R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 15)

1. [1]

   HER HONOUR: The Crown proposes to adduce evidence of previous representations [1] made by Justin Kennedy Lewis, John Campo and the accused Edward Obeid and Moses Obeid in the course of being interviewed by a number of journalists on various dates between October 2009 and December 2012 either by telephone, by email or face to face.

2. [2]

   The Crown also proposes to adduce evidence of previous representations made by each of Edward Obeid and Moses Obeid in the course of the execution of a search warrant over premises occupied by Locaway Pty Ltd (Locaway) on 23 November 2011. The execution of the search warrant was video recorded with an accompanying soundtrack. An agreed transcript of the soundtrack was prepared by the parties. [2]

3. [3]

   It is common ground that each of the previous representations the Crown proposes to adduce invokes the rule against hearsay in s 59 of the Evidence Act 1995 (NSW) and the operation of the exceptions in Part 3.4 – “Admissions”. [3]

4. [4]

   In the case of the various previous representations attributed to each of Edward Obeid and Moses Obeid in one or more of the contexts outlined above, the Crown seeks their admission into evidence on the following alternative bases:

5. [5]

   In the case of the various previous representations made by each of Mr Lewis and Mr Campo, the Crown relies upon s 87(1)(c) of the Evidence Act, inviting the Court to find that each of the previous representations of those persons should be taken to be an admission against both Edward Obeid and Moses Obeid on the basis that the representations were made in furtherance of “a common purpose” each of Mr Lewis and Mr Campo had with each of the accused at the time the representations were made.

6. [6]

   Irrespective of whether one or more of the previous representations allegedly made by Edward Obeid and Moses Obeid to one or more of the journalists is found to be capable of constituting a “consciousness of guilt lie” or an admission against interest under s 81 of the Evidence Act, and irrespective of the particular previous representations of Mr Lewis and Mr Campo the Crown seeks to attribute to the accused as an admission by operation of s 87(1)(c), the Crown submitted that the fact (or facts) each of the accused (and Mr Lewis and Mr Campo) intended to assert in their various out-of-court statements is probative of the guilt of each of the accused Edward Obeid and Moses Obeid by proving, or tending to prove, in combination with other evidence in the Crown case, the existence of the conspiracy charged and/or the participation of Edward Obeid and Moses Obeid in that conspiracy, being the primary or essential facts in issue in the trial.

7. [7]

   As comprehended by the indictment upon which the accused were arraigned and as particularised in the Revised Statement of Particulars served on 20 October 2020 [7] , the conspiracy that is alleged and in which it is alleged each of the accused participated is an agreement that Mr Macdonald would wilfully misconduct himself in breach of his duties and obligations as a Minister of the Crown in relation to the granting of a coal exploration licence at Mount Penny in New South Wales so as to benefit Edward Obeid and/or Moses Obeid and/or their family members and/or associates and in such a manner that criminal punishment is warranted.

8. [8]

   Edward Obeid and Moses Obeid object to this body of evidence as failing to meet the test of relevance in s 55 of the Evidence Act or, if relevant, as inadmissible hearsay not governed by exceptions in either s 81 or s 87(1)(c) of the Evidence Act. They further submit that, if admissible, the evidence is otherwise susceptible to exclusion under s 90 of the Evidence Act because the circumstances in which the admissions were made would render it unfair that they are admitted against the accused, or that the evidence should be excluded pursuant to the general exclusionary discretions in ss 135 and 137 of the Evidence Act.

9. [9]

   In addition, each of Edward Obeid and Moses Obeid contend that the common law preconditions to the admissibility of any of their out-of-court statements as capable of constituting “consciousness of guilt lies” is not met.

10. [10]

    During the course of extensive argument on the admissibility of this body of evidence, I rejected the tender of the email correspondence between Mr Lewis and Mr Campo and a journalist as not governed by the exception to the hearsay rule in s 87(1)(c). I indicated at that time that I would publish reasons for that ruling when publishing a judgment on the admissibility of the out-of-court statements of Edward Obeid and Moses Obeid. That ruling follows later in this judgment. [8]

11. [11]

    On 13 November 2020, I published a schedule of rulings on the admissibility of the various previous representations of either or both of the accused adopting, for convenience, the format of Attachment 1 and Attachment 2 to the Crown’s submissions [9] in which each of the various admissions are identified by a line entry, in turn referable to the source of the admission, namely either the handwritten notes of the journalist who interviewed Edward Obeid and Moses Obeid and/or the newspaper articles generated from those interviews, a transcript of the interview where the interview was tape-recorded and a transcript of what was said by the accused in the process of the execution of the search warrant.

12. [12]

    What follows are my reasons for those rulings.

The evidence in summary

1. [13]

   On various dates between October 2009 and December 2012, each of the accused Edward Obeid and Moses Obeid participated in an interview or interviews with a number of journalists associated with various print and electronic media interests either by telephone or face-to-face.

2. [14]

   Ms Tracy Ong was a journalist employed by the Australian Financial Review. She interviewed Edward Obeid on 27 October 2009. Ms Anne Davies, a journalist employed by the Sydney Morning Herald, interviewed Edward Obeid and Moses Obeid on separate occasions on 14 May and 20 May 2010. Each of those interviews was conducted by telephone.

3. [15]

   Mr Shanahan and Ms Jiminez, journalists employed by the Australian, tape-recorded a lengthy interview on 18 December 2012 in which both Edward Obeid and Moses Obeid participated. Shorter second and third interviews were tape-recorded on 20 and 21 December 2012. Those interviews involved Moses Obeid only.

4. [16]

   Each of the journalists published newspaper articles following the interviews.

5. [17]

   Ms Ong published an article on 28 October 2009 titled “Labor powerbroker hits a rich seam”; Ms Davies published an article on 20 May 2010 titled “Coal down below: how rich is his valley”; and on 29 December 2012, Mr Shanahan and Ms Jiminez published an article titled “We got no tip-offs, Obeids insist” and a second article titled “We didn’t know about licences, the Obeids claim”. Only the Ong and Davies articles were tendered on the application. Only the tender of the Ong and Davies articles is pressed as part of the Crown case at trial.

Admission of the evidence of the journalists – the Crown’s submissions

1. [18]

   Addressing, firstly, the issue of the previous representations made by Mr Lewis and Mr Campo to Ms Davies, on 14 May 2010, Mr Lewis and Mr Campo each voluntarily participated in an interview, by email, with Ms Davies also as part of her research for the article she was writing and which was ultimately published. The Crown seeks to tender the emails in the trial. Neither Mr Lewis nor Mr Campo have been called, or are to be called, in the Crown case. Both men have, however, been referred to by name in the evidence adduced in the trial in connection with the purchase of the rural properties Donola and Coggan Creek, both properties being adjacent to or geographically proximate to Cherrydale Park, a property purchased by Locaway in November 2007, Locaway being a company associated with members of the Obeid family [10] . All three rural properties are within what became the Mount Penny Coal Release Area, one of the 11 areas released as part of the Department of Primary Industries’ expression of interest process in September 2008.

