R v Obeid (No 3)

On 22 September 2015 I published reasons for overruling a demurrer raised by the accused, Edward Moses Obeid, to an amended indictment and otherwise dismissed a notice of motion filed by him seeking to quash the indictment or stay the proceedings in respect of it (R v Obeid (No 2) [2015] NSWSC 1380 “Obeid (No 2)”).

On 25 September 2015 senior counsel for Mr Obeid, Mr Reynolds SC, made an application that I certify, pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912, that the orders made on 22 September 2015 are proper ones for determination on appeal. Mr Reynolds SC contended that three of the matters determined by Obeid (No 2) were of a jurisdictional or quasi-jurisdictional nature such as to warrant certification, namely, whether a member of the legislative council (an “MLC”) is a “public officer” for the purposes of the offence of wilful misconduct in public office, whether the prosecution of Mr Obeid infringed s 9 of the Bill of Rights in its application in New South Wales and whether this court's jurisdiction to try him was excluded because the subject matter of prosecution was within the exclusive cognisance of the Legislative Council.

He also submitted that other aspects of the matters addressed by Obeid (No 2) were appropriate for review by the Court of Criminal Appeal, principally the analysis of the duty owed by an MLC set out in Obeid (No 2) at [74] to [75] and an asserted divergence between the approach taken in the formulation of one element of the offence by the courts of the United Kingdom as opposed to the Courts of this country (see Obeid (No 2) at [88] to [98]).

Today, 28 September 2015, the Crown Prosecutor opposed the application for certification on a number of bases, including the contention that appeals on questions of law are not within the scope of s 5F. That may be so, however where there is an order that can ground the subject of an appeal then it appears that certification can be given. There certainly appear to be sufficient orders that were made as a consequence of the judgment in Obeid (No 2) to ground an appeal under s 5F.

The proper approach to a judge at first instance who is asked to certify a matter under 5F(3)(b) was stated by Basten JA in Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17, 71 NSWLR 96 at [5] to [9]. Relevantly at [9] Basten JA stated:

The necessity for caution in certifying under s 5F(3)(b) was explained by his Honour in Pellegrino in [6], namely that certification results in the Court of Criminal Appeal losing “the opportunity to consider whether a grant of leave would be appropriate, which function provides an important control over the exercise of appellate jurisdiction in relation to interlocutory judgments or orders”.

This is not a case where there is a lack of opposition on the part of the Crown to certification. Further, contrary to Mr Reynolds SC’s submissions, I do not consider that this is a matter in which I have any “particular insight into the proceedings which may not readily be shared” by the Court of Criminal Appeal. To the extent that I have any “insight” it is expressed in Obeid (No 2) and as such can be shared with the Court of Criminal Appeal.

There remains the consideration of whether the appropriateness of an interlocutory appeal is not in doubt. It can be said that there are matters of potential significance raised by any appeal from Obeid (No 2), including matters of at least a quasi-jurisdictional nature, although I do not accept that whether the court has jurisdiction compared to that of parliament is really in as much doubt as was contended. Nevertheless, notwithstanding the issues raised, I am not satisfied that the appropriateness of an interlocutory appeal is beyond doubt. Otherwise, I note that, with the application of sufficient energy, Mr Obeid should have sufficient time to at least bring the matters the subject of his application to the attention of the Court of Criminal Appeal in the time before his trial commences.

Accordingly, I decline to certify the orders made on 22 September 2015 under s 5F(3)(b) of the Criminal Appeal Act 1912.