Macdonald, Ian v R; Edward Obeid v R; Moses Obeid v R

THE COURT: Following a series of interlocutory rulings in 2019, the appellants, Ian Michael Macdonald, Edward Moses Obeid and Moses Edward Obeid, stood trial before Fullerton J on a single count of conspiring together that Mr Macdonald would wilfully misconduct himself in public office, namely as Minister for Mineral Resources. (The precise terms of the charge will be considered shortly.) The trial, commencing in February 2020, proceeded over 77 days before the judge sitting without a jury, with final submissions in February 2021.

On 19 July 2021, the judge delivered her verdict and reasons, finding each of the appellants guilty. [1] In a further judgment delivered on 21 October 2021, Fullerton J sentenced each of the appellants to a term of imprisonment.

Each appellant has filed a notice of appeal in relation to his conviction; Mr Macdonald, who was sentenced to imprisonment for nine years and six months, with a non-parole period of five years and three months, has sought leave to appeal the severity of his sentence. At the time of the hearing of the appeal, each of the appellants remained in custody serving a non-parole period which had commenced on the date of sentencing.

The nature of the conspiracy was unusual in that it alleged an agreement between the three persons charged that one person, namely Mr Macdonald, should conduct himself in a manner which constituted the underlying offence (described in submissions as the predicate offence) of wilfully misconducting himself in public office. Members of the Obeid family were said to be the beneficiaries of Mr Macdonald’s misconduct. The prosecutor did not particularise any acts of either Edward Obeid (Mr Obeid Snr) or Mr Moses Obeid in furtherance of the conspiracy.

The factual circumstances of the matter were complex, as were the grounds of appeal. Many grounds were common to all three appellants, but some had additional grounds. It will be convenient to deal with the facts as necessary to engage with the particular grounds of appeal and submissions. The grounds may conveniently be divided into three categories, namely:

Grounds not involving a question of law alone require leave pursuant to s 5(1) of the Criminal Appeal Act, as does Mr Macdonald’s appeal against sentence. As many grounds satisfy the requirement for an appeal as of right (including category (a) grounds), and as others (though not all) are reasonably arguable, it is convenient to grant leave so far as necessary to cover all grounds. (Hereafter the applicants will be referred to as appellants.)

With respect to the challenges to the judge’s fact finding in category (b), it will be necessary to identify the nature of the exercise based on the first limb of s 6(1) of the Criminal Appeal Act, and, in particular, the relationship between those generic challenges and challenges to specific findings of fact which require that a miscarriage of justice be demonstrated under the third limb of s 6(1).

In addition to the complexity of the evidence there is complexity in the reasons. The judgment was lengthy (comprising over 670 pages and 2,047 paragraphs) and precise in its references to transcript and documentary material (there were over 2,000 footnotes). [2] Although to a large extent the prosecution case was circumstantial, the judge adopted a highly structured and step by step process in reaching her conclusions. She was meticulous in stating the extent to which a particular finding was probative of an element of the offence or an intermediate fact. While it will be necessary to summarise the judge’s reasoning, it must be understood that the strength or otherwise of ultimate findings depended upon the cumulative effect of earlier findings.

It is convenient to start with the terms of the indictment and the nature of the offence.

There were two critical factors which underlay the prosecution of the appellants. The first was that on 27 September 2007 a company associated with the Obeid family, Locaway Pty Ltd, entered into a contract to purchase a property known as Cherrydale Park to the west of Mount Penny at Bylong, which is north of the Hunter Valley. Locaway was a trustee for the Moona Plains Family Trust, the beneficiaries of which were members of the Obeid family. The directors of Locaway were Paul Obeid and Damian Obeid, sons of Mr Obeid Snr. Settlement occurred on 15 November 2007. The location of Cherrydale Park may be seen on the map which is annexure A to these reasons.

The second material fact is that the Department of Mineral Resources had identified a coal seam which followed the general direction of the Bylong Valley, between the towns of Bylong in the east and Wollar in the west. The coal area is also marked on the map which is annexure A to these reasons. The area was described as being in the shape of a sideways S with the eastern (north-south) section lying under three properties of which the most southerly was Cherrydale Park. Directly to the north of Cherrydale Park was a second property, Donola, and to the north of that a third property, Coggan Creek. A short distance to the east of Donola was the Mount Penny trig point, which gave the area its name, variously described as north Bylong-Mount Penny and the Mount Penny area.

At the time the Obeid family purchased Cherrydale Park it was used as fertile grazing land and had an attractive house and surrounding gardens. At that time, an area which included the three properties was the subject of an exploration licence (EL) granted under the Mining Act 1992 (NSW) known as EL6676, which was held by the Department of Primary Industries. There was, in late 2007, no intention on the part of the Department to release the area for private exploration because the extent and value of the coal resource had not been assessed. In broad terms, the charge was directed to steps taken by Mr Macdonald as Minister for Mineral Resources to release the area for exploration, with potential benefits for the Obeid family through their ownership of Cherrydale Park.