2. [19]

   The Crown seeks to tender against Edward Obeid and Moses Obeid what each of Mr Lewis and Mr Campo said in their emails to Ms Davies, again on alternate bases:

3. [20]

   Insofar as concerns the tender of the email correspondence between Ms Davies with Mr Lewis and Mr Campo, I am not satisfied that what was said by either or both of those two persons, in response to questions asked of them by Ms Davies in the email correspondence of 14 May 2010, satisfies the requirements in s 87(1)(c) of the Evidence Act such as to be capable of being admitted as an admission against either of the accused as parties to the conspiracy charged under the indictment in this trial.

4. [21]

   In summary, and in substantial reliance upon the detailed analysis of the operation of s 87(1)(c) of the Evidence Act by Payne JA in Higgins v R [2020] NSWCCA 149, I am not of the view that it is reasonably open to the Court to be satisfied that the representations that were made by either or both of Mr Lewis or Mr Campo to Ms Davies were made by either of them in furtherance of “a common purpose” that either of them had with either or both of Edward Obeid and Moses Obeid. I am of the view that the section is intended to operate consistently with the common law relating to representations made by co-conspirators [11] obliging the Crown to establish that the purpose they shared must be the subject of the conspiracy, which, in the context of this case, can only sensibly be understood as the agreement (in which it is alleged each of the accused participated) that is the subject of the conspiracy that is alleged and particularised.

5. [22]

   While the Court acknowledges the Crown’s submission that it is no part of the Crown case that either Mr Lewis or Mr Campo were parties to the agreement the subject of the conspiracy charged, to seek to superimpose on that agreement the framework of an agreement common to each of Mr Lewis and/or Mr Campo and with each or either of Edward Obeid or Moses Obeid that there be a “realisation of the whole deal in relation to the three properties” (the proposition advanced by the Crown in submissions), in circumstances where the Crown does not propose to call either of Mr Lewis or Mr Campo in the trial, is, in my view, to construct an artifice to facilitate the admission of the evidence under s 87(1)(c) of the Evidence Act. The Crown does so with the deployment of the same artifice that the Crown uses to seek to satisfy me of the further precondition to the admissibility of the evidence under s 87(1)(c), namely that what was said by each of Mr Lewis and Mr Campo was “in furtherance of that common purpose”.

6. [23]

   The Crown also says that the same email correspondence provides for the admission into evidence of what was said in it by each of Mr Lewis and Mr Campo on the basis that the email correspondence is a “business record” (of Ms Davies), thereby justifying the admission of the hearsay assertions of each of Mr Lewis and Mr Campo recorded in that correspondence. In relying upon the business records exception to the hearsay rule, the Crown has failed to confront the underlying question of how the hearsay assertions of a person who is not a party to the proceedings in this case become admissible as evidence against the accused. Irrespective of whether the Crown has satisfied the statutory preconditions in s 69 of the Evidence Act for the admission of the previous representations in the form in which they appear in email correspondence as an exception to the hearsay rule, the admission of the representations still needs to satisfy the requirements for admission as defined in the Evidence Act under s 87(1)(c). That is to say, in the context of this case, the Crown does not overcome the operation of s 87(1)(c) of the Evidence Act by relying upon the document containing the representations sought to be proved as an admission against each of Edward Obeid and Moses Obeid as a business record.

7. [24]

   Turning then to what the Crown seeks to tender in respect of what was said by Edward Obeid and Moses Obeid in the interviews in which they participated, or more particularly, particular passages or excerpts from those interviews identified in Attachment 1 to submissions filed by the Crown in support of the tender as an exception to the rule against hearsay in s 59 of the Evidence Act, the Crown proposes that tender again on alternative bases:

8. [25]

   The Crown also seeks to tender Ms Ong’s article in the case against Mr Macdonald but for a non-hearsay purpose, namely to prove, as a matter of inference, that the fact of the publication of the article and its date prompted Mr Macdonald to make various false claims to Mr Mullard and Mr Gibson which the Crown contends were lies told by him with a consciousness of guilt. [12] Mr Macdonald did not submit that Ms Ong’s article is incapable of constituting evidence supporting the inference for which the Crown contends. There being no submission from Mr Macdonald in opposition to the tender of Ms Ong’s article for that non-hearsay purpose, I propose to admit it on that basis.

9. [26]

   The Crown also seeks to tender Ms Davies’ article for a non-hearsay purpose against all three of the accused. The Crown seeks to rely on the date and the fact of publication, inviting the Court to draw the inference that the article led Moses Obeid to negotiate with Cascade Coal, resulting ultimately in the execution of the Transfer Deed of 20 October 2010. [13] Counsel for the accused did not specifically address me on the tender of the article for the non-hearsay purpose for which the Crown contends. During oral submissions, the Crown indicated that it would seek to adduce evidence from Ms Davies as to the fact and date of the publication of the article. At that time I invited each of the accused to make an admission as to those facts. This has not occurred as yet. Even if the article is ultimately tendered for that purpose, I would not be satisfied that the publication of Ms Davies’ article, including the timing of that publication, is capable of giving rise to the inference for which the Crown contends. There is no evidence before me which could establish that it was the article which caused Moses Obeid to pursue a deal with Cascade Coal. In the absence of any facts to support the inference for which the Crown contends, it cannot be drawn as a matter of law. I do not propose to admit the article on that basis.

10. [27]

    As concerns the representations made by each of the accused Edward Obeid and Moses Obeid in the lengthy tape-recorded interview with Mr Shanahan and Ms Jiminez on 18 December 2012 relied upon by the Crown only as admissions against interest of one or other of Edward Obeid or Moses Obeid under s 81 of the Evidence Act (or a representation which the Court is not satisfied is capable of constituting a “consciousness of guilt lie” but which is capable of constituting a s 81 admission), the Crown relied upon a further basis for the reception of those admissions into evidence against both of the accused Edward Obeid and Moses Obeid. The Crown submitted that the joint convening of the interview, the physical presence of both accused throughout the interview and the structure of the narrative that was being volunteered by each of the accused as an explanation for the involvement of their family with mining interests in the Bylong Valley (on occasions by an explicit or express adoption of what the other was saying and on other occasions by an implicit confirmation or adoption of that subject matter) should be treated by the Court as capable of constituting a series of “joint admissions against interest” and admissible against both accused on that basis.

11. [28]

    Previous representations extracted from the shorter interviews on 20 and 21 December 2012 in which only Moses Obeid participated were tendered only against him again either as a “consciousness of guilt lie” or an admission against interest under s 81 of the Evidence Act.

Objection to the evidence of the journalists – the accused’s submissions

1. [29]

   Counsel for each of Edward Obeid and Moses Obeid objected to the tender of the evidence from all three journalists whose statements were tendered on the application (Ms Ong, Ms Davies and Mr Shanahan) as incapable, as a matter of law, of satisfying the preconditions to admissibility under the various sections of the Evidence Act relied upon by the Crown and incapable, as a matter of law, of constituting a “consciousness of guilt lie” and therefore inadmissible on that basis.

