R v Maitland (No 5)

At the close of the Crown case, Mr Jordan SC, who appears with Mr Kerkyasharian on behalf of the accused Maitland, made the following applications:

Before addressing these applications, I propose to set out, where relevant, the indictment, and also the relevant legislative framework.

The accused Maitland is charged with being an accessory before the fact to two offences with which the accused Macdonald is charged. The charges against the accused Macdonald are as follows:

Count 2, against the accused Maitland, charges that he, in respect of the offence in count 1:

Count 4, against the accused Maitland, charges that he, in respect of the offence in count 3:

For reasons which will be separately published, the current draft of the elements of the offence against the accused Macdonald are as follows:

The first of the accused Maitland’s applications is for a directed verdict on the basis that the Crown cannot prove the accused Maitland’s guilt of the second count, since it cannot prove, as a matter of law, that the accused Macdonald granted consent to DCM to apply for an exploration licence under the Mining Act 1992 (NSW) on or about 21 August 2008.

To determine this application it is necessary to consider the relevant statutory framework. It is also necessary, including for the purposes of determining the future conduct of the trial, if a case to answer is found, to consider whether the question raised by Mr Jordan is a pure question of law (and therefore a matter for me as the tribunal of law), or whether it also contains matters which are to be determined by the jury as the tribunal of fact.

Part 3 of the Mining Act 1992 (NSW) (the Act) provides for Exploration Licences. Division 1 makes provision for applications and tenders. Section 13 of the Act provides for applications for exploration licences. Section 13(4) provides that an application (for an exploration licence) that relates to land within a minerals allocation area may not relevantly be made without the consent of the Minister. In the Dictionary to the Act “mineral allocation area” is defined as a mineral allocation area gazetted under s 368. By notice published in the Government Gazette on 14 December 2007 the Minister (the accused Macdonald) ordered that the whole of New South Wales was constituted a Mineral Allocation Area for coal pursuant to s 368. The effect of this order was that no exploration licence with respect to coal could be applied for without Ministerial consent.

There are no formal requirements in s 13(4) for the giving of consent. Section 14 concerns “invitation for tenders” and applies only in relation to allocated minerals in land within a mineral allocation area. Section 14(2) empowers the Minister to invite tenders by published notice. The requirements for such invitations are set out in s 14(3). Section 15 provides for tenders for exploration licences, in response to invitations issued under s 14, and requires particulars of the financial resources available to the tenderer, the amount to be spent on prospecting and other matters. Section 16 provides that the Minister may require an applicant to provide further information “in connection with the application”, including information about the control of companies not registered in New South Wales.

The evidence in the trial indicates that the procedure of invitation for tenders contemplated by s 14 was not used by the Minister. Accordingly, the requirement for particulars to be given in s 15 was not applicable in terms. The Act does not restrict that the giving of consent to apply for an exploration licence under s 13(4) to circumstances where the procedure in ss 14 and 15 (an invitation published in accordance with s 14 and resultant tenders being lodged in accordance with s 15) is used. The procedure which appears to have been used in the present case is that DCM requested consent under s 13(4) to apply for an exploration licence, there having been no previous invitation issued under s 14.

The letter relied on by the Crown as constituting consent is set out in full below:

I understood Mr Jordan to accept that the letter dated 18 March 2008 referred to in the first paragraph was an application for consent to apply for an exploration licence.

Mr Jordan argued that when one reads the third to last and penultimate paragraphs of the letter, it is clear that the Minister did not purport to give consent to DCM to apply for an exploration licence. He contended that, although the accused Maitland was invited to apply for a licence, the invitation was conditioned by the requirement that a supplementary submission be provided, thereby indicating that no actual consent was given in the letter of 21 August 2008 itself. He argued further that the reference to consent in the penultimate paragraph is prospective and relied on this matter as a powerful indication that no consent was actually given on 21 August 2008.