The trial proceeded on an indictment dated 11 February 2020 by which the Director of Public Prosecutions charged the appellants that:

The prosecution did not provide a statement of the acts which it was agreed Mr Macdonald would undertake: rather, it relied on establishing an agreement to undertake acts falling within the cumulative elements of the charge. (The primary legal challenge to the convictions on the appeal was directed to the alleged inadequacy of that course.) The prosecutor did, however, provide particulars, which were revised during the trial, of the acts said to have been undertaken by Mr Macdonald pursuant to, and in furtherance of, the agreement reached with Mr Obeid Snr and Mr Moses Obeid. The case ultimately addressed in closing submissions was particularised in a document dated 30 October 2020 and identified eight acts of misconduct alleged to have been committed by Mr Macdonald. As will be seen, the first act of misconduct was said to have occurred on or about 9 May 2008. For that to have occurred pursuant to and in furtherance of the agreement charged, that agreement must have been in place by 9 May 2008. The prosecution case proceeded on that basis.

The revised statement of particulars omitted what had been the third act of misconduct originally relied upon. The remaining particulars were not renumbered, and were as follows:

The manner in which the prosecutor deployed the particulars was described by the trial judge in the following terms:

As will be explained in detail below, the judge found that the first and second acts of misconduct were established, but that, taken alone, they did not provide a sufficient basis for her to be satisfied beyond reasonable doubt as to the existence of the conspiracy. The judge further found that the fourth, seventh and eighth acts of misconduct were established. She was not satisfied that the fifth, sixth and ninth acts were established in the terms in which they were pleaded, although she was satisfied as to aspects of each.

It may be noted that the indictment charged that Mr Macdonald misconducted himself in public office in breach of his duties and obligations of “impartiality” and “confidentiality” as a minister. Each of the acts of misconduct, other than the first, second and fifth, alleged a breach of both duties: the first, second and fifth alleged a breach only of his duty of impartiality.

The judge then summarised the manner in which the case was presented based on the particulars:

The structure of the cases run by the appellants on appeal was, as reflected in the written submissions, that Mr Moses Obeid presented the primary arguments on the five common grounds, with some supplementation by the other appellants, who also had separate grounds for which they took primary responsibility. Ground 1 in each notice of appeal was as follows:

The ground itself was uninstructive as to the nature of the challenge. However, the written submissions identified six separate bases of challenge in the following terms:

The gravamen of the challenge under this sub-ground was threefold. First, the charge was said to be formulated at too high a level of generality to constitute a conspiracy at law. What was required was an agreement to do a particular act or acts. Secondly, an agreement that one conspirator would commit an offence, namely misconduct in public office, did not cure the problem: no particular act (or acts) was (or were) identified by the use of the phrase. Thirdly, where no particular act had been identified at the date of the agreement, it could not be said that there was a concluded agreement, as opposed to a common intention, expectation or discussion of possibilities. [4]

The principle that the formulation of an intention, albeit common between two persons, or the expectation of two persons that a particular course will be followed, or discussion of the possibility of taking a particular course will not, singularly or in combination, constitute an unlawful conspiracy. So much must be accepted; in the words of McHugh J in Peters v The Queen, [5] “there can be no conspiratorial agreement unless the accused and his or her co-conspirators also intend that the common design should be carried out”. However, it is also true, as was accepted by the appellants, that an agreement to do an unlawful act or to do a lawful act by unlawful means, constitutes the actus reus of the conspiracy, although no overt acts have been undertaken at that time. [6] (Because the crime is one of agreement, the distinction between the mental element and the physical act is fraught, if not meaningless. [7] ) It is also common ground that a conspiracy, for example, to defraud an insurance company, may be complete although the precise means or method by which the conspiracy is to be effected is not known, nor agreed upon. [8]

Statements of principle in different language may be found in different cases, often determined by the particular facts under consideration and the nature of the substantive offence, the subject of the conspiracy. Further, there is no bright line to be drawn between an agreement to carry out unlawful acts or an unlawful purpose where the means or method by which the purpose will be carried out has not been identified, on the one hand, and an inchoate agreement on the other.

As the respondent submitted, the appellants failed adequately to address the terms of the indictment which did not leave the nature of the unlawful conduct at large, but identified it in a series of descriptive phrases. First, par (a) in the indictment described the acts in question as being undertaken “in connection with the granting of an exploration licence at Mount Penny”. That consideration limited the scope of the particular acts by reference to a power of the Minister conferred by the Mining Act. There was an element of uncertainty as to the precise acts which would be required, but they would fall within the class reflected in the process required to be carried out for the granting of an exploration licence, which will be outlined below. The charge did not require that the actual acts in connection with granting the exploration licence were unlawful in the sense of not complying with the requirements of the Mining Act, other than the implied requirement of being done for a proper purpose.

Secondly, and cumulatively, pursuant to par (b) the acts were to be done “concerning the interests of [the Obeid family]”. The “interests” may be understood as matters of benefit to the Obeid family. That element required that steps taken towards the granting of an exploration licence must be undertaken in a manner and with the intention of benefiting the Obeid family. There was no expectation or intention that the Obeids would obtain an exploration licence; rather, the prosecution case was that steps would be taken by the Minister to release the Mount Penny area for exploration and to ensure that the Obeids were involved in the process so as to allow them to benefit from the opportunity to negotiate with the successful grantee. It may be noted that there was no initial proposal from the Department to release the Mount Penny area: the departmental view was that further assessment needed to be done to establish the prospects of financially viable recovery of coal from the area.

Thirdly, in taking those steps, the Minister, it was agreed, would knowingly act in breach of his obligations of impartiality and/or confidentiality. That constituted the mental element of the predicate offence.