2. [30]

   Mr Kalyk, junior counsel for Moses Obeid, crafted his oral submissions referable to the written submissions to which both he and Mr Neil QC were signatories. [14] He submitted that the Crown had failed to identify, with precision, the use to which the alleged admissions by his client under s 81 of the Evidence Act are to be put in proof of the Crown case. He submitted it is not enough for the Crown to simply assert that previous representations, otherwise prima facie inadmissible as hearsay, are admissible under s 81 because it is “adverse to the interests of the accused [in the trial]” [15] without an explanation as to why and how that might be the case.

3. [31]

   Insofar as concerns the previous representations said by the Crown to be capable of constituting a “consciousness of guilt lie” (or lies) Moses Obeid told to journalists, Mr Kalyk submitted that the Crown had failed to address the conditions precedent to the Court admitting an alleged lie as capable of constituting a lie told with a consciousness of guilt in that the Crown, having failed to identify the basis upon which a particular representation is capable of being shown to be demonstrably and objectively false, or how an alleged lie, told many years after the alleged conspiracy had been executed [16] and many years before the conspiracy was charged as a criminal offence [17] could have been told by his client, conscious of his guilt of that offence, as distinct from the lie being told because of an apprehension by him of generalised wrongdoing either by him or by a member of his family.

4. [32]

   Mr Kalyk submitted that in many instances the Crown has adopted an approach which involves impermissible circular reasoning by advancing the argument that the alleged lie is shown to be a lie deliberately told and motivated by a consciousness of guilt by seeking to prove the existence of the conspiracy and the accused’s participation in it.

5. [33]

   Mr Kalyk also submitted that the Crown had failed to grapple with what he submitted are the “numerous alternative and innocent” [18] explanations for the statements Moses Obeid made to journalists which the Crown could never disprove, rendering what is said by the Crown to be an implied admission of guilt explicable, on its face, for a range of innocent reasons and, for that reason, depriving what was said by Moses Obeid of the capacity to be treated by the Court as a “consciousness of guilt lie” as a matter of law.

6. [34]

   Insofar as concerns the Crown’s reliance on s 81 to support the tender of the out-of-court statements to journalists, in particular, what are said to be either admissions made to the print journalists, Ms Ong and Ms Davies, where Ms Ong made no contemporaneous notes and where Ms Davies’ notes are in a shorthand form which are, to a large extent, either ambiguous or indecipherable, Ms Francis submitted that the Crown had not satisfied the precondition to the admissibility of s 81 “admissions” in s 88 of the Evidence Act and that the admissions relied upon by the Crown as sourcing from the journalists’ shorthand notes or articles should be rejected on that basis.

7. [35]

   Ms Francis also submitted that, in any event, the tender by the Crown of the newspaper articles cannot be used to prove Edward Obeid made the representations said to constitute an admission against interest by reason of Pt 2, cl 6 of the Dictionary to the Evidence Act which is titled “Representations in documents”. I digress to deal with that submission.

8. [36]

   Clause 6 of Part 2 provides as follows:

9. [37]

   Ms Francis submitted that since neither (a) nor (b) is satisfied, the Crown cannot use the newspaper articles to prove that representations attributed to Edward Obeid were “made” by him. I do not read cl 6 of Pt 2 of the Dictionary as a set of preconditions to the tender of a document alleged to have contained a previous representation as a means of proving the previous representation. In my view, the clause in the Dictionary operates to allow for proof of a previous representation in a document to be taken to have been made by a person where either (a) or (b) is satisfied. Plainly, that is not this case.

10. [38]

    Ms Francis further submitted that before a representation by a party is capable of being received into evidence as an admission under s 81, it is essential that the Court is satisfied not only as to what it is that is being admitted but also, in the present context, the circumstances in which the admissions are said to have been made, relevantly, Edward Obeid’s source of information or belief of the facts that he appears to confirm or acknowledge in the representations of fact which are relied upon by the Crown as admissions against interest. A number of authorities were relied upon in support of those submissions to which I will later refer. [19]

11. [39]

    Finally, Ms Francis submitted that s 83 of the Evidence Act operates as a bar to the proposed tender by the Crown of what are said to be a series of “joint admissions”. She submitted that nothing Moses Obeid said in the Shanahan/Jiminez interview of 18 December 2012 is capable, as a matter of law, of being admitted against Edward Obeid irrespective of his presence throughout the tape-recorded interview, his participation in that interview, and what is said to be his adoption, explicitly or implicitly, of what Moses Obeid is recorded as saying to the journalists.

“Consciousness of guilt lies”

1. [40]

   It is an uncontroversial proposition that not all previous representations alleged by the Crown to be lies are capable, as a matter of law, of being relied upon by the Crown as a category or type of circumstantial evidence probative of guilt.

2. [41]

   In Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, Deane, Dawson and Gaudron JJ made it clear that, ordinarily, a lie will affect only the credit of a witness, including an accused, and that it is only in “limited circumstances” where the telling of a lie by an accused can amount to conduct which is “inconsistent with innocence, and amount therefore to an implied admission of guilt”: at 208. Their Honours said (at 209):

3. [42]

   Defence counsel argued that the approach of the Crown and its nomination of multiple lies told by each of Edward Obeid and Moses Obeid identified in Attachment 1 and Attachment 2 to its submissions, conflates the discrete requirements that must be satisfied before the Crown is entitled to have admitted into evidence what are said to be deliberate lies told to either the journalists or officers of ICAC during the execution of the search warrant as items of circumstantial evidence supporting an inference of their guilt.

4. [43]

   Defence counsel submitted the error in the Crown’s approach to the question of admissibility is exemplified in its submission that “[i]t is enough if the lie reveals knowledge of an aspect of the offence charged, or that it is concerned with some circumstance or event connected with the offence”. [20]

5. [44]

   I accept that the Crown’s unattributed statement at [31] of its submissions does little to illuminate what, according to the Crown, the accused in this trial needed to know or to have been aware of in order to have formed the intention to enter into an agreement with each other and Mr Macdonald of the scope and nature of the agreement the Crown seeks to prove or what they are each alleged to have done in achieving the object of that agreement. I also accept that the identification of those various facts and circumstances would, ordinarily, be a step foundational to the question whether what are said by the Crown to be “consciousness of guilt lies” were told because of a realisation by each of the accused that they had in fact agreed with Mr Macdonald that he would supply them with confidential information or treat them with favouritism in relation to the granting of a coal exploration licence at Mount Penny, and a realisation that the truth would reveal that they had also done acts and/or made declarations in furtherance of that agreement.

