Mr Obeid to comply with any protocol about dealing with public servants, it was about misuse of his position as a Member of Parliament for the sole purpose of advancing his financial position or that of his family or associates, rather than acting in the interests of those he was appointed to represent. The existence or non-existence of a protocol in the terms described by Mr Oxenbould is of little significance on this issue.

196. [255]

     So far as Mr Nagle is concerned, his evidence would have shown the existence of a memorandum consistent with the evidence of Mr Oxenbould. Whilst, as senior counsel for Mr Obeid submitted, it may be an interdepartmental memorandum, the statement by the Premier that there was a longstanding tradition of Members dealing with departmental officers by going to the relevant Minister or making contact with the Minister’s staff or writing to the Head of the relevant Department, was contrary to the course taken by Mr Obeid. Otherwise Mr Nagle’s evidence, to the extent it was admissible, only stated that his knowledge was consistent with that of Mr Tripodi.

197. [256]

     In these circumstances, there was no miscarriage of justice arising from the failure to object to the evidence of Mr Oxenbould or to call Mr Nagle.

198. [257]

     Senior counsel for Mr Obeid submitted that the failure to tender this material constituted a miscarriage of justice because that material would have demonstrated the limit of his client’s responsibility. He also submitted that the material went to every issue in the case saying that “[w]hat MP’s obligations were, what the protocols are, what the standards of conduct are, what the responsibilities are, the importance of obligations of disclosure, the question of whether there’s a duping by reason of non-disclosure, the issue of conflict, the issue of pecuniary interest, the issue of disclosure of pecuniary interests, the question of what Mr Obeid’s knowledge was of these standards, the question of whether there was misconduct, the question of whether it was serious, [and] the question of whether there was any reasonable excuse or justification” were all matters to which the Code was relevant.

199. [258]

     Senior counsel for Mr Obeid put forward what he described as a “series of points” relevant to misconduct arising out of this material that could have been put to the jury. First, he submitted that the Code could be treated as an exhaustive and definitive statement of the duties of a Member of Parliament which are “serious”.

200. [259]

     Second, in relation to what senior counsel for Mr Obeid referred to as the Wilkinson duty (referring to Wilkinson v Osbourne supra) he submitted that the fact it was not, in his submission, in the Code, showed that a breach of that duty may not be treated as serious.

201. [260]

     Third, he submitted that the absence of any indication as to how to deal with public servants indicates there was no serious misconduct, or even misconduct.

202. [261]

     Fourth, he submitted that the absence of a reference to any conflict duty in dealing with public servants indicated that what occurred is not a form of serious misconduct, submitting that the only conflict duties in the Code relate to conflicts arising in the course of decision-making.

203. [262]

     He also submitted that there was no reference to any ad hoc duty of disclosure. The only duty to make disclosure was to disclose pecuniary interests which were required to be disclosed on the Register, noting that this did not include the disclosure of interests of parliamentarians’ family or associates.

204. [263]

     He also submitted that the material was relevant in showing the conduct was not wilful for similar reasons, and the compliance with the Code provided what he described as a reasonable excuse and justification for the conduct.

205. [264]

     The Crown emphasised the preamble to the Code contained an acknowledgement by Members of Parliament of their responsibility to maintain the public trust placed in them by performing their duties with honesty and integrity. It was submitted that defence counsel would be justified in not putting the material before the jury as it was something from which a jury could draw an adverse inference against the accused.

206. [265]

     It was submitted in those circumstances that there was no miscarriage of justice.

207. [266]

     The Code, as I have indicated, required disclosure of conflicts of interests between private financial interests and decisions in which members participate in the execution of their office. It also, unsurprisingly, prohibits receipt of a bribe for the promotion of, or voting on, any issue, or for raising a question in Parliament.

208. [267]

     The Guide contains a chapter dealing with disclosure of pecuniary interests. It makes reference to s 14A of the NSW Constitution and the Regulation to which I have referred to in dealing with Ground 1: see [46]-[47], [74]-[75]. The Guide refers to the establishment of a register and provides a detailed disclosure regime. It also refers to Standing Orders providing that a Member must not vote or participate in a committee inquiry in which the Member has a pecuniary interest.

209. [268]

     I have already indicated, in dealing with Ground 1, why the Code and the Regulation do not impact on the duty said to exist and, in dealing with Ground 2, why that material did not require the Court to exercise a self-denying ordinance in dealing with the matter. For the same reasons, the Guide does not assist on this issue.

210. [269]

     As has been seen, both the Code and the Guide, to the extent it is relevant, deal in the main with disclosure of conflicts. The case against Mr Obeid was not that he failed to disclose a conflict in the manner required by that material, but that he acted for the sole purpose of advancing his family’s pecuniary interests. I have already rejected the proposition that the Code and the Regulation define the totality of a Member’s obligations. The same may be said of the Guide. So viewed, they do not support propositions contended for by senior counsel for Mr Obeid.

211. [270]

     In the circumstances, the failure to tender the material did not lead to a miscarriage of justice. Indeed there were sound forensic reasons not to tender it. The preamble to the Code contains an acknowledgement of the responsibility of Members of Parliament to maintain the public trust placed in them. The Guide emphasises the fact that Members are not entitled to vote to advance their own interest. If Mr Obeid was found by a jury to be aware of these matters, it would have provided further material for them to infer his conduct was both wilful and serious.

212. [271]

     It follows that the failure to tender the Code and the Guide did not result in a miscarriage of justice.

213. [272]

     The evidence of Mr Confos was that he operated a pharmacy near Circular Quay, trading under the name of Quay Pharmacy. He leased the premises from the State Rail Authority. In approximately 1997 this lease became a monthly tenancy and continued as such for three and a half years. He had been notified in 1996 that his lease would not be renewed. He said he spoke to other tenants who had leases from either the State Rail Authority or the Maritime Authority’s predecessor, the Waterways Authority.

214. [273]

     One of the people Mr Confos spoke to was Mr Imad, who was at the time the owner of the restaurants ultimately acquired by interests associated with Mr Obeid. Mr Confos stated that in 1996 or 1997 he and Mr Imad formed the Circular Quay Traders Association (the Association).

215. [274]

     Mr Confos said that he and Mr Imad, as representatives of the Association, had a meeting with Mr Obeid in 1997. It is unnecessary to set out the evidence in detail. However, Mr Confos and Mr Imad complained about the insecurity of tenure and Mr Obeid said he would speak to Mr Carl Scully (the then Minister) and put the tenants’ case to the Government. He said thereafter he had a number of further meetings with Mr Obeid where he made similar complaints and Mr Obeid further indicated he would try to assist by lobbying the Government.

216. [275]

     Mr Confos stated that in 2000 the State Government started to grant further five year leases without an option of renewal. He said that members of the Association expressed concern to him that they were required to tender at the expiration of the 5-year term. Mr Confos said he left the Association in 2001 following the grant of a new lease. He said he was available to give evidence at the trial.

217. [276]

     Mr Confos was cross-examined at the hearing. He said he did not know that interests associated with Mr Obeid took an assignment of Mr Imad’s lease and was not aware of any possible interests which Mr Obeid had in the tenancies. That may be because Circular Quay Restaurants only took an assignment of the lease in late 2002.

218. [277]

     To understand the complaint it is necessary to have regard to the directions given by the trial judge:

219. [278]

     Senior counsel for Mr Obeid pointed out there was no suggestion that at the time Mr Obeid was speaking to Mr Confos he had an interest in the restaurants. He noted the affidavit stated that Mr Obeid expressed concern about the public and tourists, as well as expressing the view that the tenants had been treated badly.

220. [279]

     Senior counsel for Mr Obeid submitted the fact that Mr Obeid had been helping the tenants out and had established relationships with those in Government dealing with the matter, meant the jury could find there was no reason for him to stop doing that simply because he had some kind of interest.

221. [280]

     Senior counsel for Mr Obeid said that although Mr Tripodi had stated that Mr Obeid had expressed concern about the tenants, there were three problems with that evidence. First, Mr Tripodi as an Australian Labor Party colleague would not be perceived as independent. Second, the evidence of Mr Tripodi could have been interpreted by the jury as relating only to the tenancies in which Mr Obeid had an interest, Third, unlike the evidence of Mr Confos, Mr Tripodi’s evidence was not confined to any particular date, and particularly was not confined to a date prior to Mr Obeid acquiring an interest in the tenancies. He submitted that the evidence would have changed the whole atmosphere of the case.

222. [281]

     The Crown submitted that the failure to call Mr Confos did not give rise to a miscarriage of justice. It was submitted that there were good forensic reasons not to call him. It was submitted it showed the close relationship between Mr Imad and Mr Obeid. It was submitted that the evidence was just another example where Mr Obeid, in the guise of acting solely as a Member of the Legislative Council, may well have been acting in his own interests as a prospective purchaser and would have led to an even stronger inference he was acting in his own interest when speaking to Mr Dunn, after interests associated with him had acquired the lease.