The Crown submitted that the Minister ought be taken to have granted consent for DCM to apply for an exploration licence by the third to last paragraph, where he invites to DCM to apply. The Crown contended that the reference to consent in the penultimate paragraph ought be read as a reference to consent to an exploration licence being granted at a future date, after the application for such a licence has been submitted and assessed.

I note for completeness that, in the course of oral argument, I raised the question whether the consent, if it be such, in the third to last paragraph, ought be construed as outright consent, followed by a request for information; or whether it ought be construed as conditional consent subject to a condition subsequent (provision of a “supplementary submission outlining in detail the industry and wider community support for such a proposal”). Mr Jordan did not adopt either construction and did not argue that, if it was the latter, the condition was void for uncertainty and could not be severed, thereby rendering the consent itself invalid. Although the matter was not advanced by any party, having raised the issue, I consider, without the benefit of argument, that the better view is that whatever consent that was given (as to which, see below) was not, in substance, conditional consent, although its wording suggested that it was. In effect, the words “subject to the provision of a supplementary submission outlining in detail the industry and wider community support for such a proposal” amount, in my view, to a request for further information pursuant to s 16 of the Act. I do not regard s 16 as limiting the Minister’s power to require further information prior to the grant of that for which the applicant has applied, which in this case was consent to apply for an exploration licence.

The basis for the accused Maitland’s application was, as set out above, that the letter did not amount to consent given by the accused Macdonald pursuant to s 13(4). As the indictment did not allege that the accused Macdonald purported to give his consent, but rather that he granted consent, the charge on the indictment is bad if no consent was, as a matter of law, given.

Where a statute does not impose formal requirements on the doing of an act under a particular provision, the question whether an act amounts to an exercise of the power depends, in part, on the statutory context and purpose of the provision. Section 13(4), in effect, imposes an additional requirement on applicants for certain exploration licences. Regard may be had to extrinsic material to discern statutory purpose, which is relevant to the construction of a statutory provision: s 34 of the Interpretation Act 1987 (NSW). I have considered the Explanatory Memorandum to the Act as well as the Second Reading Speech, neither of which provides assistance as to the purpose of requiring the Minister’s consent before an application for an exploration licence for a mineral within a mineral allocation area can be made.

Some guidance can, however, be obtained from the context in which s 13(4) appears. Section 13 is contained within Division 1: Applications and Tenders of Part 3: Exploration Licences. Sections 14 and 15, which are also within Division 1, contemplate a tender process in which applicants for consent are obliged to furnish information about their capacity (both technical and financial) to undertake prospecting and exploration. The wording of these sections tends to suggest that the Minister’s consent is required for exploration licences relating to particular areas because of the desirability of a preliminary assessment being made of such capacity before an exploration licence is granted. Although there is no statutory requirement for an application for consent under s 13(4) to address the matters made mandatory by s 15 when tenders are submitted in response to an invitation under s 14, such matters, as pertaining to the subject-matter, scope and purpose of the Act, would be relevant to a grant of consent under s 13(4): Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 40 per Mason J.

I was not referred to any judicial consideration of the requirement for consent imposed by s 13(4). It was briefly considered by the Full Federal Court (Allsop CJ, Mansfield and Middleton JJ) in Obeid v Australian Competition and Consumer Commission (2014) 226 FCR 471; [2014] FCAFC 155 at [14], [18] and [37] (which dealt with factual matters); and [6] (which dealt with the declaration relating to the minerals allocation area); and [17] where the Court said:

The procedure adopted by the Minister in the present case was to give consent pursuant to s 13(4) and to grant an exploration licence under s 22 subsequently. The availability of this procedure would seem to follow, from the circumstance that the tender process in ss 14 and 15 is not mandatory, that the Act authorises the grant of an exploration licence in respect of a minerals allocation area in this way.