6. [45]

   However, having regard to the fact that a common law conspiracy to commit the common law offence of wilful misconduct in public office is “the offence” that the Crown alleges that the “consciousness of guilt lies” are relevantly and materially related to, being “the offence” in respect of which it is alleged the accused were motivated to lie in order to conceal their complicity, the approach I propose to take is to assess whether a particular previous representation said by the Crown to be capable of being an implied admission of guilt has the capacity to either reveal that the accused whose previous representation is under consideration intentionally entered into the agreement the subject of the conspiracy or that the statement has the capacity to be construed as an attempt to conceal both the existence of the conspiracy and the accused’s participation in it.

7. [46]

   I am satisfied that does not offend the prohibition on circuitous or “bootstrap reasoning” variously identified in the authorities as a prohibition against the use of a “consciousness of guilt lie” as providing circumstantial support for proof of guilt where the Crown case depends upon circumstantial reasoning. [21]

8. [47]

   Further, I am not persuaded that the time at which the accused were first charged with the conspiracy, relative to the time at which the lies were allegedly told, has any bearing on whether the lies are capable of constituting a “consciousness of guilt lie” as a matter of law.

9. [48]

   Excluding those representations said to have been made by Mr Campo and Mr Lewis, there are 36 representations in Attachment 1 and Attachment 2 relied upon by the Crown as capable of being treated as a “consciousness of guilt lie”. Of those 36 representations, I am satisfied that 10 are capable of supporting the inference for which the Crown contends, namely lies told by either Edward Obeid or Moses Obeid at a time when they were conscious that they had both conspired with Mr Macdonald, in the way the Crown alleges, with the object of that unlawful agreement being the generation of a financial advantage to the accused and/or their family or associates. That leaves open the question whether, in the context of all of the evidence adduced at trial, I am satisfied that a particular representation in fact supports an inference of guilt.

10. [49]

    I am satisfied for the reasons which follow, when considered in the context of all of the evidence adduced thus far in the trial, and having considered the submissions by counsel about the evidence, that, for admissibility purposes, 10 of the 36 representations identified in the schedule to the judgment are capable of being considered as “consciousness of guilt lies” and that they are admissible on that basis as part of the Crown case against each of the accused.

11. [50]

    In short, that ruling reflects a finding, on the balance of probabilities, that the motive for each of the lie(s) was a realisation of guilt and a fear that the truth would expose the fact that confidential information had been received from Mr Macdonald concerning the potential for the granting of a coal exploration licence over the land the Obeid family owned or controlled in the Bylong Valley and the fact of their criminal complicity, more generally, with Mr Macdonald in the commission by him of the multiple acts of wilful ministerial misconduct. It also follows that I am satisfied that the ten “consciousness of guilt lies” are capable, when the Court is sitting as the tribunal of fact on the ultimate question of whether guilt is proved beyond reasonable doubt, as revealing a consciousness of guilt of the specific offence with which the accused are charged and in that way are probative of that fact.

12. [51]

    Having regard to the context in which the particular false representation of fact was made, I am satisfied that what was said by each of the accused to the particular journalist was not inadvertent.

13. [52]

    I am satisfied that the particular false representation(s) of fact by each of the accused to either Ms Ong, Ms Davies or to Mr Shanahan and Ms Jiminez is relevant to proof of a fact in issue in the trial for the following reasons:

14. [53]

    I am also satisfied to the relevant standard of proof that what Moses Obeid told Mr Shanahan and Ms Jiminez concerning his knowledge of Monaro Mining’s lodgement of an expression of interest for the granting of a coal exploration licence at Mount Penny was a deliberate and material lie for the following reasons:

15. [54]

    Mr Kalyk and Ms Francis referred to a number of authorities in support of their submission that what was said by their client in all 36 line entries relied upon the Crown as previous representations capable of being admitted as “consciousness of guilt lies” are, when fully interrogated by the Court, “intractably neutral” [25] , in the sense that they are lies which are incapable of constituting an implied admission of guilt because there is an innocent explanation for the false representation that is “equally as likely” as the inference of guilt for which the Crown contends. I am unable to accept that submission.

16. [55]

    Although the context in which the representations were made by each of Edward Obeid and Moses Obeid, predominantly to a journalist and not an investigating officer or interrogating official [26] , is unusual, that fact does nothing, per se, to deprive the representations of having capacity to be received into evidence as an implied admission of guilt. Similarly, while I accept that the avoidance of unwanted media attention on Edward Obeid and his family and/or the promotion of positive public, political or commercial relations might provide a competing explanation or interpretation for what they each said during the course of being interviewed, their previous representations are not necessarily explained in that way. In my view, they are both matters to be considered on the ultimate question whether I am satisfied that the motive of each of the accused to deliberately and falsely represent the truth was because each of them knew that they had engaged in a criminal conspiracy with each other (and Mr Macdonald) of the nature and scope alleged by the Crown, and that with that knowledge they were determined to conceal the fact that in the successful implementation of that unlawful agreement they had secured a vast financial return for their family.

17. [56]

    While those authorities and others to which the Court was referred are a source of principled guidance and instruction as to the way in which “consciousness of guilt lies” should be approached when the tribunal of fact is considering whether the inference of guilt for which the Crown contends is an inference that can be properly and safely drawn, they are not determinative of the admissibility of what the Crown submitted were a total of 36 “consciousness of guilt lies” told by Edward Obeid and Moses Obeid.

18. [57]

    Other cases decided by this Court sitting as a Court of Criminal Appeal and decisions of the High Court to which defence counsel referred in their submissions concerned the adequacy of directions by a trial judge to a jury as to how they might consider evidence relied upon by the Crown as evidencing lies told with a consciousness of guilt [27] , including the need for a trial judge to caution a jury before they acted in reliance upon conduct relied upon by the Crown as evidencing a consciousness of guilt in their deliberations to verdict and the need for the jury to be conscious that the evidence is only relevant to proof of the offence charged and not some other offence or other discreditable conduct. [28]

19. [58]

    While I am not satisfied that the remaining 26 statements relied upon by the Crown as constituting “consciousness of guilt lies” satisfy the requirements for admission into evidence, I do not propose to give detailed reasons for that finding. Suffice to say that I reached that conclusion for a number of reasons, including a lack of precision as to the circumstances or events which are said to indicate that what was said by the Crown to be deliberately false statements and/or insufficient materiality in what was alleged to be a lie and a lack of clarity as to how the alleged lie was capable of being motivated by a consciousness of guilt of the conspiracy charged. I would, however, make the following observations.

20. [59]

    The evidence adduced by the Crown in the trial deals with events which extend over many years, inclusive of the timeframe named in the indictment during which the conspiracy was in its currency, being a period of 14 months between September 2007 and January 2009. That body of evidence is relied upon by the Crown to prove a vast range of convergent and, in some instances, divergent facts and circumstances as part of the Crown’s circumstantial evidence case. The Crown must be in a position, while still in its case, to fairly anticipate any positive case that the accused may choose to advance. The Crown must also, whilst in its case, be alert to any closing submission that the accused might advance to the effect that there is a material deficiency in the evidence such as to lead to a doubt as to whether the multiple acts of wilful misconduct alleged to have been committed by Mr Macdonald were in furtherance of the conspiracy alleged (as distinct from being his unilateral acts) and alert to a submission that there is a material deficiency in the evidence on some other basis, leaving room for doubt as to whether either or both of the accused Edward Obeid and Moses Obeid entered into an agreement which had the commission of those acts of misconduct as its object. The potential significance of “consciousness of guilt lies” (and s 81 admissions against interest) in meeting those submissions might prove to be considerable.