223. [282]

     I do not believe that the failure to call Mr Confos gave rise to a miscarriage of justice. First, there was evidence from Mr Tripodi to the effect that Mr Obeid had made representations on behalf of Circular Quay tenants. Second, Mr Tripodi’s evidence was the subject of an agreed fact in the following terms:

224. [283]

     Third, contrary to the submissions made on behalf of Mr Obeid, the evidence of Mr Tripodi as with that of Mr Confos, dealt with a time prior to Mr Obeid and his associates taking an interest in the Circular Quay Restaurants. In cross-examination, Mr Tripodi accepted that the discussions happened in 1997 or 1998. Fourth, contrary to the submission of Mr Obeid, it was an agreed fact that Mr Obeid spoke with Mr Tripodi about the Government’s treatment of the Maritime Authority’s tenants, citing by way of example the position of the leaseholders at Circular Quay. It was not limited to the leases that were subsequently acquired by interests associated with Mr Obeid. In these circumstances, the evidence of Mr Confos does not advance the matter beyond the evidence of Mr Tripodi and in particular the agreed fact.

225. [284]

     Further, there are a number of significant differences between the position as deposed by Mr Confos and what occurred in 2007. First, by the time he spoke to Mr Dunn, Mr Obeid, or at least his wife, had a very substantial commitment in respect of the acquisition of the restaurants secured by a mortgage over his wife’s home, something not disclosed to Mr Dunn. It would be open to a jury to infer that Mr Obeid, or at least interests associated with him, would suffer a very significant financial loss if the leases were not renewed. Second, the statement made by the trial judge extracted above at [277] was expressed, and would presumably have been understood by the jury, as a summary of what had been said the by the Crown at the close of his address. The Crown’s address was in terms “directed to the time around August/September 2007”. The submission of the Crown was specifically that there was no evidence “in that period” that anyone who was a tenant on the wharves had made any representations to Mr Obeid about their lease renewal problems. This was a number of years after Mr Confos had ceased to have any involvement in Traders Association. Further, in the conversations referred to by Mr Confos, the only specific person Mr Obeid indicated he would speak to was Mr Carl Scully, the relevant Minister at that time. That can be contrasted with him speaking to Mr Dunn who was neither the relevant Minister, nor the head of the relevant department. In these circumstances, in my view at the very least, the evidence of Mr Confos would not lead a jury to conclude, contrary to what they in fact found, namely that Mr Obeid was solely motivated by his personal interest in making the representations complained of.

226. [285]

     It follows there was no miscarriage of justice arising from the failure to call Mr Confos.

Conclusion on Ground 7

1. [286]

   It is necessary to consider the various complaints made in respect of this ground, both cumulatively as well as individually. They are discrete matters. Having considered them, none of them had any merit whether taken individually or cumulatively. In these circumstances, it could not be said that Mr Obeid was deprived of a trial according to law, or that there was a miscarriage of justice in that he was deprived of a chance of acquittal fairly open.

2. [287]

   It follows that this ground of appeal has not been made out.

Conclusion on the conviction appeal

1. [288]

   Ground 5 of the grounds of appeal and Ground 7, to the extent it raised factual matters, require the grant of leave to appeal. In my opinion, leave should be granted.

2. [289]

   Since writing the above, I have had the advantage of reading, in draft, the judgment of R A Hulme J on the sentence appeal. I agree with the orders proposed by his Honour and with his Honour’s reasons.

3. [290]

   In the circumstances I would make the following orders:

   1. (1)

      Grant the applicant leave to appeal on Grounds 5 and 7 of the amended grounds of appeal filed on 8 March 2017.

   2. (2)

      Pursuant to r 4 of the Criminal Appeal Rules, grant the applicant leave to raise Grounds 1, 2, 3, 4 and 6 of the amended grounds of appeal filed on 8 March 2017.

   3. (3)

      Appeal against conviction dismissed.

   4. (4)

      Grant leave to appeal against sentence.

   5. (5)

      Appeal against sentence dismissed.

4. [291]

   LEEMING JA: I have had the very considerable advantage of reading the reasons for judgment of Bathurst CJ and R A Hulme J in draft. I agree with their reasons and the orders proposed. My additional reasons below are by way of elaboration rather than qualification.

Grounds 2 and 3: exclusive cognisance of the parliamentary chamber?

1. [292]

   The largest part of the submissions advanced by Mr Obeid was directed to the proposition that the Legislative Council had “exclusive cognisance to adjudicate whether Mr Obeid was guilty of misconduct in office”. It was on this ground that the New South Wales Attorney General sought either to intervene or to be heard, and was granted leave to be heard as amicus curiae.

2. [293]

   The difficulties standing in the way of acceptance of this ground are numerous. They include the following.

3. [294]

   First, assuming the NSW Legislative Council found Mr Obeid guilty of the common law offence of misconduct in office, did it have power to punish him? That in turn has two aspects:

   1. (1)

      Does the Legislative Council have power to punish?

   2. (2)

      If so, does the Legislative Council have power to punish a former member for an offence committed outside the chamber while he or she was a member?

4. [295]

   A long line of appellate authority, commonly associated with Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225, holds that (a) a chamber such as the Legislative Council, upon which have not been conferred either the powers of the House of Commons in general terms, or specifically the power to punish, has powers limited by a test of reasonable necessity for the existence or proper functioning of the chamber, and (b) those powers do not extend to punishment. Formerly, this limitation applied to many colonial legislative bodies in the British Empire, and was the subject of a deal of appellate authority. Indeed, more appeals were brought from New South Wales in connection with that limitation than from any other place in the Empire. Today, the chambers of the New South Wales Parliament are distinguished as being the only Australian parliamentary chambers whose powers have not been augmented by statute.

5. [296]

   Without being exhaustive, in Barton v Taylor (1886) 11 App Cas 197 at 203, an appeal from the Supreme Court of New South Wales, the Earl of Selborne in terms adopted the distinction drawn from the earlier Privy Council decision in Doyle v Falconer (1866) LR 1 PC 328 framed as follows:

6. [297]

   I pass over the current precedential authority of a decision of the Privy Council on appeal from this Court (as to which see Perilya Broken Hill Ltd v Valuer-General [2015] NSWCA 400 at [3] and [70]-[76]). There is also the decision of the High Court in Willis v Perry (1912) 13 CLR 592; [1912] HCA 12, once again a decision on the powers of a chamber of the New South Wales Parliament, whose headnote accurately encapsulated the holding:

7. [298]

   The exercise of a power to punish a former member for offending conduct committed outside the Chamber is even further outside the limits of an implied power delineated by reasonable necessity, which was held unavailable to compel a current member who had been disorderly within the Chamber.

8. [299]

   No basis was put forward for distinguishing the implied powers of the Legislative Assembly from those of the Legislative Council. Even if there were some basis to distinguish the implied powers of each chamber, at the level of authority there remains this Court’s decision in Armstrong v Budd (1969) 71 SR (NSW) 386, on the powers of the Legislative Council, which upholds the long-standing distinction between powers for self-protection and powers to punish. Wallace P concluded his judgment at 403:

9. [300]

   Sugerman JA observed at 406 that:

10. [301]

    Further, in Egan v Chadwick (1999) 46 NSWLR 563; [1999] NSWCA 176, another appeal concerning the powers of the Legislative Council, Spigelman CJ stated at [2] that:

11. [302]

    How then is it reasonably necessary for a chamber to have power to punish a former member who has committed a common law crime?

12. [303]

    True it is that in Egan v Willis (1998) 195 CLR 424; [1998] HCA 71 at [54]-[55], Gaudron, Gummow and Hayne JJ found it unnecessary to determine whether the powers of the Legislative Council were as had been stated in Barton v Taylor. But it does not follow from the fact that a point has been left undecided by an ultimate appellate court that an intermediate appellate court is free from precedential constraints. It would be in my view a large thing for this Court to hold that a chamber has implied power to punish a member for a contravention of a common law offence. It is an even larger thing to hold that any such implied power extends to former members. Even if it were open as a matter of precedent, it would certainly not be possible to do so without the most careful examination of the authorities some of which have been summarised above.

13. [304]

    Secondly, there is the fact that the situation in New South Wales is different from that of the Commonwealth and every other State. Section 49 of the Commonwealth Constitution gave to the chambers of the Commonwealth Parliament the powers of the House of Commons; hence the imprisonment of Raymond Fitzpatrick and Frank Browne: see The Queen v Richards; ex parte Fitzpatrick and Browne (1955) 92 CLR 157; [1955] HCA 36 and see now ss 5 and 7 of the Parliamentary Privileges Act 1987 (Cth). The powers of the chambers of the Parliaments of every other State have been supplemented by legislation: see Constitution Act 1934 (SA), s 38; Constitution of Queensland 2001 (Qld), s 9; Parliamentary Privilege Act 1858 (Tas), s 3; Constitution Act 1975 (Vic), s 19 and Parliamentary Privileges Act 1891 (WA), s 1, as noted in Egan v Willis at [29] and considered more comprehensively in E Campbell, Parliamentary Privilege (2003, Federation Press), Chapter 12. In contrast, the unsuccessful attempts to enact privileges legislation in New South Wales – including in 1856, 1878, 1879, 1901, 1912 and 1985 – are summarised in L Lovelock and J Evans, New South Wales Legislative Council Practice (2008, Federation Press), pp 53-56.