The effect of the three descriptive limbs of the acts which were agreed to be done, understood in the context of the Obeids’ ownership of land in a particular area and the possibility of an exploration licence being granted over or in relation to that land, involved a degree of particularity in relation to the nature of the acts the subject of the charge.

It is important to note, however, as senior counsel for Mr Moses Obeid (Mr Walker SC) submitted, that there is an important distinction to be drawn between the acts which would constitute the element of the substantive offence of misfeasance in public office and the particular acts of misconduct which, it was said by the prosecutor, demonstrated the existence of the conspiracy. While the distinction is important, the function served by the particulars of misconduct may engage both limbs, although the primary function is the second (evidential) limb. The particulars may also be seen as illustrating the class of acts which, although not agreed upon in advance, could fall within the class which must have been in contemplation, albeit at a higher level of generality.

In the course of submissions, various examples were explored to illustrate what might be essential for a properly pleaded conspiracy. That required discriminating between the “acts” which must be agreed upon, and the “method” by which those acts might be carried out, which did not need to be foreseen and agreed upon in advance. Simple examples were referred to, such as a conspiracy to rob a bank and illegal entry of premises. However, while simplification may be a valuable aspect of illustration, it carries an inherent risk of distortion. Thus, the examples of bank robbery and illegal entry of premises each involves a singular act. By contrast, the offence of misfeasance in public office may, but does not necessarily, involve a single act. Rather, it may involve a process carried out over some months, as occurred in the present case. As has been stated, this was not a case in which the underlying misconduct was the issue of an exploration licence to one company, on the basis of an expression of interest formulated with knowledge, improperly obtained, of the content of the offers of other appellants.

Further, the examples of simple conspiracies involved underlying offences with well understood elements. That contextual element was missing in relation to the activities the subject of the present charge. Little attention was given in the appellants’ submissions to the process and activities required for the issue of an exploration licence, which might involve multiple steps taken “in connection with” the grant of such a licence. At least a brief explanation of that process is necessary.

This exercise was undertaken by the trial judge in some detail. [9] The judge noted that the power to grant an exploration licence was conferred on the Minister for Mineral Resources by s 22 of the Mining Act. A skeleton of statutory requirements was set out in the Mining Act, with minor procedural matters found in Pt 3, Div 1 of the Mining Regulation 2003 (NSW). [10] The source of the requirements for ELs in Pt 3, Div 1 of the Mining Act included the following provisions: [11]

The prosecutor lead evidence of the processes within the Department at the relevant time from the Deputy Director-General Mineral Resources, Alan Coutts, and the Director of Coal and Petroleum Development, Brad Mullard.

Mr Mullard gave evidence that prior to the publication in the Gazette in December 2007 of an order of the Governor designating the whole State as a “mineral allocation area”, specific areas had been designated as “mineral allocation areas” for coal. [12] The purpose of the change was to ensure the orderly development of coal resources, which was not possible when an application for an exploration licence could be made for an area outside the mineral allocation areas. The result had been the speculative land-banking of areas with unknown potential by large miners. [13]

The trial judge identified the process for seeking an exploration licence in the following terms:

The judge then dealt with each of the steps set out in [694] separately. It is convenient to set out the judge’s summary of the evidence, although it is lengthy and detailed. [14]

The judge also summarised the history of the assessment of coal resources in the Bylong Valley, which had been the subject of two studies undertaken by the Department. The second (later) study, known as the “Dwyer report”, prepared in 2005, recommended that further exploration programs were required to assess the coal resources in the region. [15] What followed was the grant to the DPI of EL 6676 on 21 November 2006. The purpose was to allow the Department to undertake exploration activities to assist in determining whether the area could be released to public tender. As the judge noted, Mr Mullard gave evidence that, as of May 2008, there had been little by way of a drilling program in EL 6676. [16]

In a passage preceding the detailed discussion of the process, the judge concluded that there was a relevant connection between the steps taken prior to the EOI process and the process itself which demonstrated a relevant connection between those steps and the ultimate grant of the Mount Penny EL. [17]

The contextual material as to the process by which steps were taken to release land for expressions of interest, assess those expressions and finally grant an EL (if thought appropriate) provided a firm basis for concluding that the activities the subject of the pleaded agreement were sufficiently described to allow the parties to understand what was in contemplation. If it were assumed that each of the elements of the charge was established on the evidence, and it was established that those steps were taken for the pleaded purpose of benefiting the Obeid family interests, and putting to one side the other issues raised by the appellants, the charge would not be invalid on the basis that it did not identify with sufficient precision the nature of the conduct, the subject of the agreement between the parties. Accordingly, the challenge to the validity of the indictment based on the first element in ground 1 should be rejected.

The second element of the challenge in common ground 1 was that only one person to the agreement was expected to do anything, namely Mr Macdonald. The written submissions for Mr Moses Obeid succinctly stated the issue in the following terms: [18]

At one level, this statement appeared to deny its own premise, namely that this was not a form of agreement which required consideration in the contractual sense. From a practical perspective, the proposition might mean no more than that Mr Macdonald was unlikely to act in a way which rendered him liable to criminal prosecution if he were to obtain no benefit from it. However, as a matter of principle it is unclear why there can be no conspiracy in which one, or indeed more than one of the conspirators, take no unlawful step except to be the recipients of favours for which they have not agreed to provide any benefit in return.