21. [60]

    Whilst those remarks should not be interpreted as in any sense displacing the need for this Court, sitting without a jury, to apply a level of caution when called upon to ultimately reason to a finding as to whether the Crown has proved its case against each of the accused beyond reasonable doubt, I am mindful, as I have said on a number of occasions, that such rulings as I have made allowing the Crown to close its case on the basis that there are available to it out-of-court statements by each of the accused that are capable of constituting a lie or lies told by each of them and motivated by a consciousness of guilt, that the parties should not think that I have found, as a matter of fact, that the ten “consciousness of guilt lies” identified in the schedule to the judgment (each being a deliberately false representation of fact told by each of the accused) is susceptible to explanation only on the basis that the truth would implicate each of the accused as a co-conspirator in the conspiracy alleged or as actually supporting proof of the ultimate fact in issue, namely proof of the guilt of the accused beyond reasonable doubt.

The Ong and Davies interviews with Edward Obeid and Moses Obeid as s 81 admissions

1. [61]

   Turning first to the telephone interviews conducted by Ms Ong with Edward Obeid and by Ms Davies with each of Edward Obeid and Moses Obeid on 14 and 20 May 2010.

2. [62]

   As is clear from Ms Davies’ statement of 30 October 2012, the focus of her interview of both accused was their knowledge of or involvement in the acquisition of Donola and Coggan Creek at a time when her journalistic research had led her to the understanding that those two properties, together with Cherrydale Park (which she was already aware from previous research was purchased by a company associated with the Obeids), were within what she described in her statement as “a tender for the exploration licence” in the Bylong Valley.

3. [63]

   She said after making contact with Mr Lewis and Mr Campo by email (the details of which are unimportant having regard to my ruling that the emails are inadmissible) she pursued an interview with Edward Obeid and Moses Obeid. She said she spoke to Edward Obeid first and made handwritten notes of the conversation as it occurred. She said they spoke extensively about Cherrydale Park which she reported upon in the article published on 20 May 2010. She said Edward Obeid gave her Moses Obeid’s phone number and she made immediate contact with him noting in handwriting the conversation with him as it took place.

4. [64]

   I have already ruled on what the Crown alleged were four “consciousness of guilt lies” Edward Obeid told Ms Davies and six “consciousness of guilt lies” Moses Obeid told Ms Davies, in each case finding only one representation from each accused (line entries 6 and 24) was capable of constituting an implied admission of guilt.

5. [65]

   The Crown submitted that even if what Moses Obeid said to Ms Davies is incapable, as a matter of law, of constituting a lie or lies told with a consciousness of guilt, those out-of-court statements (and the previous representations containing the fact, or facts, Moses Obeid intended to assert) are, nonetheless, capable of rational acceptance as an admission or admissions made by him against interest under s 81 of the Evidence Act. I rejected the tender of that representation as having that capacity.

6. [66]

   Insofar as concerns the Crown’s “default position” that even if the previous representations attributed to each of Edward Obeid and Moses Obeid in Ms Davies’ notes (some of which were reproduced in the published article) and Ms Ong’s statement (also reproduced in the published article) are not capable of amounting to “consciousness of guilt lies”, they are nonetheless capable of amounting to admissions against interest, thereby satisfying the exception to the hearsay rule in s 81 of the Evidence Act, both defence counsel submitted that the Crown had failed to satisfy the requirements for admission of any of those representations as capable of constituting “admissions against interest”.

7. [67]

   The Crown also relied upon Edward Obeid’s assertion that he knows Mr Lewis because his sons had grown up with him at Hunters Hill, an admission against interest simpliciter pursuant to s 81 of the Evidence Act.

8. [68]

   Ms Francis submitted that at least insofar as the “admissions” by Edward Obeid that the Crown allege source from Ms Davies’ notes or Ms Ong’s interview are concerned, the Crown had failed to satisfy the test in s 88 of the Evidence Act for the reception into evidence of any such “admission”, since the Court would not be satisfied it is “reasonably open” to find that Edward Obeid “made” any of the admissions (as defined) in what he is alleged to have said to either of those journalists. Counsel for Moses Obeid adopted those submissions.

The rule against hearsay

1. [69]

   Section 59 of the Evidence Act provides:

2. [70]

   In Higgins v R [2020] NSWCCA 149, a decision to which I have already referred, albeit in the context of considering the operation of s 87(1)(c) of the Evidence Act, Payne JA observed as follows:

The section 81 exception

1. [71]

   Section 81 operates as an exception to the rule against hearsay:

2. [72]

   The Dictionary to the Evidence Act defines an admission as follows:

3. [73]

   Since an admission is defined in the Dictionary to the Act to mean a previous representation that is “made” by a person who is a party to a proceeding (in this case each of Edward Obeid and Moses Obeid as co-accused in a criminal trial), in order for what the Crown alleges are admissions “made” by each of the accused to each of the journalists to be admitted into evidence, the Crown has the burden of persuading the Court, in accordance with s 88 of the Evidence Act, that it “is reasonably open to find” that an alleged admission was “made” by one of the accused.

4. [74]

   Given the quality of the tape-recorded interviews in December 2012 and the settled form of the transcript of those interviews (and leaving to one side for present purposes the question whether any of the “admissions” are in the category of what the Crown described as “joint admissions”), I am well satisfied that what the Crown identifies as admissions against interest by each of the accused in Attachment 1 to the Crown’s submissions referable to the Shanahan/Jiminez interview was made by the accused (being either an admission simpliciter or a previous representation that was not capable of constituting a “consciousness of guilt lie” but was admissible as constituting an admission against interest). That then leads to the question whether any of those previous representations are capable, as a matter of law, of constituting an admission against interest.

5. [75]

   The same degree of certainty does not attach to what are alleged by the Crown to be admissions Edward Obeid made to either or both of Ms Ong and Ms Davies, and admissions Moses Obeid allegedly made to Ms Davies, particularly where Ms Davies’ notes require a high degree of interpretation and reconstruction of the likely course of her questioning to reach an understanding of what words she attributes to one or other of the accused.

6. [76]

   While I am able to reason to a finding, in accordance with s 88 of the Evidence Act, that it was “reasonably open” for me to be satisfied that some of the previous representations the Crown would attribute to Edward Obeid and Moses Obeid as admissions were made by them (either because Ms Davies’ notes were sufficiently clear or because the accused were “quoted” in the newspaper articles that were published within days of the interviews), there are other previous representations I am not satisfied were “made” by an accused to the prima facie standard of proof in s 88 to qualify for admission under s 81.