14. [305]

    The fact that the Parliaments of the Commonwealth and every other State have enacted legislation conferring power upon the legislative chambers to punish, and the New South Wales Legislature has not, seems to me to be a further very powerful factor telling against the same result being achieved in New South Wales by judicial innovation, contrary to some two centuries of appellate authority.

15. [306]

    Mr Obeid’s response was to sidestep these difficulties by relying upon part of the submissions advanced on behalf of the Attorney‑General for the Commonwealth in Egan v Willis (1998) 195 CLR 424; [1998] HCA 71 as reproduced at pp 432 and 433 of the Commonwealth Law Reports. The result of that approach, and that taken by the NSW Attorney General in response (see below), was that the enormity of the difficulties summarised above was not fully exposed in the parties’ submissions. But reliance on part of a submission made in Egan v Willis is to no avail.

16. [307]

    The Commonwealth Attorney-General’s submissions in Egan v Willis, made on the fourth day of the hearing of that appeal, and after an adjournment so as to permit the distribution of notices under s 78B of the Judiciary Act 1903 (Cth), were very substantially framed in terms of a constitutional implication. The submission proceeded thus:

17. [308]

    That aspect of the Commonwealth Attorney-General’s submission was expressly and entirely eschewed by senior counsel for Mr Obeid, although it resonated with what Wallace P had said in Armstrong v Budd at 401 that the earlier dicta should “be construed and applied in the light of modern conditions and current constitutional situations”. Mr Obeid sought to rely only upon the following three sentences:

18. [309]

    It is of course open to adopt part but not all of an earlier submission. Nonetheless it is an unusual course to take. It may be, because of the opposition of Mr Obeid in this Court to the intervention of the Solicitor‑General, as well as from the earlier interlocutory history of this matter, in which the same stance was maintained by Mr Obeid (see (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [15]-[16]) that the limited submission was advanced with an eye to denying a right of intervention by the NSW Attorney General (or any other Attorney General). Be that as it may, the effect was to rely upon the minor premises of a submission, but expressly to eschew the major premises.

19. [310]

    Taken on its terms, Mr Obeid’s submission is readily rejected. Section 1 of the Australia Acts concerns the application of Acts of the Parliament at Westminster. Section 3 of the Australia Acts concerns the operation of the Colonial Laws Validity Act 1865 (Imp) and the doctrine of repugnancy. That section concerns the legislative powers of State Parliaments, and says nothing about the necessarily non-legislative implied powers of a chamber within a State Parliament. There is no doubt that power may be conferred upon the chambers of a State Parliament by State legislation (as has occurred in all other States). That says nothing in relation to the NSW Legislative Council, which has not benefitted from any legislated conferral of power.

20. [311]

    (If anything in the Australia Acts were of assistance, it would seem to be s 2 which confirms that the State Parliaments have plenary legislative power, including all those enjoyed by the Parliament of the United Kingdom, and indeed in oral submissions on 1 September 1998, it was s 2 to which the Commonwealth Solicitor-General first turned: Egan v Willis [1998] HCATrans 311. But Mr Obeid did not rely on s 2. In any event, s 2 is also confined to legislative powers, and it is pellucidly clear that the Colonial and State Legislatures had legislative power to confer coercive and penal powers upon their constituent chambers prior to 1986.)

21. [312]

    Of course the Legislative Council is now a chamber of a Parliament of a State which is a polity within a sovereign nation, rather than a chamber of a Parliament of a subordinate colony. And the consequences of the constitutional change effected by federation and the (subsequent) establishment of independence as a sovereign nation may have important consequences for the ongoing status of limitations originating from the colonial period. For example, the distinctions drawn between legislative chambers in settled, as opposed to conquered, colonies (see Kielley v Carson at 79 (Moo PC); 231 (ER)), and between legislatures established pursuant to legislation as opposed to letters patent (see Fenton v Hampton (1858) 11 Moo PC 347 at 397; 14 ER 727 at 745) now seem quaintly antiquated. That was the nature of the Commonwealth Attorney‑General’s submission in Egan v Willis. It finds reflection in the response recorded during argument at 427:

22. [313]

    But I find it impossible to reach the conclusion that for wholly non-constitutional reasons there should be some implication by which the powers of the chamber have become assimilated to the powers of the House of Commons. I can see no non‑constitutional reason for rejecting the line of authority stemming from Kielley v Carson (many cases of which were appeals from New South Wales itself) continuing to apply to the Legislative Council, where powers remain unaugmented by statute. And the fact that the Commonwealth Solicitor-General once made the same submission, but primarily based on constitutional reasons, rather indicates the unattractiveness of the limited submission made to this Court.

23. [314]

    It may have suited the forensic goals of those participating in this appeal to proceed on the assumption, highly favourable to Mr Obeid, that the Legislative Council had powers of adjudication and punishment of criminal guilt. However, it is to be recalled that the gravamen of Mr Obeid’s submission was that the Legislative Council was the only body which should determine whether Mr Obeid had broken the criminal law and if so to impose punishment, and for that reason his conviction following a jury’s verdict was to be quashed. The assumption is vital to Mr Obeid’s submission, and what has been said demonstrates the formidable obstacles confronting its acceptance.

24. [315]

    Thirdly, the foregoing focusses on the power to punish, and assumes the Legislative Council also has powers (a) to compel a former member to attend, and (b) to adjudicate whether the former member is innocent or guilty of an offence at common law. It is sufficient to address these issues very concisely. First and foremost, it is far from self-evident that either power is reasonably necessary for the existence or proper functioning of the chamber (anything a former member may have done in the past seems unlikely to impact upon the current existence or proper functioning of the chamber). Secondly, the absence of power to arrest a non-member with a view to adjudicating on a complaint of contempt committed outside the chamber was precisely what was held by the specially augmented Judicial Committee in Kielley v Carson itself. Thirdly, Kirby J noted in Egan v Willis at [136] the possibility of future reconsideration of the proposition that a legislative chamber could exercise judicial power.

25. [316]

    Fourthly, Mr Obeid was confronted by the earlier decision of this Court in Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309. Constructively, in oral address he abandoned the written submissions that it should be overturned, and made a formal submission that it was wrong. But the issue is not merely one of this Court following its earlier decision as a matter of precedent or comity. In substance (I shall return below to the change in terminology on which Mr Obeid relied), the very same submissions sought to be advanced in 2017 by Mr Obeid were advanced by him and rejected by the Court in 2015 in an interlocutory appeal heard and determined in the same proceeding arising out of the same indictment. Further, Mr Obeid applied for special leave, sought a stay (unsuccessfully: Obeid v The Queen [2016] HCA 9; 90 ALJR 447) and his application for special leave was dismissed: [2016] HCASL 86.

26. [317]

    Mr Obeid maintained that the earlier Court’s decision was confined to “jurisdiction”, while his current submission focused on “exclusive cognisance”. He submitted that attention had not been drawn to the Constitution (Disclosures by Members) Regulation 1993 (NSW), or to Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83. The latter proposition is incorrect. This Court in 2015 referred in terms to Rann v Olsen at [128], and it did so because Mr Reynolds SC referred to that decision on 24 November 2015 in the following terms:

27. [318]

    Moreover, although this Court did not refer to the regulations in terms, it did refer to the regulation‑making power in s 14A of the Constitution Act 1902 (NSW), as well as the code of conduct: at [46]-[47].

28. [319]

    Fifthly, the NSW Attorney General invited this Court to take the same approach as it had taken in 2015, bypassing the obstacles summarised above and proceeding on the basis that the Legislative Council enjoyed the same powers as the House of Commons. Let that be assumed, highly favourably to Mr Obeid.

29. [320]

    In order for the chamber to have exclusive cognisance over a former member, there must be some inhibition upon the Court hearing and determining a proceeding in respect of which its jurisdiction has regularly been invoked (in this appeal, Mr Obeid made it plain that he accepted that this Court had jurisdiction). The obvious example is Article 9 of the Bill of Rights, which is a law in force in New South Wales precluding all courts from determining certain issues: Arena v Nader [1997] HCATrans 321; 71 ALJR 1604. But Article 9 does not inhibit a court from determining whether a member of the Legislative Council had engaged in misconduct in office in his dealing with a public servant outside the chamber. Mr Obeid’s difficulty is the absence of any other law which would preclude this Court from determining matters which are not “proceedings in parliament” to which Article 9 applies.