Further, it was not the case that the Obeids were not expected to take any step or do any act. The clear expectation was that they would coordinate with Mr Macdonald to take steps to obtain a benefit from the grant of the exploration licence, together with full knowledge of the process by which the grant would be achieved (as in fact happened). Whether or not those steps constituted criminal conduct was not the issue. If, for example, the act of a conspirator was to receive stolen money, he or she would commit the offence of dealing with the proceeds of crime. Whether such an offence would arise with respect to non-pecuniary benefits need not be addressed. Further, it was no part of the conspiracy, the subject of the charge, that Mr Macdonald obtained a benefit for his part in the arrangements. As will be seen in relation to issues considered below, there was evidence that the Obeids considered it either necessary or appropriate to distance themselves from the grant of the exploration licence by seeking to undertake dealings with the successful grantee through a corporate structure which did not readily reveal their involvement.

Again, apparently as a pragmatic consideration, Mr Moses Obeid drew attention to what he described as a difficulty the trial judge had in identifying any level of moral culpability on his part when it came to imposing a sentence. That matter can be put to one side. The sentence itself (which is not challenged) involved a significant period of imprisonment. The description of Mr Obeid’s moral culpability may or may not be satisfactory; it does not, however, demonstrate that a conspiracy in which the recipient of favours is not actively involved in the substantive offending through his own unlawful conduct cannot be a valid charge of conspiracy.

The substantive argument in support of this ground relied upon statements in cases of high authority, which undoubtedly articulate the elements of a conspiracy as involving agreement for unlawful acts by more than one person, and perhaps all conspirators. The question is, in this circumstance, whether those descriptions were intended as identifying an essential element of all conspiracies, or whether they were descriptive of the circumstances of the case before the court.

First, it should be acknowledged that the following passage in the third appellant’s written submissions is a correct statement of the law.

None of those statements, however, addresses the present issue. For that purpose, the appellants relied upon the following passage in the reasons of French CJ in The Queen v LK: [19]

The thrust of the principle which French CJ was considering, and which was articulated in Mulcahy v The Queen [20] , was that it was “not sufficient that the accused had intended to agree to commit the offence” but he “had to have intended to put the common design, the commission of the offence, into effect”. [21] By contrast, the suggestion in Mulcahy that the agreement involved consideration, “capable of being enforced, if lawful”, was expressly (and correctly) disavowed by the appellants. Otherwise, there is no authority for the proposition that each party to the conspiracy must agree to be responsible for some unlawful overt act in carrying out the agreement.

No passage in the joint reasons of the other members of the Court in LK (Gummow, Hayne, Crennan, Kiefel and Bell JJ) is relied upon in support of the principle espoused by the appellants.

French CJ in LK noted that the statement from Mulcahy had been approved in earlier decisions of the High Court. (It has also been criticised.) The first was a reference to The King v Kidman, [22] but that was only for the proposition that “the agreement to do an act itself is, in itself, an overt act in advancement of the intention to do the ultimate act agreed upon”, a matter which does not support the appellants’ contention. The second was a reference to The King v Boston, [23] but there the proposition was limited to the first limb of the statement in Mulcahy, namely that “[a] conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means”.

The third authority was The Queen v Rogerson. [24] It is true that Brennan and Toohey JJ (at p 281) quoted the whole of the extract from Mulcahy referred to by French CJ in LK, but they did so for a limited purpose. Thus, in introducing the extract, Brennan and Toohey JJ stated:

Following the quote, which was set out to explain that proposition, the joint reasons continued: [25]

It should be added that no issue arose in Rogerson as to the acts done in furtherance of the conspiracy to pervert the course of justice. All the co-conspirators were involved in acts in the course of carrying out the conspiracy. However, the purpose of the conspiracy was to benefit then Detective Sergeant Rogerson who had been found with a known criminal closing a bank account and removing a large amount of money. The purpose of the conspiracy was to manufacture evidence that the money was legitimately obtained by Mr Rogerson by the sale of a car. The steps taken by two of the conspirators, Paltos and Karp, involving evidence of a sale by Rogerson and Nowytarger of a Bentley car to Karp, were not shown to have benefited either Mr Karp or Mr Paltos. The question in the High Court was whether there was sufficient evidence to support a finding that each of the respondents had the intent that, by producing the contract of sale to support a false story, police would be deflected from instituting a prosecution for an offence, the specific offence not being identified. [26] The offence was ultimately identified as possession of unlawfully obtained money resulting from the sale of drugs. There was nothing in the case concerned with the liability of a person who had taken no step in the course of the conspiracy, nor was to take any step pursuant to the conspiracy. [27]

It is not necessary to determine whether Mr Macdonald would obtain some benefit from the carrying out of the unlawful acts. A conspiracy does not cease to be one in circumstances where one party acts out of friendship for another, or in the belief that he will benefit from such conduct, whether the belief is reasonable or misguided. However, in the present case the evidence supported an inference that Mr Obeid Snr was an influential member of a faction within the governing Labor party. Mr Macdonald was not a member of that faction but was a member of another faction with less power within the government and therefore might well have thought it valuable to provide a favour to a powerful powerbroker. However, to repeat the dispositive response, the validity of a charge of conspiracy does not depend upon the motives, good, bad or misguided, of one of the conspirators.

The second element of common ground 1 should be rejected.