7. [77]

   In the Schedule to this judgment, my ruling that a given line entry referable to both Ms Ong’s interview of Edward Obeid and Ms Davies’ interviews of Edward Obeid and Moses Obeid is “incapable of constituting an admission against interest under s 81” is principally based upon that reasoning. The same reasoning was applied to those rulings where I was satisfied that a previous representation did not qualify as a “consciousness of guilt lie” but might have qualified for admission under s 81.

8. [78]

   Of the previous representations alleged by the Crown to have been “made” by Edward Obeid or Moses Obeid to either or both of Ms Ong and Ms Davies and alleged by the Crown to constitute an admission against interest under s 81, I was satisfied it was reasonably open to find only four previous representations were “made” by Edward Obeid to either Ms Ong and/or Ms Davies [29] . Of those I was also satisfied, for the reasons which follow, that each were capable of being treated as a previous representation adverse to the interests of Edward Obeid in the outcome of the trial.

9. [79]

   Of the further nine previous representations of Edward Obeid [30] , being previous representations made in both the Shanahan/Jiminez interview and in the execution of the search warrant [31] (disregarding the two additional representations said by the Crown to amount to joint admissions with Moses Obeid [32] ), I was also satisfied, for the reasons which follow, that nine were capable of being treated as a previous representation adverse to the interest of Edward Obeid in the outcome of the trial, that assessment, as with the question whether Edward Obeid’s previous representations qualified as admissions, being made at the time of judgment not at the time the representation/admission was made.

10. [80]

    Approached in that way, the circumstances surrounding the various interviews with journalists, including the state of mind of the accused at the time they each voluntarily participated in the interview, do not inform the question whether a particular representation is capable of constituting an admission under s 81 of the Evidence Act.

11. [81]

    Although the assessment as to whether a particular previous representation is capable of constituting an admission against interest is to be made at the point of admissibility, the content of the representation, in particular, where what is said by an accused is shown by other evidence in the trial to be demonstrably untrue, may nonetheless inform the question whether the admission of that representation into evidence is capable of being assessed as being adverse to the accused in the outcome of the trial. Put another way, while I have found that some of the previous representations by each of Edward Obeid and Moses Obeid are not capable of constituting a “consciousness of guilt lie”, where that representation contains a false representation of fact, and where I am satisfied that it reasonably open to find that it was knowingly false (although not capable for other reasons of demonstrating a motivation to conceal an accused’s guilt), it may constitute an admission against the interest of the accused in the outcome of the trial for that reason.

12. [82]

    Before turning to consider why I have ruled that certain of the line entries in the schedule attached to the judgment are capable of constituting a s 81 admission against interest, it is useful to make the following further general observations.

13. [83]

    I am satisfied that each of the representations made by the accused to the four journalists over successive years between 2009 and 2012 are capable of being understood as having been made in the context of them resolving (sometimes jointly, at other times apparently individually) that they should make public the reason for the involvement of the Obeid family in what had, by as early as October 2009, being the public release to tender of the Mount Penny Coal Release Area - an area which included Cherrydale Park (the registered proprietor of which was an Obeid company) and the two adjacent rural properties Coggan Creek and Donola (registered in the names of two apparently unrelated third party entities). While nothing was said expressly, I am also satisfied that the accused were, at least in the December 2012 interview, concerned to maintain the position that the designation of the Mount Penny Coal Release Area had nothing to do with any favouritism Mr Macdonald had provided to them because of any personal relationship either of the accused had with him or any professional relationship between Edward Obeid and Mr Macdonald. Although that analysis does not inform the evaluative exercise involved in determining whether what was actually said by the accused to the journalists qualifies as admissions against interest under s 81 of the Evidence Act, it may inform the ultimate weight to be afforded to the admissions in the Court’s deliberations to verdict.

14. [84]

    I also acknowledge that the evaluative exercise which is involved in assessing whether a particular statement is capable of having an effect upon the outcome of the trial that is adverse to the interests of the accused operates as “a substantial constraint” on the admissibility of an alleged admission [33] . I accept that for an alleged admission to be admitted into evidence under s 81, the Crown must make clear that it relies upon what was said by a particular accused to prove the existence of a fact or facts the accused intended to assert by what was said (or an implied belief as to the existence of the fact so asserted), in order to make clear that it is the assertion of fact which must be shown to be capable of being adverse to the interests of the accused in the outcome of the trial, as distinct from what was said to the journalists being used by the Crown as primary or direct evidence of an accused’s actual participation in the conspiracy or otherwise used by the Crown to establish its case.

15. [85]

    I note in that connection Ms Francis’ reference to Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71. That authority was principally cited by her in support of the submission that statements made by Moses Obeid in the Shanahan/Jiminez interview ought not be admitted against Edward Obeid as joint admissions. However, to the extent that it was relied upon by Ms Francis as authority for the proposition that in order for a previous representation to be capable of constituting an admission against interest, the state of knowledge (in this case the knowledge of the accused Edward Obeid) should be interrogated to ensure the Court is satisfied that what is being represented are facts he intended to assert as distinct from merely implying a belief in what is being told by others, I do not read the authority as going that far. I do accept, however, that it is authority for the proposition that the ultimate probative force of an admission (whether at common law or under the Evidence Act) must, in the ultimate, be determined by reference to the circumstances in which an admission is made and it may depend, at that time, on the Court coming to a settled view about the party’s source of knowledge (again, in this instance the knowledge of the accused Edward Obeid as to various factual representations he made in the course of the Shanahan/Jiminez interviews).

Consideration

1. [86]

   Many of what were relied upon by the Crown as s 81 admissions failed to qualify as a representation by either Edward Obeid or Moses Obeid as to the existence of a fact or facts they intended to assert, being either too vague or imprecise to satisfy the test of “adversity” in the relevant sense.

2. [87]

   The representations that did qualify as “admissions” by Edward Obeid in the relevant sense, are capable of being grouped into four generalised categories:

3. [88]

   As concerns the first category in (a) above, I accept the Crown’s submission that Edward Obeid’s repeated and vocal regard for Cherrydale Park as a rural retreat for his extended family, including the need for substantial extensions to be made to the property and to the homestead to which he would later retire and including, in the short to medium term, a property that would support beef production in pursuit of which substantial investments had been made, supports the rational inference that he would not have been ignorant of arrangements made by his three sons for the forging of a “landowners alliance” from as early as June 2008, arrangements which were made with the ultimate objective of monetising the prospects of contracting with a mining company for the exploitation of coal under Cherrydale Park including, necessarily, the sale of the property. To the extent that inference is ultimately drawn, it is clearly adverse to Edward Obeid’s position as an accused in the trial.

4. [89]

   As concerns the representation in the second category in (b) above, line entry 7 of Attachment 1 was originally provisionally admitted under s 81 as capable of constituting an admission against interest against Edward Obeid. A ruling has not been made in respect of that representation that it is admissible in the trial for the reasons provided in the separate judgment R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 16) [2020] NSWSC 1950.