30. [321]

    An attempt was made to distinguish between this Court’s earlier conclusion as to jurisdiction, and what was said to be the Parliament’s “exclusive cognisance” of “intramural matters”. There is undoubtedly such a distinction. In a case, say, where one issue turns upon an attack upon what was said in a chamber, and therefore engages Article 9, a court will not, subject to the possibility that the chamber waives its privilege, make a determination on the issue. This is a familiar aspect of curial deference to parliamentary privilege: Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337. However, the difficulty faced by Mr Obeid is that he submits that the entirety of the charge faced by him falls within the scope of privilege, and therefore ought not be inquired into by a court, while it is with respect very difficult to see how any of the offending conduct relates to proceedings in Parliament.

31. [322]

    As this Court observed at [127]-[132] of its previous decision, there is also a distinction between the denial of jurisdiction and a stay because of parliamentary privilege, on which Mr Obeid sought to rely. But this Court dealt, expressly, with both aspects in its earlier judgment.

32. [323]

    Finally, I would not wish anything in these reasons to support the notion that a party can bring an interlocutory appeal on a question of law pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), have that question determined by this Court, and then in a subsequent appeal against conviction raise the same question of law for redetermination. Relitigation of the same issues in subsequent criminal proceedings was held to be an abuse of process in Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, in which Mason CJ said at 256-7:

33. [324]

    In Rogers it was the Crown which was prevented from relitigating the same point, but, as presently advised, I see no reason why the same principles should not apply to an accused. Further, as presently advised, I see no reason why the same principles do not apply a fortiori where the relitigation occurs in proceedings based on the same indictment. However, I take this point no further because this was not a point developed by the Crown or the NSW Attorney General in this appeal.

Grounds 1, 4 and 6: the approach to analysing the jury directions

1. [325]

   Grounds 1, 4 and 6 of the appeal challenge directions made by the trial judge to the jury. The submissions turned on a close textual reading of the directions. Very commonly it has been said that it is inappropriate to subject the summing up of a judge to a minute or detailed textual criticism. As the Chief Justice has observed, two recent examples are Lin v Tasmania [2015] TASCCA 13; 252 A Crim R 64 at [108] and Hadchiti v R [2016] NSWCCA 63 at [68].

2. [326]

   Those strictures are longstanding. In R v Stoddart (1909) 2 Cr App R 217, Lord Alverstone LCJ for the Court of Criminal Appeal said at 245:

3. [327]

   That passage was endorsed in strong language by Street CJ, with whom Ferguson and James JJ concurred, in R v Sorlie (1925) 25 SR NSW 532 at 539-540. Street CJ said that:

4. [328]

   In Barker v The Queen (1983) 153 CLR 338; [1983] HCA 18 at 368, Brennan and Deane JJ said:

5. [329]

   Most recently, in Graham v The Queen [2016] HCA 27; 90 ALJR 820 at [59], Gordon J said:

6. [330]

   I agree with the reasons and conclusions of the Chief Justice in relation to the grounds based on misdirection. In particular, in relation to ground 1 of the appeal, I cannot accept Mr Obeid’s submissions based on the formulation of duty in paragraph 3(b) of the written directions (which the Chief Justice has reproduced at [28]) without examining its immediate context, namely, what was contained in paragraph 3(a) and what was said about it by the trial judge in his summing up. There was no complaint about paragraph 3(a) or what the trial judge said about it, and for the very good reason that it imposed a very high burden upon the Crown, of which complaint was made – but unsuccessfully – at the time by the Crown.

7. [331]

   The trial judge directed the jury that they needed to be satisfied beyond reasonable doubt that:

8. [332]

   Entirely conventionally, and bearing in mind the circumstantial nature of the Crown case on intention, his Honour further directed that the jury would not draw an inference in those terms from the proven facts unless it was the only rational inference in the circumstances.

9. [333]

   On two occasions the trial judge made it plain that if the jury were not satisfied beyond reasonable doubt that to any extent Mr Obeid genuinely believed that what he was doing was in the public interest or the interest of the electorate or part of it, then they must acquit. Immediately thereafter, and in the absence of jury, the Crown submitted that Mr Obeid could have acted the way he did “for the purpose of obtaining a favourable outcome for CQR [Circular Quay restaurants], and at the same time, he had some genuine belief that that would benefit the public”. He added “to put it broadly [the purposes] are not mutually exclusive”. The trial judge rejected this summarily.

10. [334]

    Accordingly, by the time the jury reached element 3(b) of the common law offence, they must be taken to have been satisfied that the only purpose of Mr Obeid was his personal interest, as opposed to any public interest. Again, there is no doubt that that was the impact of the trial judge’s directions, because immediately after the directions of law of which complaint was extensively made in ground 1, his Honour said:

11. [335]

    It is not necessary to express a view on whether that direction stated the duty too highly. It is easy to contemplate cases where the improper purpose falls short of being the sole purpose. For example, a member may genuinely believe that a new train line or hospital should be built, but even so his or her predominant purpose may be to obtain a benefit because he or she has an interest in land affected by the proposal (and indeed the Standing Orders would apply in such a case of a “direct pecuniary interest” and preclude his or her voting: see Standing Order 113(2)). However, this issue was not the subject of submissions and I do not express a view on it. It suffices to say that when it is seen that the trial judge had confined the case against Mr Obeid (favourably to him) to one which excluded the possibility of mixed motivations, then there is no material error in the formulation of duty complained of in ground 1.

12. [336]

    R A HULME J: In relation to Mr Obeid's appeal against conviction, I agree with the judgment of Bathurst CJ and the orders he proposes.

13. [337]

    Mr Obeid also seeks leave to appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). Viewed as a whole, the grounds are not devoid of merit so it is appropriate that leave be granted.

14. [338]

    Mr Obeid was sentenced by Beech-Jones J on 15 December 2016 to imprisonment for 5 years, with a non-parole period of 3 years: R v Obeid (No 12) [2016] NSWSC 1815. His Honour specified that the sentence was to date from the day of imposition.

15. [339]

    Six grounds of appeal were advanced by way of amended grounds filed on 8 March 2017:

16. [340]

    The Crown submitted that the application for leave to appeal and the appeal against sentence should both be dismissed because no manifest excess or miscarriage of justice is established.

Ground 8: error in finding an offence in Part 4A Crimes Act was the relevant analogue

1. [341]

   As the offence of wilful misconduct in public office is a common law offence there is no specified maximum penalty. In these circumstances, his Honour said (at [63]):

2. [342]

   His Honour noted that both Jaturawong v R [2011] NSWCCA 168 and Blackstock v R [2013] NSWCCA 172 were concerned with sentencing for an offence of misconduct in public office. He observed that Jaturawong v R involved a manager of a Motor Registry who received regular payments to improperly allow applicants to obtain learner permits or driver licences, while Blackstock v R concerned a project officer employed by RailCorp who included on a list of possible contractors for consideration by his superiors a business in which he secretly held an interest and then played a part in allocating work to that business. In both cases, offences of corruptly receiving commissions and other corrupt practices provided for in Pt 4A of the Crimes Act were regarded as reference points.

3. [343]

   The primary judge noted that it was not held in either of those cases that the offences in Pt 4A will always be regarded as the statutory analogue for misconduct in public office. The breadth of circumstances in which the common law offence may be committed means that other statutory analogues may be appropriate in a given case. Nevertheless, his Honour was satisfied that the offences in Pt 4A were the statutory analogue for the purposes of this case. He explained (at [66]):

4. [344]

   His Honour noted (at [68]-[69]) two "differences of significance" between the crime of wilful misconduct in public office and the offence of corruptly receiving a commission or reward in s 249B(1):

5. [345]

   His Honour then said (at [70]) that these differences "bear out the justification for the Court not being limited by the maximum penalty for the relevant statutory analogue, in this case seven years imprisonment".

6. [346]

   Mr Obeid submitted that the primary judge erred by finding that s 249B Crimes Act was the appropriate statutory analogue. Mr Obeid's conduct could not possibly have been charged as an offence contrary to s 249B(1) as he did not receive, or solicit, an inducement or reward; nor did he give or offer to give any reward.

7. [347]

   It was also submitted that s 249B was directed to preventing agents from being encouraged to act to the detriment or against the interests of their principals: Mehajer v R [2014] NSWCCA 167 at [60] (Bathurst CJ). In this case it was said that Mr Obeid's actions did not result in any harm to anyone, there was no intention or foresight of such harm, and no-one was encouraged to act to the detriment or against the interests of a principal.

8. [348]

   Mr Obeid submitted that s 307B was a much closer analogue than s 249B. Section 307B(1) provides:

9. [349]

   It was submitted that his Honour unnecessarily constrained his assessment of sentence by taking into account an irrelevant consideration; namely, a reference point (the maximum penalty for an offence contrary to s 249B) which was inappropriate. It was akin to a judge taking into account a standard non-parole period in circumstances where it did not apply: R v Ohar (2004) 59 NSWLR 596; [2004] NSWCCA 83 at [85] (James J); BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 388 [36] (Johnson J).

10. [350]

    The Crown submitted this ground should be rejected for a number of reasons. First, it was inconsistent with the manner in which Mr Obeid had dealt with the issue in the court below, where he had sought to distinguish Blackstock v R "apart from its reference to an analogous statutory offence" as factually different.