The third element of ground 1 was encapsulated in the following written submission: [28]

The basic submission was that “[i]t is a necessary component of the concept of ‘wilful misconduct’ that Macdonald would not have exercised the power but for the illegitimate purpose”. [29] The only authority for that proposition was a reference to Maitland v R; Macdonald v R [30] (“Maitland”). Maitland did not involve a charge of conspiracy but a charge of the underlying offence in the present conspiracy, namely wilful misconduct in public office. The facts involved the grant of an exploration licence by the Minister to a company known as Doyles Creek Mining Pty Ltd with the intention of benefitting Mr Maitland, a chairman and a shareholder of the company. The Court concluded that the rationale for the offence was “to prevent public officers (in the case of misfeasance) from exercising their power in a corrupt and partial manner”. [31] From that it was inferred:

The precise terms of the complaint are of some importance. The appellants said that the prosecutor had accepted that she must establish that Mr Macdonald would not have committed the acts of misconduct but for an improper purpose, but they alleged a further requirement, namely that the conspirators agree that he would not have done the acts but for the improper purpose. In the alternative, the appellants submitted that the trial judge had misdirected herself as to this element of the offence.

Before addressing the submissions with respect to this ground, it is necessary to turn to the key statements as to the elements of the underlying offence, namely wilful misconduct (or misfeasance) in public office. When that is done, it will be seen that nowhere in the conventional statements of the law is there reference to an element of the offence expressed in the language of causation. The adoption of that language becomes bizarre when applied to the offence of conspiracy, where the underlying offence need not be committed and yet the unlawful agreement contains an inbuilt element of a causal relationship. On one view it may, but not in the sense relied on by the appellants.

In HKSAR v Hui Rafael Junior [32] the Hong Kong Court of Final Appeal stated:

A number of propositions (discussed in the following paragraphs in Hui) follow from these defined elements. First, the nature of the conduct which will constitute misconduct “defies precise definition because of the range of conduct that it is designed to cover”. [34] Secondly, the conduct must have a necessary link to official powers, duties or responsibilities, but need not be an exercise of the powers of the office. The Hong Kong Court of Final Appeal continued:

In Hui, the payments were made in advance of the officer obtaining a senior public office, and were not made for any more precisely defined purpose, nor having in contemplation any specific act or omission, “but in order to secure an improper inclination and that, in return for the payments, [the officer] agreed to be or remain favourably disposed, in office, to commercial interests associated with the other appellants”. [40] The conviction based on such conduct was upheld.

It is difficult to see any scope for a “but for” test of causation in such circumstances. It is the creation of a conflict between self-interest and public duty that constitutes the element of misconduct. In Obeid v R (2015) [41] , the self-interest was not created by a payment from a third party, but a family interest in tenants of business premises at Circular Quay of which the landlord was a government body corporate. Representations were made by an agent of Mr Obeid Snr, at his instigation, as to the proper payments from licensees to be made to the tenants. These constituted misconduct by him as a Member of the Legislative Council.

Further, in circumstances where the misconduct turns on a perceived conflict between private interest and public duty, the relevance of a causative element has been expressly denied. In Boston, Isaacs and Rich JJ stated: [42]

In Maitland the “but for” test was derived from two English authorities, the earlier being R v Llewellyn-Jones [43] , the later being R v Speechley [44] . There are, indeed, a number of respects in which English law in this area departs from Australian law. [45] Further, it is unclear on what basis the test of validity of a resolution of the board of a company, or of an administrative law challenge to the validity of an administrative decision, also relied on in Maitland, find their way into the elements of the criminal offence.

The “administrative law” cases relied on in Maitland involved local government acquisitions for purposes found to be beyond power. Neither involved a deliberate breach of a duty of confidentiality, nor a breach of a duty of impartiality. To release confidential information in circumstances where you know you should not release it cannot usefully engage a test of “causation”. In the case of partiality, both statute and common law principles dictate a different approach. The relevant administrative law principles are those in relation to bias, which encompasses both prejudgment and partiality based upon an interest or association. Both actual bias and a reasonable apprehension of bias disqualify a decision-maker and, if a decision has been made, invalidate the decision. In a statement of principle adopted by Gummow J in IW v City of Perth: [46]

Public confidence in public administration justifies such a principle, which cannot be diminished by asking whether the decision-maker would have made the same decision absent the appearance of bias.

It was not submitted in the present case that Maitland was clearly wrong and should not be followed and it is not necessary to advert further to the reasoning in that decision. As the respondent submitted, the causation test appears to have no ready operation in relation to a conspiracy which is constituted by an agreement, not by the wilful misconduct the subject of the agreement. And if the prosecution establishes beyond reasonable doubt that the parties agreed that one will wilfully misconduct himself in public office, that is sufficient to satisfy the charge in the indictment.

It was telling that Mr Macdonald submitted: [47]

Three points flow from this proposition. First, given the lengthy history of the criminal liability for misconduct in public office, [48] and the lengthy history of the common law offence of conspiracy, a return to first principles might have suggested that the “but for” test was an aberration. As noted above, Maitland did not involve a conspiracy. Secondly, the following discussion did not explain the role of a “but for” causation test in circumstances where the substantive offence was one of wilful misconduct and the agreement had to extend to the element of wilful misconduct. Thirdly, as noted by the respondent, the trial judge expressly stated that the “but for” test “needs to be satisfied in this case by the Crown proving that each of the accused knew, appreciated, and intended that Mr Macdonald would not have agreed to act in connection with the granting of an EL at Mount Penny favouring their private interests ‘but for’ that improper or illegitimate purpose”. [49] Thus, if the judge applied that understanding of the agreement the complaint fell away.