5. [90]

   As concerns the representation in the third category in (c) above, I accept the Crown’s submission that in admitting he spoke with Mr Macdonald directly to see whether he had any knowledge of the mine being planned by Anglo in the Bylong Valley, Edward Obeid shows at least a preparedness to utilise his Parliamentary contacts to make enquiries for personal reasons. In that sense, the representation is an admission capable of being material to the outcome of the proceedings and adverse to Edward Obeid as an accused in the trial.

6. [91]

   As concerns the representations in the fourth category in (d) above, Edward Obeid’s assertion that in January/February 2008 “Rocco” was interested in buying Donola to build a house and that “the Obeids” (Damian Obeid in particular) would assist him to “run cattle” by utilising the existing infrastructure, is unsupported by the evidence, where the overwhelming inference is that Donola was acquired by Geble Pty Limited (a company controlled by Moses Obeid) and that it was acquired to build up the land mass that might be covered by a coal exploration licence. I am satisfied that, viewed in that way, the representation is capable of constituting an admission against interest as is his claim to know, as a matter of fact, that it is common practice for a landowner to pursue rights to seek to capitalise on a mining deal.

Are any of the admissions “joint admissions”?

1. [92]

   Section 83 of the Evidence Act provides:

2. [93]

   The operation of s 83(1) is uncontroversial if for no other reason than that an admission is defined in the Dictionary to the Evidence Act as a previous representation “made by a person who is or becomes a party to the proceedings”. In a trial in which accused are tried jointly, neither is a party to the trial of a co-accused.

3. [94]

   Accordingly, in joint criminal proceedings, s 83 operates to ensure that evidence of an admission by one accused cannot be used against another accused in the proceedings unless the second accused consents, as provided for in s 83(2), or by operation of s 87(1)(c).

4. [95]

   Unsurprisingly, consent is not forthcoming in this trial. Additionally, the Crown does not rely upon s 87(1)(c), doubtless in recognition of the fact that the alleged admissions by Edward Obeid and Moses Obeid in the Shanahan/Jiminez interview were made three years after the conspiracy had been fully executed such that it could not meaningfully be said that the previous representations of either of Edward Obeid or Moses Obeid at that time could be in furtherance of the common purpose comprehended by the conspiracy during its currency.

5. [96]

   The question that arises on the Crown’s application that some of the previous representations made in the Shanahan/Jiminez interview which qualify as admissions against interest made by Moses Obeid and Edward Obeid as individuals should be admitted against the other accused, is whether s 83(1) absolutely prohibits a ruling of that kind.

6. [97]

   The Dictionary to the Evidence Act does not recognise the concept of “a joint admission” and, as noted above, s 81(1) is concerned with previous representations made by a party.

7. [98]

   For the purposes of admissibility, categorising what occurred in the course of the Shanahan/Jiminez interview as including “joint admissions” is, in my view, unhelpful and apt to mislead. What the Crown is actually seeking to have admitted is not a series of joint admissions per se, but a series of previous representations made by each of Edward Obeid and Moses Obeid in the course of their recorded dialogue about a particular subject matter in the course of being interviewed (although frequently without the intervention of the interviewer asking a question). It is in the course of large passages of uninterrupted dialogue that I am satisfied that each of the accused conveys or communicates the existence of facts or a state of facts which it is reasonably open to find were intended to be conveyed or communicated by them, including from time to time by an express adoption of what the other is saying, and frequently with each of them using the first person plural subject pronoun “we”, as well as the first person plural object pronoun “us”, to convey what was “thought” or “done” or “learnt” or “discovered” by the Obeid family concerning the potential for the mining of coal reserves in the Bylong Valley.

8. [99]

   The situation may have been different were the accused interviewed together in a more formal setting with questions being asked by the interviewer of an individual accused and answered by that person, albeit in the presence of another accused. There is clear authority for the proposition that the mere presence of a co-offender does not displace the prohibition on the tender of admissions made by one accused against another, although conduct which constitutes an implied adoption of the admissions made by another may suffice.

9. [100]

   I accept the fundamental proposition that it is essential when considering the admissibility of a previous representation under s 81 and after a previous representation is admitted as capable of being treated as an admission when the Court is sitting as the tribunal of fact to identify precisely what it is that is being admitted. I also accept that when those questions are being considered the context in which an admission is made may be critical. [38]

10. [101]

    Insofar as context might inform the question whether a previous representation made by Edward Obeid and Moses Obeid in the sense being discussed qualifies as an “admission”, I am of the view that the Shanahan/Jiminez interview was an environment in which both of the accused actively and freely participated in the unfolding dialogue in which they were jointly engaged, even to the extent, at times, of adding content to what was being said by the other. To put it in the context of the language of the Evidence Act, I am satisfied that what they each intended to assert about a fact or state of facts is informed by that level of engagement. [39]

11. [102]

    Lustre Hosiery was a case decided many years before the passage of the Evidence Act and should be read in a qualified sense for that reason. Following the passage of the Evidence Act in 1995, the concept of a “representation” and the definition of “a previous representation” are deployed both in the operation of the hearsay rule and the exceptions to it, in substitution for the common law concept of an admission receivable in evidence against the party making it, where the conduct of the admitting party discloses an intention to affirm or acknowledge the existence of a fact, whatever that party’s source of information or belief about that state of affairs might be.

12. [103]

    That said, Lustre Hosiery continues to be an authority cited where admissions by a third party are sought to be admitted against a party to proceedings. However, as I read those authorities, the need to consider the source or context of the knowledge of the third party has its most direct bearing on an assessment of the ultimate probative force of what is contended for as an admission in the context of the issues at trial, an assessment which must then be made referable to the circumstances in which the admission is made and what the evidence reveals, at that time, about the source of that person’s knowledge of the facts intended to be asserted or conveyed. [40] In short, I do not consider that such enquiry as might be meaningfully undertaken of the source, in particular of Edward Obeid’s knowledge of the various asserted facts, warrants the exclusion of any of the admissions under consideration in this category.

13. [104]

    The Crown relied upon a number of occasions in the course of the interview where representations were made by each of the accused and should be admitted against both accused in the sense discussed above. I have resolved that the following line entries in Attachment 1 to the Crown’s submissions, being previous representations which I have already ruled are admissible against one or other of the accused Edward Obeid and Moses Obeid as capable of amounting to s 81 admissions, are admissible on that basis against Edward Obeid and Moses Obeid.

The previous representations made in the course of the execution of the search warrant

1. [105]

   The Crown seeks to rely upon previous representations attributable to each of Edward Obeid and Moses Obeid which were recorded in the process of the video recording of the execution of the search warrant.

2. [106]

   As already discussed at length above, s 81 of the Evidence Act operates as an exception to the hearsay rule (and the opinion rule) where a previous representation is capable of being considered adverse to the representor’s interest in the outcome of the proceedings. Similarly, as already discussed, the preconditions to the admissibility of representations said to constitute a “consciousness of guilt lie” include that the lie (which must be precisely identified by the Crown) was told deliberately and not inadvertently, and that there be a demonstrable and material link between the lie told and the guilt of the accused of the offence charged.