11. [351]

    The Crown submitted that having regard to statutory analogues when sentencing for common law offences where there is no maximum penalty is a "practice of the court" (Blackstock v R at [8]; Janson v R [2013] NSWCCA 301 at [50]). An analogue does not "fetter discretion" and is only a "reference point": Jaturawong v R at [5]; Blackstock v R at [8] and [11].

12. [352]

    The Crown submitted that there was no error in his Honour having regard to s 249B as the appropriate statutory analogue.

13. [353]

    Mr Obeid advanced a number of new contentions in written submissions in reply to those of the Crown. (These were intended as a substitute for oral submissions in chief at the hearing.)

14. [354]

    It was submitted that the selection of a statutory analogue does not involve "picking an offence which ‘is broadly analogous’ to the offence charged"; rather, selecting "as the reference point a statutory offence which the offender has committed" or one for which the offender "could have been convicted". Accordingly, it was submitted that the judge fell into error by selecting an offence Mr Obeid could not have been convicted of and, "arguably, the jury's verdict meant that the appellant committed an offence contrary to s 307B".

15. [355]

    It was also contended that if s 307B was not an appropriate statutory analogue, the judge ought to have had regard to the maximum penalty of 5 years which exists in relation to the Commonwealth offence of abuse of public office, s 142.2 Criminal Code (Cth).

16. [356]

    In oral submissions, the Crown submitted that the selection of a statutory analogue that the judge described as "broadly analogous" which did not "fetter the discretion" meant that it was of little consequence in the assessment of sentence.

17. [357]

    Further submissions were made by both parties as to the effect and consequences of any error in the primary judge having regard to s 249B as a statutory analogue and as to whether the submissions now made by Mr Obeid were inconsistent with the position he adopted below. For the reasons which follow there is no need to deal with them.

18. [358]

    At the outset it is important to recognise that Beech-Jones J did not regard the offence in s 249B as being on all fours with the common law offence for which he was sentencing Mr Obeid. As emphasised in the extract from his judgment set out earlier, he regarded it as "broadly analogous". Further, he proceeded to identify two significant differences between the two offences. It is therefore not to the point for Mr Obeid to submit that he could not possibly have been charged with an offence contrary to s 249B.

19. [359]

    It is similarly important to note that his Honour was conscious of the fact that the purpose of identifying a statutory analogue was merely to find a "reference point" and that it did not "fetter the discretion". This was consistent with the authorities to which reference was made and is not language indicating that his Honour considered his discretion was "constrained" as Mr Obeid suggests.

20. [360]

    The submission that s 249B was an inappropriate analogue because (a) his actions did not harm anyone and he did not intend or foresee any such harm and (b) no-one was encouraged to act to the detriment or against the interests of a principal, cannot be accepted. The sentencing judge found that harm was caused by Mr Obeid wilfully misconducting himself in his public office as a member of Parliament in order to advance personal interests. He said (at [127]; [137]):

21. [361]

    Mr Obeid characterised an offence against s 249B as involving harm or detriment, or intention or foresight of harm or detriment. It was contended in Mehajer v R that the prosecution was required to prove, inter alia, detriment to the principal, or at least an intention to cause such detriment. The Chief Justice dealt with that contention as follows (at [109]-[113]):

22. [362]

    The practice of identifying, where possible, a statutory analogue when sentencing for a common law offence where the penalty is at large does not, as Mr Obeid submitted, involve identification of a statutory offence that the offender committed, or for which the offender could have been convicted. Such a contention is inconsistent with the submission that the judge should have had regard to the offence in s 142.2 of the Criminal Code; an offence impossible for Mr Obeid to have committed, or to have been convicted of, as he was not a "Commonwealth public official".

23. [363]

    More particularly, no authority was cited which directly supported the proposition. In fact, the authorities provide examples to the contrary where the commission of the common law offence did not involve commission of the statutory offence and the offender could not have been convicted of that offence. The simplest example is the common law misdemeanour of attempting to commit a statutory offence discussed in R v Hokin, Burton and Peisely (1922) 22 SR (NSW) 280. Another example is the common law offence of conspiracy which may be constituted by two or more persons conspiring to commit, but not necessarily committing, a statutory offence. (It would normally be the case that if the statutory offence is committed, it is that offence which should be charged rather than conspiracy, it having been said in The Queen v Hoar (1981) 148 CLR 33 at 38; [1981] HCA 67 that "generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed".)

24. [364]

    It was open to Beech-Jones J to have regard to the offence in s 249B as "broadly" (rather than precisely) analogous to the common law offence of misconduct in public office in the manner in which the offence was committed in this case. Section 249B and the offence for which Mr Obeid was convicted shared the common features of a breach of duty by the inducement of another person to show favour for the advancement of personal pecuniary interests (with “inducement” understood in its broad sense, namely a leading, persuading or influencing of the other person).

25. [365]

    The offence in s 307B was less, not more, analogous. Broadly speaking, that offence involves the mere provision of false or misleading information to a public authority. No breach of duty, inducement to show favour, or advancement of pecuniary interests is involved.

26. [366]

    The submission that the offence in s 142.2 of the Criminal Code (abuse of public office - maximum penalty 5 years) was an alternative offence to which the judge ought to have had regard if this Court were to conclude that s 307B of the Crimes Act was not an appropriate statutory analogue was not developed beyond a reference to Adamson J having had regard to it in R v Macdonald; R v Maitland [2017] NSWSC 638 at [248]. Her Honour simply said that it was the only offence of those identified by the Crown that was "a reference point of any arguable relevance" as it was the only one that applied in New South Wales and it "would appear to correspond to the conduct proscribed by the common law offence" (wilful misconduct in public office).

27. [367]

    It may well be that regard might have been had to the offence in s 142.2 of the Criminal Code but the gravamen of this ground is that Beech-Jones J was in error in having regard to the offence in s 249B of the Crimes Act. No such error has been established.

Ground 9 - error in finding appellant solely motivated to benefit CQR and himself or his family

1. [368]

   At [49]-[50] of the sentence judgment, Beech-Jones J referred to what he regarded as a consequence of the jury's verdict of guilty in relation to Mr Obeid's motivation. His Honour made reference to directions he had given as to one of the essential matters the Crown was required to prove beyond reasonable doubt and concluded (at [50]):

2. [369]

   Mr Obeid submitted that there was no basis for this finding. The written directions did not include that the jury had to be satisfied beyond reasonable doubt that Mr Obeid had acted solely out of self-interest. Reference was made to the following passage in the written directions in relation to one of the essential elements the Crown was required to prove beyond reasonable doubt which, it was submitted, did not require satisfaction that Mr Obeid acted solely to benefit CQR etc:

3. [370]

   The Crown submitted that his Honour's finding was consistent with the jury's verdict. The verdict entailed that the jury had rejected any reasonable possibility that Mr Obeid was partly motivated to speak to Mr Dunn in the interest of the public or the electorate.

4. [371]

   In his written reply submissions, Mr Obeid submitted that at no point did the trial judge direct that the jury had to be satisfied that he was solely, exclusively or only actuated by pecuniary self or familial interest or words to that effect.

5. [372]

   It was also submitted by Mr Obeid that "there were divergent directions throughout as to the subject of the culpable intention" and a number of examples were provided of different expressions used by his Honour. It was submitted that this gave rise to a need for great caution before drawing any conclusion as to what the jury found as to Mr Obeid's purpose.

6. [373]

   It was common ground that the judge was required to sentence Mr Obeid in a manner that was consistent with the jury's verdict: R v Isaacs (1997) 41 NSWLR 374 at 378.

7. [374]

   If it was necessary in order to return a verdict of guilty that the jury be satisfied beyond reasonable doubt that Mr Obeid was solely motivated in the relevant way, then the resolution of that issue adverse to him was binding on the judge for the purpose of sentencing: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [14]; [17].

8. [375]

   As may be seen from the judgment of Bathurst CJ in relation to Ground 1 of the appeal against conviction under the sub-heading “Formulation of the duty” ([82] ff), sole motivation was a necessary matter for which the jury had to be satisfied beyond reasonable doubt. Accordingly, there was no error in this being taken into account on sentence.

9. [376]

   Mr Obeid's point about "divergent directions … as to the subject of culpable intention" has no merit. He highlighted different expressions used by the trial judge at various points in his summing up: for example, sometimes he referred to an intention to benefit CQR and at other times spoke of Mr Obeid's and his family's interests. However all of these expressions had the common denominator, an intention by Mr Obeid to benefit CQR and through it himself or his family. There is no reason why the jury would not have understood them as such.

10. [377]

    This ground fails.

Ground 10 - error in taking into account that the jury had been satisfied that Mr Obeid's conduct merited criminal punishment

1. [378]

   The fourth essential element of the offence which had to be proved beyond reasonable doubt was described in the written directions as follows:

2. [379]

   Beech-Jones J referred to the jury's satisfaction of that matter in his sentence judgment at [53]. This was in the context of a general discussion of what the jury's verdict entailed. He added, "It is a significant matter to consider in sentencing Mr Obeid", with a cross-reference to [69] of the judgment.