The third limb of common ground 1 must be rejected.

According to Mr Moses Obeid’s written submissions, the argument in respect of this element of ground 1 had two aspects, the first of which was: [50]

The second aspect was, “that even if there could be a meeting of … minds as to an unlawful act alleged by that phrase, the case fails because the Crown did not allege that Ian Macdonald agreed to do any specific act”. This second aspect is in substance a repetition of the first element of ground 1, namely the failure to allege a specific unlawful act to be undertaken pursuant to the agreement. It is not necessary to repeat the reasons for rejecting that complaint.

The first aspect apparently involves the same element, being the need for an agreement to commit “an unlawful act”, alleging that criterion (a) was impermissibly vague for the purpose of identifying such an act.

The selective dissection of the charge is not apt to identify error. For the reasons already indicated, the limbs in paragraphs (a), (b) and (c) of the indictment, together with the chapeau and the final (fifth) element are to be read together. It is undoubtedly necessary that the alleged misconduct be related to some aspect of Mr Macdonald’s public office. As has already been noted, the aspect in question was the specific power to grant exploration licences with respect to identified areas and specified mineral resources. The geographical reference to Mount Penny did not identify an area by metes and bounds, but was not required to do so. In the context of the disposition of exploration licences with respect to coal resources, the area was sufficiently defined. The use of the phrase “in connection with” was deliberate, in circumstances where there was no question of the exploration licence being granted to interests associated with either Mr Obeid Snr, Mr Moses Obeid, or other members of the Obeid family. As was stated in Obeid v R (2015) after referring to the elements of the offence of misconduct in public office identified by the Victorian Court of Appeal in Quach: [51]

Numerous other challenges were rejected in Obeid v R (2015), the Court concluding:

There was no substance to the separate challenge identified as a fourth element in ground 1.

This element of ground 1 did not deny the need for or the pleading of what has been identified as the fifth element of the offence of wilful misconduct. Rather it turned on the proposition that the fifth element was a matter for agreement between the parties in the case of a conspiracy. The respondent contended that the appellants’ submissions were entirely correct in stating that a person charged with the conspiracy must have “actual knowledge of all the essential facts necessary to constitute the commission of the offence”. The respondent continued: [52]

With respect, that submission should be accepted. It is consistent with the explanation for the additional requirement (the fifth element) adopted by Mason NPJ in Shum Kwok Sher v HKSAR. [53] That approach is also consistent with Boston, where Knox CJ stated: [54]

In Rogerson, Brennan and Toohey JJ reasoned to similar effect: [55]

It was also consistent with the statement of the common law by the Gibbs Committee Report, [56] set out with apparent approval in the joint reasons in The Queen v LK at [105]:

That being so, as it was not necessary for Mr Macdonald to believe that his conduct should be characterised at a particular level of moral culpability, nor was it necessary that the conspirators agree that he should conduct himself in a manner which would be characterised as involving that level of moral culpability. To repeat the principles stated earlier, the offence of conspiracy requires a common intention as to the states of mind and proposed acts of those involved in the conspiracy; it does not require agreement as to matters of law. Indeed, were it otherwise, those with no sense of moral culpability would escape conviction and those with a higher level of sensitivity to such matters could be convicted.

The sixth element of common ground 1 differed from the earlier elements in that it did not allege that the indictment did not disclose an offence known to law. Rather, it focused on the aspect of the pleading in par (c) of the description of the acts, namely that Mr Macdonald would act knowingly in breach of his duties and obligations of “impartiality … and/or … confidentiality”. The appellants submitted that the alternative form of the pleading allowed that there might only be a breach of a duty of confidentiality and that, in the circumstances of the case, no breach of a duty of confidentiality was established. Extensive written submissions analysed the various aspects of Mr Macdonald’s conduct disclosed either in the particulars of misconduct or in the evidence in order to demonstrate that none involved a breach of the duty of confidentiality.

As the respondent submitted, this was not really a pleading point. As a matter of pleading, it was sufficient if the acts involved a breach of either duty as either could constitute wilful misconduct.

This was not a case of duplicity, nor was it submitted by the appellants to be such. It was, in the language used by Bray CJ in Romeyko v Samuels, [57] not a pleading of separate acts, but rather one act possessing one or more forbidden characteristics. In the latter case “there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics”. [58]

Three of the particulars of misconduct (1, 2 and 5) alleged only a breach of the duty of impartiality; each of the others alleged a breach of both duties but would have been satisfied if either were established. It follows that there is no need in this context to address the factual circumstances of the various acts of misconduct alleged in order to determine whether there was a breach of a duty of confidentiality. The charge was formulated in permissible terms.

As presented in the written submissions and in oral argument, the problem could be illustrated by an analogy. The analogy had apparently been used at the trial, though it was deployed in a more precise form on appeal. [59] The analogy asserted that there could be no conspiracy to commit a robbery with a dangerous weapon, where “dangerous weapon” was defined to include a firearm, but not a knife, if the parties agreed that the robbery would be committed with either a gun or a knife. [60]

On that approach, the indictment could be satisfied by establishing only breach of a duty of confidentiality. That duty was equated to the use of a knife (as the dangerous weapon in the analogy), not because there was no duty of confidentiality, but because none of the information supplied or shared by Mr Macdonald was “capable of being found to be in breach of any duty of confidentiality”. [61] The assertion that the evidence presented at the trial was not capable of constituting confidential information was then explored over some 75 pages of written submissions: it was not elaborated upon orally. [62] The heavy burden of submitting that the material lacked the capacity to be confidential derived from the formulation of this submission in the context of ground 1. As senior counsel for Mr Moses Obeid submitted early in his oral argument: [63]

The submission may, however, be disposed of succinctly. First, there was no challenge to the reasoning of the trial judge with respect to the formulation of the duty. Secondly, there was significant evidence supporting a factual finding that the information which Mr Macdonald shared with members of the Obeid family was indeed confidential.