3. [107]

   The Crown relied upon a total of three line entries in Attachment 2 to its written submissions as either capable of being admitted as a “consciousness of guilt lie” and/or as a s 81 admission by Moses Obeid, and four line entries as capable of being admitted as s 81 admissions made by Edward Obeid.

4. [108]

   In accordance with the ruling attached as a Schedule to this judgment, I rejected the tender of each of the three previous representations tendered against Moses Obeid, and ruled that two of the three representations attributed to Edward Obeid are capable of constituting a s 81 admission against interest. I have already given reasons for the admissions alleged to have been made by Edward Obeid.

5. [109]

   To the extent that the Crown sought to tender the representations of one accused against the other by reason of their mere presence during the course of the execution of the warrant, that is an approach that is not supported by authority; neither is it supported by the analysis which I have applied to the tender of some of the line entries extracted from the Shanahan/Jiminez interview relied upon by the Crown as “joint admissions” and the reception into evidence of some of them.

6. [110]

   What follows are my reasons for rejecting the tender of the previous representations made by Moses Obeid (each of which were statements made in the process of him being shown and apparently reading the facing page of the occupier’s notice) and rejecting the tender of the representations made by Edward Obeid concerning his computer literacy.

7. [111]

   As to the latter, the Crown submitted that the representation by Edward Obeid that he is computer illiterate, including a representation that he is computer illiterate to the extent that if he received emails “he would get one of the boys to take it out [of the computer] for him”, is an admission against interest in the relevant sense in circumstances where there is a conspicuous lack of electronic correspondence between Edward Obeid and his sons, including, so far as the period of the conspiracy and the subsequent entrepreneurial phase are concerned, email communications either with Moses Obeid or email communications between Moses Obeid and others where Edward Obeid might have been copied in as a recipient.

8. [112]

   The Crown submitted, in effect, that the asserted fact of Edward Obeid’s computer illiteracy has the capacity to be adverse to his interests in the outcome of the trial in that, if admitted, the Crown would be in a position to advance the submission that his computer illiteracy provides an explanation for the absence of electronic correspondence with the other co-conspirators in furtherance of the conspiracy and during the entrepreneurial phase. That submission is said to support the Crown case that Edward Obeid in fact participated in the conspiracy (and in the entrepreneurial phase) but by non-electronic means. I am unable to accept that reasoning as persuasive. The sufficiency of the evidence to support proof of the fact beyond reasonable doubt of Edward Obeid’s participation in the conspiracy is a matter in contest. In the event that I am satisfied that he was in regular, to the point of continuous, telephone contact with Moses Obeid, and in regular telephone and face-to-face contact with Mr Macdonald, such as to support evidence of his participation in it, it is the testing of that evidence for its adequacy in proof of guilt and not the absence of evidence of contact by other means which should be the focus.

9. [113]

   Insofar as concerns the Crown’s reliance upon several representations by Moses Obeid concerning his unfamiliarity with companies “whose records and documentation in a wide range of categories” the search warrant authorised officers to search for and seize (including records related to the disbursement of funds to the shareholders of some companies and the sale of shares to others) as an implied admission of guilt (that is, as a lie or lies told with a consciousness of guilt), I am not satisfied that in the circumstances in which Moses Obeid was shown the warrant, and the relatively limited opportunity he had to read and comprehend its terms, that any false statement by him was deliberate as distinct from inadvertent. That is, I am not satisfied of one of the common law preconditions to the admission of a lie as capable of constituting a “consciousness of guilt lie”.

10. [114]

    That same analysis applies to the question whether the previous representations made when Moses Obeid was reading or apparently reading the face of the occupier’s notice should be admitted under s 81 as admissions against interest. While I am satisfied of the words Moses Obeid used, I am not satisfied that the representation the Crown attributes to him was made by him in the sense that it was a clear and categorical statement of fact. Even if that analysis is flawed, and the previous representations concerning his knowledge, familiarity or memory of the companies named in the warrant (other than Locaway which has considerable prominence as a company name on the warrant) are capable of constituting an admission against interest, I would have rejected the evidence in the exercise of the general discretion in s 137 of the Evidence Act, in circumstances where I am of the view that the probative value of the alleged admissions is grossly outweighed by the danger of prejudice to the accused. That is not to say that it is the circumstances that generate the risk of prejudice but what I consider to be the low probative value of the admission as adverse to Moses Obeid’s interest in the outcome of the trial.

Should the discretion in s 90 of the Evidence Act or the general discretions in s 135 or s 137 of the Evidence Act be exercised in respect of any or all of the admissions that I have resolved to admit either as “consciousness of guilt lies” or admissions against interest?

1. [115]

   In my view there is no warrant for the exclusion of the evidence on discretionary grounds.

2. [116]

   The focus of the unfairness contemplated by s 90 of the Evidence Act is as settled in Em v R (2007) 232 CLR 67; [2007] HCA 46 at [107]:

3. [117]

   Much was sought to be made in the submissions of defence counsel about the fact that the circumstances in which the admissions were made, or lies allegedly told to each of Ms Ong and Ms Davies being against a background of unsolicited and adverse attention from other members of the press over a number of years, is such that each of Edward Obeid and Moses Obeid might have been motivated to engage proactively with the press and in the process to have abandoned their right to silence. That does not, however, inform the unfairness discretion in s 90.

4. [118]

   Neither does the fact that ICAC had commenced a public enquiry under the operation name “Jasper” at the time of the Shanahan/Jiminez interview inform the question of unfairness under s 90 of the Evidence Act. In fact, it is difficult to conceive of any relevant unfairness to the accused in admitting the representations made to those two journalists against them at their trial given their voluntary participation in the interview at a time when they were well aware of the ambit and scope of the public enquiry where a vast number of witnesses had already given evidence and at the time when the attendance of the accused at the inquiry was pending.

5. [119]

   The general discretions have a limited application in a judge-alone trial. There is, in my view, no basis to invoke the discretion in s 135 of the Evidence Act and insofar as s 137 does have an operation, I am unable to assess the probative value in any of the out-of-court statements as outweighed by the risk of unfair prejudice [41] , a balancing exercise that does not oblige me to undertake any evaluative assessment of what might ultimately be competing inferences as to what motivated either of the accused to make false statements to members of the press, nor does it oblige me to make any assessment of the ultimate probative value of any alleged admissions in proof of the matters in issue in the trial.

6. [120]

   Line entries which are admissible as capable of constituting a “consciousness of guilt” lie are shaded.

7. [121]

   Line entries which are admissible under s 81 as capable of constituting an admission against interest are in bold.

8. [122]

   Line entries which are not pressed are omitted.

9. [123]

   Line entries which pertain to Davies emails with Justin Kennedy Lewis and Davies emails with John Campo are omitted (Lines 9-23 of Attachment 1).