Because the evident purpose of s 13(4) is merely to control whether a person can apply for an exploration licence, there is no particular form of words required. For this reason it does not appear to me to be of any particular moment that DCM was “invited” to apply for an exploration licence, as opposed to the Minister informing DCM that he had given his “consent” to such an application. Nor do I consider the reference to “consent” in the penultimate paragraph to be a reference to the consent under s 13(4) to apply for an exploration licence. In the context of the letter it appears to me to be tolerably clear that the word “consent” in the penultimate paragraph is a reference to consent, if given, to the exploration licence for which DCM has been invited to apply. For reasons set out above, I do not consider that the consent was a conditional one, although it was expressed in such terms.

Mr Jordan submitted that it was a pure question of law whether the letter of 21 August 2008 amounted to consent pursuant to s 13(4) of the Act. I reject this submission. In my view, the question whether the Minister gave consent to DCM to apply for an exploration licence gives rise to questions of both law and fact. The questions of law that arise are:

Whether the accused Macdonald actually gave his consent in that letter is, in my view, a question of fact for the jury to determine, if the legal questions (1) and (2) above have been answered in the affirmative.

In these circumstances, it is sufficient to find that the letter dated 21 August 2008 is capable of amounting to consent under s 13(4) to apply for an exploration licence as a matter of law. For reasons already given, I consider there to be sufficient evidence to establish that it amounted to consent. Whether the second element has been made out as a matter of fact to the requisite standard is, however, a matter for the jury as the tribunal of fact.

Accordingly, I decline Mr Jordan’s first application for a directed verdict.

Mr Jordan accepted, for the purposes of the second application that the evidence, in the Crown case, taken at its highest was capable of supporting the following:

However, Mr Jordan contended that these matters were insufficient to establish the Crown case as to the accused Maitland’s knowledge. He submitted that the Crown opened on friendship between the accused as being the relevant motive and that the Crown evidence, even taken at its highest, failed to establish such a relationship. Mr Jordan emphasised the following passage from the Crown’s opening, at tr. 33:

Further, he submitted that there was insufficient evidence that the accused Maitland knew, as opposed to merely suspected, that the accused Macdonald, when consenting to the application for an exploration licence, was substantially motivated to confer a benefit on him and DCM (element 4a.); and that he was not motivated to a significant degree by the object of furthering the interests of the State of New South Wales (element 4b.).

The Crown identified the evidence on which it relied in support of the accused Maitland’s knowledge of 4a. and 4b. of the elements set out above, in addition to the four matters extracted above from Mr Jordan’s written submissions.

The additional categories of evidence upon which the Crown relied (which, in some respects, overlap with Mr Jordan’s four categories) include:

The Crown also relied on the following additional passages from its opening of the case against the accused Maitland, at tr. 31:

The Crown submitted, in effect, that its case was based on the relationship between the two accused, which was one of mutual benefit.

The accused Maitland’s second application requires me to apply the test which was articulated by the High Court in May v O'Sullivan (1955) 92 CLR 654 at 658. The question is whether, at the time a no case submission is made, the accused could lawfully be convicted on the evidence as it stood at that time.

It has subsequently been made clear by the High Court, including in Doney v The Queen (1990) 171 CLR 207 at 214 that the question for me is not whether the quality of the evidence is such that any verdict of guilty in respect of counts 1 or 2 would be unreasonable, since that would be a matter for the Court of Criminal Appeal. As the High Court said at page 214:

Count 2 on the indictment against the accused Maitland relates to the granting of consent to apply for an exploration licence (Count 1 against the accused Macdonald) and count 4 on the indictment against the accused Maitland relates to the granting of the exploration licence (Count 3 against the accused Macdonald). As the accused Maitland has been charged with being an accessory before the fact, it is necessary for the Crown to prove, as against him, that the accused Macdonald is guilty of counts 1 and 3, as well as establishing that the accused Maitland knew of each of the matters underlying the elements of the charge against Macdonald (which are accepted to exclude 7): Giorgianni v The Queen (1985) 156 CLR 473 at 477-488 per Gibbs CJ.