Before turning to that material, it should be noted that the bright line sought to be drawn between partiality and disclosure of confidential information involved no clear dichotomy. Partiality refers to the conferring of a favour or benefit on one person for improper reasons. However, what is provided or conferred may not necessarily be money or an available asset, but an opportunity to obtain money or an asset. In that case, the conferral of the opportunity may occur by the provision of information not generally available to others who might have an interest in seeking the benefit. In that situation, which applied to this case, the duties of impartiality and maintaining confidentiality in certain information are closely related and, indeed, interdependent.

The trial judge dealt with the duties of confidentiality and impartiality of the Minister over an extended passage of more than 100 paragraphs. [64] This material need not be revisited, as there was no challenge to the finding that the Minister did indeed owe duties of impartiality and confidentiality. These duties were reflected in broad terms in the Ministerial Code of Conduct and elaborated upon by evidence given by former Premier, Mr Morris Iemma. The judge also relied upon oral testimony of the senior public servants and staff within the Minister’s office as to the confidential nature of much of the information the subject of the charge.

Although it may be doubted that it fell squarely within the terms of ground 1, a challenge was raised to a particular passage in a final paragraph summarising the Minister’s duty of confidentiality. The summary included the proposition that the prosecution must:

It is true that both the syntax and the intended meaning of this passage are obscure. The concept of confidential information should not have been complex and, in its application to the particular circumstances of the trial, created few difficulties. However, two criticisms of the judge’s approach should be addressed.

The first was that the judge conflated evidence of departmental officers as to their own obligations of confidentiality with those of the Minister. [65] That criticism lacked substance. Officers in the Department did not give evidence as to their opinions as to their own duties of confidentiality in abstract terms, but rather were asked as to whether they considered particular information or documents to be confidential, and why. It was not in dispute that the Minister, like officers in the public service generally, was under a duty of confidentiality. Two principles identified in the Ministerial Code of Conduct stated: [66]

At a level of generality, confidentiality was self-evidently important in relation to commercially sensitive information. The real question was whether particular documents enjoyed a level of confidentiality which engaged the duty of the Minister to act appropriately in their dissemination and use. These were questions of fact to be determined in the course of the trial and did not give rise to a pleading issue under ground 1.

Returning to the challenged passage in the judgment, little is to be gained by reading it out of context. The curious form of the inclusion of information which “became ‘confidential’ in the hands of” the Minister may well have been so formulated to encompass material like a map, which contained much information which was in the public domain, but upon which a coal release area had been superimposed. The result of taking that step was to render that copy of the map a confidential document. The fact that the map showed the position of the town of Bylong, clearly a fact in the public domain, did not prevent the map becoming confidential in the circumstances noted.

As to the reference to “the form in which it was communicated or imparted by him”, although the appellants submitted that the judge had introduced an element of “improper use” into the definition of confidentiality, the better reading of the passage is that the judge was identifying the relevant time for determining the issue of confidentiality.

The remainder of the submissions on this topic sought to address whether particular documents relied upon by the prosecution were or were not confidential in the hands of the Minister at the time they were said to have been provided to the Obeids. However, that analysis cannot be deployed in support of ground 1. Suffice it to say that in each case there was express evidence of confidentiality attaching to the document; in several cases, the evidence was given by departmental officers or the staff member handling the documents in the Minister’s office. The evidence of these officers was set out by the judge in this section of her judgment.

With respect to ground 1, the matters raised involved issues of law, which had been raised at trial. There was an appeal as of right, no grant of leave being required. However, for the reasons set out above, ground 1 should be rejected.

At trial the prosecution accepted that it was an indispensable intermediate fact that Mr Macdonald knew that the Obeid family-owned property near Mount Penny. (It was true that that fact needed to be proved beyond reasonable doubt, but whether it was an “intermediate fact” or an essential element of the conspiracy as pleaded is open to doubt.) The appellants, however, pressed for a further finding and direction identified in Mr Moses Obeid’s written submissions in the following terms: [67]

Ground 3 of the appeal asserted that the trial judge erred in failing to consider the request for, and failing to give, a Shepherd direction as sought by the appellant at trial. As with many labels, the phrase “a Shepherd direction” was embraced by some counsel with more enthusiasm than precision. Indeed, as Mr Walker SC ultimately accepted, the facts as to which directions were sought were better conceived as ultimate facts which were required to be proved beyond reasonable doubt and, even if described as “intermediate” facts, because they formed a necessary link in a chain of reasoning, they were also required to be proved beyond reasonable doubt. The appellants’ case was primarily that the evidence did not provide a sufficient basis for the necessary inference.