3. [380]

   Later (at [69]), in the context of discussing his acceptance of the offences in Pt 4A of the Crimes Act as being "broadly analogous" to Mr Obeid's offending conduct (see Ground 8 above), his Honour explained that the element of meriting criminal punishment was one of the two differences between the common law and statutory offences. (See above at [343]-[344])

4. [381]

   Mr Obeid submitted that there was error in his Honour's reasoning in this regard in a number of respects.

5. [382]

   First, it was not a point of distinction between the common law offence of misconduct in public office and an offence in s 249B of the Crimes Act that the former merits criminal punishment. A statutory offence such as an offence against s 249B merits criminal punishment too.

6. [383]

   Secondly, the finding by the jury that the conduct warranted criminal sanction said nothing about the objective gravity of the offending or the appropriate sanction, a matter solely for the judge.

7. [384]

   Thirdly, it was submitted that the court's power under s 249I to dismiss a charge under Part 4A if the offence "is of a trivial or merely technical nature" creates a similar limitation to the requirement in the offence of misconduct in public office that the misconduct be "serious and merit criminal punishment".

8. [385]

   It was submitted therefore that the primary judge took into account an irrelevant consideration: House v The King (1936) 55 CLR 499; [1936] HCA 40.

9. [386]

   The Crown submitted that at [68]-[70] of the judgment, Beech-Jones J was simply identifying differences between the common law and statutory offences. His conclusion that the maximum penalty for the statutory offence did not provide a limit upon the penalty that could be imposed for the common law offence was plainly correct: Blackstock v R at [8]-[11]. To find otherwise would have been erroneous.

10. [387]

    Accordingly, the Crown submitted, it was not an irrelevant consideration for his Honour to have identified the differences between the offence at hand and a statutory analogue, and then to have made a statement that accorded with authority.

11. [388]

    The Crown's submissions then dealt with each of the three points raised by Mr Obeid in support of his contention of error. For the reasons which follow it is unnecessary to refer to them.

12. [389]

    This ground is concerned with what may be regarded as unnecessary reasoning towards a proposition that is, independent of that reasoning, unassailable. That is to say, even if the points raised by Mr Obeid were made good, the principle to which Beech-Jones J referred (at [70]) was applicable in any event. He had previously said so (at [63]) on the basis of authority and without reference to the circumstances of the case at hand.

13. [390]

    It is uncontroversial and well supported by authority that a court sentencing for a common law offence is not bound to regard the maximum penalty prescribed for an analogous statutory offence as a ceiling for a sentence imposed for a common law offence: see, for example, R v White (1875) 33 SCR 339 at 343 (Hargrave J) and 344 (Faucett J); Blackstock v R at [10]-[11].

14. [391]

    There are two examples of where the statutory offence does, as a matter of practice, provide an upper limit on the sentence to be imposed. First, in R v Hokin, Burton and Peisely there is reference to the maximum penalty for a statutory offence providing a limit for sentencing for a common law offence of attempting the same. (This was given statutory recognition in 1974 by the insertion of s 344A of the Crimes Act by the Crimes and Other Acts (Amendment) Act 1974 (NSW)). Secondly, it has been held that a sentence imposed for a common law conspiracy should not generally exceed that prescribed for the substantive offence: The Queen v Hoar at 40. However, neither of those two situations (or anything similar) applies to the present case.

15. [392]

    The sentencing judge was correct to say, in effect, that he was not bound to impose a sentence that did not exceed the maximum penalty prescribed for the "broadly analogous" offence in s 249B of the Crimes Act. This was correct according to the authority to which his Honour referred, for example, Blackstock v R. It was unnecessary for his Honour to provide a "justification" for the principle but there was no error in his reference to two matters by way of example.

16. [393]

    Accordingly, there was no House v The King error by taking into account an irrelevant consideration. This ground must be rejected.

Ground 12 - error in finding that damage caused to the institutions of government constituted relevant loss or damage for the purposes of s 21A

1. [394]

   Both parties addressed these grounds together and so it is appropriate to do likewise.

2. [395]

   Section 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides:

3. [396]

   Section 21A(2)(g) provides that an aggravating factor to be taken into account is that "the injury, emotional harm, loss or damage caused by the offence was substantial" whereas s 21A(3)(a) provides that a mitigating factor to be taken into account is that "the injury, emotional harm, loss or damage caused by the offence was not substantial". (Emphasis added)

4. [397]

   Mr Obeid submitted in the court below that the mitigating factor in s 21A(3)(a) was one of eight mitigating features that should be taken into account. He made no further written or oral submission in relation to it.

5. [398]

   Beech-Jones J dealt with the submission as follows (at [127]):

6. [399]

   Mr Obeid submitted that he was denied procedural fairness in relation to the applicability of s 21A(3)(a). He claimed that "[a]t no stage during the exchange between the Bench and counsel for the appellant was it suggested that the harm embraced by s 21A(3)(a) … might extend as far as something as nebulous as 'damage … to the institutions of government'".

7. [400]

   Mr Obeid contended that the following discussion between the primary judge and the Crown Prosecutor during the sentence hearing meant that there was no reason for the applicant's counsel to address the issue. It was said that the primary judge "foreshadowed a view that the mitigating factor under s 21A(3)(a) might be applicable".

8. [401]

   It was submitted that, in contrast, the idea that institutions of government had been harmed in a way which ought to be treated as a matter of aggravation was never suggested by the Crown or raised by the primary judge for consideration. On this basis, Mr Obeid was denied procedural fairness in that he was denied the opportunity to make submissions on the issue, or failed to do so by reason of an indication from the sentencing judge that ultimately proved to be incorrect.

9. [402]

   It was further submitted that damage to the institutions of government does not fall within the meaning of "loss or damage". Those words relate to matters which are ascertainable, quantifiable and capable of objective proof and determination, as indicated by the use of the words "substantial" and "not substantial" in ss 21A(2)(g) and 21A(3)(a) respectively.

10. [403]

    Support for this construction was said to be derived from the terms of s 21A(3)(i) which provides for remorse as a mitigating factor "but only if (i) … , and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)".

11. [404]

    The Crown submitted that the passage from the sentence judgment at [127] involved his Honour dealing with the submission that the mitigating factor in s 21A(3)(a) should be found. It should be characterised as a determination that the matter should be accorded little or no weight.

12. [405]

    The Crown submitted that Mr Obeid's submissions conflated aggravating and mitigating factors. The primary judge did not treat this as a matter of aggravation. The only aggravating factor raised by the Crown was that the offence was committed for financial gain, s 21A(2)(o). The primary judge rejected that contention because "this has formed part of the assessment of the level of criminality involved in the commission of the offence" and "cannot be considered as a further aggravating factor": Obeid (No 12) at [126].

13. [406]

    Mr Obeid referred to Dang v R [2014] NSWCCA 47 at [45] where Adamson J (Simpson and Davies JJ agreeing) described the concept of denial of procedural fairness in sentencing proceedings as follows:

14. [407]

    The paragraph in the sentence judgment with which these grounds are concerned ([127]) is best understood in light of what Beech-Jones J had said earlier.

15. [408]

    At [73]-[79] his Honour reviewed a number of authorities to which he had been referred concerning sentencing for the offence of wilful misconduct in public office and then stated (at [79]):

16. [409]

    His Honour then referred (at [80]-[81]) to five cases identified by the Crown that involved offences committed by, or concerned, parliamentarians, including Ministers. He identified some common propositions ([83]-[87]):

17. [410]

    His Honour then stated (at [87]): "All of these propositions are apposite to Mr Obeid's case".

18. [411]

    Immediately following this, and before turning to a discussion of Mr Obeid's subjective case, his Honour provided his reasoning concerning the relative seriousness of the offence (at [88]-[89]):

19. [412]

    Mr Obeid had submitted that the mitigating factor in s 21A(3)(a) applied. The Crown accepted in the exchange with the judge extracted above that a paragraph in the written submissions for Mr Obeid on sentence was correct. That paragraph read, "The Crown conceded during the course of the trial that the favourable outcome that was achieved in favour of the tenants was not achieved as a result of Mr Obeid's conduct".

20. [413]

    There was no error in the judge referring (in [127]) to violation of public trust and damage to the institutions of government as a countervailing feature that he had taken into account in his assessment of the seriousness of Mr Obeid's offending. It may well have affected the weight he gave to the mitigating factor Mr Obeid relied upon, but that was entirely a matter for his Honour's discretionary assessment.

21. [414]

    It cannot be said, however, that his Honour took this matter into account as an aggravating factor pursuant to s 21A(2)(g). Mr Obeid did not identify any explicit statement by his Honour that he did so. In fact, his Honour's only reference to s 21A(2) aggravating factors was his rejection, as noted above, of the Crown's submission concerning s 21A(2)(o) (offence committed for financial gain).