This means that the Crown must prove that the accused Maitland knew that in granting such consent, the accused Macdonald was substantially motivated by the desire to confer a benefit on him and DCM; and was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales (elements 4a. and 4b. set out above).

In so far as Mr Jordan’s no case submission rests on the foundation that the evidence at its highest cannot support a finding that the accused were friends, this would appear to be largely irrelevant. The Crown is obliged only to prove the elements of the offence beyond reasonable doubt and not every fact for which it contends, or with which it opened the case. In any event, the additional extract from the transcript of the Crown’s opening set out above indicates that the Crown put its case on the footing that there was a relationship between the two which explained why the accused Maitland was getting the preferential treatment of being granted consent to apply for an exploration licence by direct allocation. The Crown evidence, taken at its highest, is capable of proving that the relationship between the two accused was such as to engender the possibility of mutual benefit by reason of their past and present roles and likely future circumstances of each of them.

However the relationship is described (whether that be in terms of friendship or potential mutual benefit) is not determinative. The jury is obliged to consider all of the evidence, including the evidence capable, when taken at its highest, of establishing the accused Maitland’s knowledge that:

I consider that, taking the evidence at its highest, it would be open to the jury to find that the accused Maitland had actual knowledge of elements 4a. and 4b.: namely that the accused Macdonald, when granting the licence, was substantially motivated to confer a benefit on him and DCM; and that he was not motivated to a significant degree by the object of furthering the interests of the State of New South Wales.

Mr Jordan accepted that, if I found a case to answer with respect to count 2, it would follow that there was a case to answer with respect to count 4. Accordingly it is not necessary to consider count 4 separately.

Mr Jordan submitted, in the alternative to the no case submission considered above, that the evidence against the accused Maitland is so lacking in weight that it could not support a reasonable verdict of guilty from a properly directed jury and that, accordingly, I ought advise the jury of its right to proceed to a verdict of acquittal before the conclusion of the trial: R v Prasad (1979) 23 SASR 161.

The Crown relied on what was said by Beech-Jones J in R v Dickson; R v Issakidis (No. 10) [2014] NSWSC 1482 and submitted that the present case is not an appropriate one for such a direction to be given because there were numerous documents contained in the evidence to which no reference had been made in the opening and which had not been referred to in oral evidence in the Crown case.

I accept the Crown’s submission. I respectfully adopt the analysis of Beech-Jones J at [6]-[7] since I consider the matters referred to by his Honour are applicable to the present case. His Honour said at [6]-[7]:

A Prasad direction may be appropriate in relatively simple cases where the evidence against the accused appears to be unreliable but there are dangers in using it when the Crown case is such that the jury may not fully understand it merely from the opening and the Crown evidence: Seymour v R [2006] NSWCCA 206 at [60]-[66] per Hunt AJA (Simpson and Rothman JJ agreeing). In Seymour v R, a jury acquitted a co-accused following a Prasad direction, but convicted the accused, in respect of whom a Prasad direction had also been given. It was argued on appeal that the jury’s verdicts were inconsistent. The effect, and dangers, of the Prasad direction appear from [65]-[66] per Hunt AJA:

In the present case, the evidence is complex and detailed. The Crown case is a circumstantial one which depends on an assessment of the evidence as a whole. The jury has not been taken to all of the documentary evidence and can be taken not to have read it in its entirety or appreciated its significance to the Crown case. The issue of the accused Maitland’s knowledge of the accused Macdonald’s state of mind (particularly elements 4a. and 4b.) will require detailed consideration in the Crown address. It is not appropriate for me to undertake this task in the course of any Prasad direction. Indeed, for the reasons given by Hunt AJA in Seymour, any requirement to do so would negate the whole purpose of the procedure contemplated by the Prasad direction. In these circumstances a Prasad direction would be inappropriate.

For the foregoing reasons I refuse the applications for direct verdicts of acquittal and refuse the application for a Prasad direction.