22. [415]

    In these circumstances it is unnecessary to deal with the submission (which was not supported by authority) that "loss or damage" in s 21A(2)(g) must be ascertainable, quantifiable and capable of objective proof and determination.

23. [416]

    It is correct, as Mr Obeid asserts, that "at no stage did the Crown suggest, nor did his Honour raise for consideration with either party, the idea that institutions of government had been harmed in a way which ought to be treated as a matter of aggravation". But, as just mentioned, the matter wasn't "treated as a matter of aggravation". Nevertheless, Mr Obeid was on notice that the Crown put in its written submissions (at [37]), under the heading "Objective Criminality" (after referring to one of a number of cases presently unnecessary to mention):

24. [417]

    Damage to the institutions of government was a relevant matter for his Honour to take into account in his assessment of the seriousness of the offence. It is as uncontroversial as taking into account damage to financial markets, investor confidence and the like in offences concerned with insider trading, stock market manipulation and general commercial fraud: see, for example, R v Hannes [2002] NSWSC 1182; R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [412]; Director of Public Prosecutions (Cth) v Couper [2013] VSCA 72; 229 A Crim R 115 at [105]-[109]; Khoo v R [2013] NSWCCA 323; 237 A Crim R 221 at [7]-[10].

25. [418]

    In summary, there was no denial of procedural fairness. His Honour did not reject the submission that the mitigating factor in s 21A(3)(a) applied, although he did mention that there was a countervailing factor. Moreover, he did not take into account the matter he mentioned at the end of [127] of his judgment as an "aggravating factor" pursuant to s 21A(2)(g). It was simply something that bore upon his assessment of the relative seriousness of the offence.

26. [419]

    These two grounds must be rejected.

Ground 13 - the sentence is manifestly excessive

1. [420]

   In light of the various issues raised under this ground it is necessary to review the factors that Beech-Jones J took into account in the assessment of sentence in more detail.

2. [421]

   His Honour's assessment of the objective seriousness of the offence has been set out above (at [411]). To reiterate, he found that "in the range of misconduct that might be engaged in by public officials which can constitute the offence of wilful misconduct in public office, Mr Obeid's conduct was a very serious example of the offence because of the onerous nature of the duty owed by him as a parliamentarian compared to other such officials and the extent of his departure from it".

3. [422]

   The judgment then turned to a discussion of Mr Obeid's subjective case.

4. [423]

   Beech-Jones J found Mr Obeid to be of prior good character but said (at [94]):

5. [424]

   His Honour accepted that incarceration would cause significant distress to Mr Obeid's wife and that this in turn would cause distress to Mr Obeid, however it did not meet the description of "exceptional circumstances". He accepted that Mr Obeid's reaction to the harm that his own offending caused to his family can be considered in the synthesis of various factors affecting the appropriate sentence.

6. [425]

   The judge discussed at some length a submission that Mr Obeid had suffered a form of extra curial punishment as a result of extensive media coverage which, it was submitted, had humiliated him and affected members of his family. His Honour noted that none of the testimonial material or a psychological report described any direct physical or psychological effect on Mr Obeid. He accepted that there had been an effect upon the family and said (at [103]), "it is only in the relatively limited sense that Mr Obeid is affected by their suffering from the consequences of his offending that this can be considered".

7. [426]

   His Honour afforded the potential loss of Mr Obeid's parliamentary pension "some weight, but not much" as the only evidence that it may occur was media reports.

8. [427]

   Next, the primary judge considered Mr Obeid's ill-health, age and life expectancy. He accepted that Mr Obeid would receive a superior level of care in the community but was satisfied that he would receive an adequate level of care if he was incarcerated. He found that Mr Obeid's life expectancy was within the range of 77-80 years. It was accepted that Mr Obeid's ailments may make time in custody more difficult. It was not accepted that the combination of Mr Obeid's age, health and reduced life expectancy was of any real significance to determining whether he should be incarcerated or not. However, those factors were taken into account in the mix of factors relevant to the determination of the appropriate length of sentence, but "not to any significant degree". His Honour noted that they could be relevant to a finding of special circumstances but noted the need to avoid double counting matters already taken into account when determining the head sentence when setting the non-parole period.

9. [428]

   Beech-Jones J found that there was no undue delay. He noted that, according to authority, delay may be relevant in three respects. He found that this was not a case in which the offender had been left in a state of uncertain suspense. Progress in rehabilitation was not relevant as Mr Obeid would be sentenced on the basis that there is no prospect of him re-offending. Finally, his Honour did not accept that Mr Obeid's offence could be characterised as a "stale crime".

10. [429]

    Reference has been made above to his Honour's rejection of the Crown's submission that the offence was aggravated by it being committed for financial gain (s 21A(2)(o)).

11. [430]

    Four of the eight mitigating factors under the Crimes (Sentencing Procedure) Act raised by Mr Obeid were established: no prior convictions (s 21A(3)(e)), good character (s 21A(3)(f)), unlikelihood of reoffending (s 21A(3)(g)) and good prospects of rehabilitation (s 21A(3)(h)).

12. [431]

    The mitigating factor in s 21A(3)(a) (injury, emotional harm, loss or damage not substantial) has been discussed earlier under Grounds 11 and 12. His Honour accepted that there was no loss or damage, in the sense that the representations to Mr Dunn had no effect on the ultimate decision to offer CQR new leases, but there was the countervailing factor of damage to the institutions of government when public trust is violated.

13. [432]

    His Honour accepted that some leniency was warranted because of the manner in which the trial had been conducted by and on behalf of Mr Obeid (s 22A) which resulted in a shortening of the length of the trial and made easier an identification of the real issues that the jury had to determine.

14. [433]

    His Honour rejected submissions that the mitigating factors of remorse (s 21A(3)(i)) and the offence not being part of planned or organised criminal activity (s 21A(3)(b)) were established.

15. [434]

    His Honour commented (at [134]) that:

16. [435]

    With reference to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act, his Honour said, in effect, that protection of the community, personal deterrence and promotion of Mr Obeid's rehabilitation were irrelevant given there was no prospect of him further offending.

17. [436]

    He discussed the impact of corruption by elected representatives; how it consumes democracies and destroys public confidence in democratic institutions and then said (at [138]):

18. [437]

    The judge found that no penalty other than imprisonment was appropriate and that the sentence must be one of full-time imprisonment for such a term that the options of home detention and an intensive correction order were not available. Pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act he found that there were special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole period, those circumstances being Mr Obeid's age and health.

19. [438]

    The overarching submission put by Mr Obeid was that "[t]he objective gravity of the offending conduct was towards the lowest end of the spectrum and a significant number of subjective features warranted mitigation".

20. [439]

    As to the objective seriousness of the offence, the written submissions referred to the following matters:

21. [440]

    In his written reply submissions, Mr Obeid contended that a statutory analogue provides a reference point for determining the maximum penalty appropriate to what might be regarded as a worst possible case of the common law offence. Here, Mr Obeid's conduct fell well short of "worst case" for the following reasons:

22. [441]

    As to Mr Obeid's subjective case, the submissions highlighted the following features:

23. [442]

    Mr Obeid's loss of his parliamentary pension which was mooted in media reports at the time of sentencing had become the reality by the time of the hearing of the appeal with the enactment of the Parliamentary Contributory Superannuation Amendment (Criminal Charges and Convictions) Act 2017 (NSW). However, the amendments have the effect that this could not be taken into account, even if this Court was to find error and reconsider sentencing afresh.

24. [443]

    When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

25. [444]

    There is no ground of appeal asserting error on the part of Beech-Jones J in his assessment of the objective seriousness of the offence. In the main, the argument in this Court proceeded as if it was open to this Court to make a fresh assessment. Such an approach is contrary to authority.

26. [445]

    In Mulato v R [2006] NSWCCA 282, Spigelman CJ stated (at [37]):

27. [446]

    Simpson J (as her Honour then was) added (at [46]):

28. [447]

    In the absence of a ground of appeal asserting an error in the assessment of the objective seriousness of the offence it is usually the case that this Court will assess a ground asserting manifest excess (or inadequacy) on the basis of the finding made by the sentencing judge. However, in deference to the detailed argument presented by Mr Obeid, it is appropriate to say something (albeit briefly) about the various points he sought to make.

29. [448]

    Mr Obeid referred to the primary judge having found "no evidence of any planning". In fact, the judge said (at [128]), "the Crown did not prove that Mr Obeid had been planning to intervene in the lease renewal process for some time". His Honour was dealing with a submission that the mitigating factor in s 21A(3)(b) of the Crimes (Sentencing Procedure) Act (the offence was not part of a planned or organised criminal activity) should be found. His Honour rejected that submission on the basis that, while the above was true, "it was not positively established that his actions were spontaneous". Given the onus was upon Mr Obeid to establish mitigating factors (on the balance of probabilities) this conclusion was well open to his Honour.

30. [449]

    His Honour acknowledged (at [134]) that the offence was constituted by a single telephone call. It remained open, however, for him to regard the nature of the duty owed by Mr Obeid as a parliamentarian and the extent of his departure from that duty as rendering this "a very serious example of [the] offence".

31. [450]

    These matters relate broadly to the same issue and may be dealt with together.

32. [451]

    The submissions for Mr Obeid acknowledged that "the extent to which the public official has deviated from his duty must be a principal consideration". But it was then contended that there was no evidence that his interest was contrary to the public interest; in fact, his interest coincided with the interests of the other Circular Quay tenants who were among his constituents.

33. [452]

    It was submitted that advocating for a meeting between Mr Scanlan and the Maritime Authority was not contrary to the public interest. There was no suggestion that Mr Obeid advocated that Mr Dunn should adopt any particular position, let alone one that was contrary to the public interest; nor did Mr Obeid have any reason to believe that Mr Dunn would do so. Further, his Honour found that as far as any meeting between Mr Scanlan and Mr Dunn was concerned, Mr Obeid "was pushing on an open door". Thus, there was no impact upon the ordinary, bureaucratic processes. For these reasons, it was submitted that there was no diminution in public confidence in the effective operation of the institutions of government.

34. [453]

    The short answer to all of these points is that they were, largely but not entirely, acknowledged and taken into account by the sentencing judge (see, for example, at [55]-[56]). He qualified some of them: for example, he referred to there being no evidence that Mr Obeid was aware of Mr Dunn's attitude to the Circular Quay leases prior to making the telephone call; "it was only sheer chance that, in speaking to Mr Dunn, Mr Obeid was pushing on an open door".

35. [454]

    The fact that his Honour did not regard these matters as calling for an assessment of the objective seriousness of the offence at a lower level was later explained by his Honour's reference to other pertinent matters (see below at [457]). This is a clear example of the evaluative discretionary assessment that befalls a sentencing judge in relation to issues about which reasonable minds may differ. It is one of the very reasons why this Court is slow to intervene and set aside a finding of objective seriousness: Mulato v R at [37].

36. [455]

    The fact that Mr Obeid received no financial benefit (nor did his family) was acknowledged by the judge (at [57]). He immediately proceeded to say, "However, as I have explained, the effect of the jury's verdict is that it found that he was solely motivated to lobby Mr Dunn to benefit either himself or his family".

37. [456]

    Similarly, as discussed in the context of Grounds 11 and 12, his Honour acknowledged (at [127]) that no financial loss was occasioned but he proceeded to say, "However, as I have explained, the crime of wilful misconduct in public office necessarily involves a violation of a public trust. When that involves a parliamentarian, damage is caused to the institutions of government, specifically Parliament."

38. [457]

    Mr Obeid's motivation, the onerous nature of his duty as a parliamentarian, and the extent of his departure from that duty were regarded as more significant in the assessment of the objective seriousness of the offence: Obeid (No 12) at [89]. His Honour's approach in this respect cannot be gainsaid.

39. [458]

    The contention that "there was no inherent evil" was put on two bases; that Mr Obeid gained no benefit for himself or his family and an assertion that there was nothing improper, reprehensible or inappropriate in the representation made to Mr Dunn. The judge accepted the former. The jury thought otherwise as to the latter; the verdict entailed satisfaction beyond reasonable doubt of the fourth element of the offence that "this crime is not established by an error or a mistake but instead the misconduct 'must be worthy of condemnation and punishment'" (Obeid (No 12) at [53]).

40. [459]

    It was submitted that there was no evidence as to what gain there might have been, or even what gain Mr Obeid envisaged. To the extent that the benefit was that a meeting between Mr Dunn and Mr Scanlan occurred, the objective gravity of the offence was "at the very lowest end of the spectrum".

41. [460]

    The Crown case did not involve any specific particularisation of what Mr Obeid might have hoped to achieve. It was merely an unspecified “favourable outcome”. However, it was implicit in the jury's verdict that there was acceptance that he "made the representations for the purpose of promoting his and his family's financial interest" (Summing Up at 65).

42. [461]

    The various arguments presented by Mr Obeid in relation to his sentence may be distilled to the following broad proposition: when regard is had to a correct assessment of the objective seriousness of the offence and to the various mitigating subjective factors, the sentence imposed is manifestly excessive. An indication of this was how close the sentence imposed (5 years) was to the maximum penalty for the statutory analogue offence (7 years). Maximum penalties are reserved for cases in the worst category and the present case was not found to be in or near to that category.

43. [462]

    There are a number of reasons why that overarching proposition should be rejected.

44. [463]

    First, no error has been demonstrated in relation to any of the grounds of appeal concerned with particular matters.

45. [464]

    Secondly, the assessment of Mr Obeid's wilful misconduct in public as a very serious example of the offence "because of the onerous nature of the duty owed by him as a parliamentarian compared to other such [public] officials and the extent of his departure from it" was a finding that was well open to the sentencing judge.

46. [465]

    Thirdly, there is no complaint (and nor could there be) of any failure by the judge to take into account any favourable aspect of Mr Obeid's subjective case. The weight to be afforded to such matters in the assessment of sentence was a matter for his Honour's discretion.

47. [466]

    Fourthly, the maximum penalty prescribed for the selected statutory analogue offence was, in accordance with principle, regarded by the judge as "a reference point" and not as a fetter upon his sentencing discretion. There was no error in his Honour's conclusion that the sentence he imposed was not limited by the maximum penalty for the "broadly analogous" offence in s 249B of the Crimes Act. Accordingly, the proximity of the sentence imposed to the maximum penalty under s 249B does not assist Mr Obeid on this ground.

48. [467]

    Finally, the judge was correct to find that general deterrence, denunciation and recognition of the harm to the community were important considerations in the assessment of sentence. Making the offender accountable for his actions was also a relevant consideration amongst the "Purposes of sentencing" in s 3A of the Crimes (Sentencing Procedure) Act.

49. [468]

    Mr Obeid has failed to establish that the sentence imposed upon him is unreasonable or unjust: House v The King at 505.

Orders

1. [469]

   Leave to appeal should be granted but the appeal against sentence should be dismissed.

2. [470]

   HAMILL J: I agree with Bathurst CJ that the appeal against conviction must be dismissed. I agree with the Chief Justice’s reasons for that decision.

3. [471]

   Subject to one reservation, I also agree with the complementary or elaborative reasons of Leeming JA in respect of grounds 2 and 3. My only reservation arises out of paragraphs [323] and [324] of his Honour’s judgment. I do not think it is necessary to consider the appropriateness (or otherwise) of a legal question being agitated on an appeal against conviction when the same question has been considered in an earlier interlocutory appeal under s 5F Criminal Appeal Act 1912 (NSW). A party who has been unsuccessful in an interlocutory appeal may feel obliged to raise the same matter on their conviction appeal to preserve the point even where, as here, special leave has been refused by the High Court to appeal against the interlocutory judgment. That seems to be the situation in the present case. In respect of Ground 3, the applicant merely made a formal submission that Obeid v R (supra) was wrongly decided. In respect of Ground 2, a somewhat different tack was taken – the question of jurisdiction was not pressed but, rather, it was submitted that Beech-Jones J ought to have declined to exercise the jurisdiction (albeit that he was not asked to do so). Further, in some cases, the significance of the legal question or its impact on the proceedings may only become clear in the course of the trial. I am not convinced that the same considerations lying behind the comments of Mason CJ in Rogers v The Queen (supra) apply in a convicted person’s appeal. In any event, I agree with Leeming JA that, in the absence of submissions by the respondent or the Attorney General (as amicus), the matter need not be considered further.

4. [472]

   I also agree with the general comments of Leeming JA in respect of grounds 1, 4 and 6.

5. [473]

   In relation to the application for leave to appeal against sentence, I agree with the orders proposed by R A Hulme J and with his Honour’s reasons. I would only add that the sentence imposed was a heavy one in all of the circumstances and, in particular, in light of Mr Obeid’s age, ill-health, prior good character and public service along with the public opprobrium that he has suffered. However, as R A Hulme J has explained in his judgment, none of the grounds of appeal can be sustained and the sentence is not affected with patent legal error. As for the latent error asserted by ground 13, I agree with R A Hulme J that the sentence imposed is not “plainly unjust” or “manifestly wrong”: see, for example, Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ).

6. [474]

   N ADAMS J: I have had the considerable advantage of reading the draft judgment of the Chief Justice and respectfully agree with the orders proposed for the reasons provided by his Honour. I have also had the opportunity to read the additional reasons of Leeming JA in draft and I agree with them as well.

7. [475]

   With respect to the application for leave to appeal against sentence I agree that leave to appeal should be granted but that the appeal be dismissed for the reasons provided by R A Hulme J. I am not satisfied that any of the specific errors relied upon in grounds 8 to 12 have been established. As for ground 13, although the sentence imposed is a stern one, I am not satisfied that there has been a failure on the part of the learned trial judge properly to exercise his sentencing discretion such that a “substantial wrong” has occurred: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505.