The judgments in Shepherd v The Queen [68] are sometimes invoked as authority for principles which are an extrapolation of the reasoning. Special leave was granted in Shepherd in order to clarify aspects of the reasoning in the earlier decision of Chamberlain v The Queen (No 2). [69] In substance, the misapprehension raised by Chamberlain was that a jury should be directed, in any case based on circumstantial evidence, that it must be satisfied of all the facts beyond reasonable doubt, before they could be relied upon to support a guilty verdict. In Shepherd, Dawson J (with the agreement of Mason CJ, Toohey J and Gaudron J) noted that a case based on circumstantial evidence may involve some intermediate factual conclusions falling between findings of primary fact and an ultimate inference of guilt. Dawson J continued: [70]

That carefully worded statement of principle, reflecting the great diversity within the class of cases turning on circumstantial inference, should not have led in this case to a search for what were described as “Shepherd facts”. The purpose of the search was to invite the Court to set aside the verdicts on the basis that the trial judge had not given herself an appropriate warning as to the need to be satisfied beyond reasonable doubt of each necessary element of a circumstantial case.

The circumlocution involved in the formulation of this challenge (that Moses Obeid knew that Macdonald knew that …) suggests that any such direction would have been more likely to confuse a jury than to assist it in resolving a circumstantial case. If that were so, the complaint that the judge did not give herself such a warning must fall away.

However, the objection is not merely one of the potential to confuse a jury; it is one of substance. The charge spoke of Mr Macdonald doing acts in connection with the grant of an exploration licence at Mount Penny, being acts concerning the interests of the Obeid family. The evidence demonstrated, and it was an underlying contextual assumption at trial, that the only interests of the Obeid family which would be affected by the grant of an exploration licence at Mount Penny arose from the family’s interest in Cherrydale Park. The basis for the charge was, therefore, the congruence of the area over which the exploration licence might be granted and the proprietary interests of the Obeids. It would not be possible for Mr Macdonald to take steps towards the granting of an exploration licence at Mount Penny in a way which would benefit the Obeid family unless he was aware that they owned property in the area. If those were the acts as to which there was agreement, it must follow that all three of the conspirators shared the common knowledge that the Obeid family had an interest in land at Mount Penny. That common knowledge was an essential substratum of the agreement. If Mr Moses Obeid did not know or believe that Mr Macdonald knew or believed that the Obeids had a property at Mount Penny, he could not be a co-conspirator in the terms of the indictment. The essential knowledge of each as to such matters was a necessary condition of any finding of guilt based on the common agreement. If there was a reasonably available inference that Moses Obeid did not believe that Mr Macdonald knew that the Obeid family had interests in property at Mount Penny, he would be entitled to an acquittal. No special direction was needed in that respect.

It follows that ground 3, to the extent that it was not expressly abandoned by senior counsel at the hearing of the appeal, is without substance and must be rejected.

There was a degree of ambiguity as to the terms of ground 4. In Mr Moses Obeid’s written submissions, the ground was stated as involving a failure by the trial judge “to consider whether the Crown’s failure to call important evidence meant that her Honour should have entertained a reasonable doubt about whether the Crown had established the case”. [71] As appeared from the next paragraph in the submissions, the reference to a failure to “call important evidence” was intended to identify a failure to call “a witness who might have been expected to be called and to give evidence on a matter”. [72] Reliance was placed on statements in the High Court in RPS v The Queen [73] and Mahmood v State of Western Australia. [74] So expressed, the ground appeared to invoke the third limb of s 6(1) of the Criminal Appeal Act, that “on any other ground whatsoever there was a miscarriage of justice”.

The written submissions identified the approach of the trial judge as encapsulated in the following paragraph of the judgment:

As to that conclusion, the submissions stated that the reasoning was “speculative, circular and contrary to authority”. It was submitted that the “relevant question is to be asked prior to drawing the ultimate inference; it is not a question to be asked, and has no utility if asked, after having found guilt established”. Finally, it was submitted that: [75]

There are a number of difficulties underlying these submissions. The first is that the trial judge addressed the issue by reference to submissions from the appellants that she give herself a Jones v Dunkel [76] direction in relation to various witnesses. The judge noted that counsel for Mr Macdonald had sought such a direction with respect to Craig Munnings, who was Mr Macdonald’s departmental liaison officer. Further, counsel for Mr Moses Obeid had sought such directions in relation to 17 categories of witnesses, including members of the Obeid family and their associates and their chartered accountant. [77]

Having set out the list of individuals who were not called, the judge then noted that she had indicated earlier in her reasons that she would “deal with the direction sought by the accused in respect of those individuals when considering whether the Crown has proved its case”. [78] She identified that approach as being “in accordance with [Mahmood]”.

The earlier passage appears in a footnote to [664], in the course of dealing with the topic of “staff structures within the Minister’s office and the DPI”. After noting that neither Mr Munnings nor any ministerial staff member other than Mr Gibson had given evidence in the trial, the judge set out in a footnote the passages in the transcript where Jones v Dunkel directions had been sought in relation to Mr Munnings and in relation to other witnesses. The full list of witnesses was set out in the footnote. The judge concluded the lengthy footnote stating:

Not only did the judge refer to the submissions twice, but she addressed them and made rulings when she said she would. Clearly she did not overlook the requests.

Two further passages in the judge’s reasoning revealed the basis for her conclusion:

Although the judge declined to give herself a Jones v Dunkel direction, [79] it is significant that the appellants framed their request in those terms. The first and self-evident response to the present ground of appeal is that the judge did not fail to consider the submissions put to her: rather, she identified the submissions of both parties and reached a conclusion, albeit not the one sought by the appellants. It cannot be said that a miscarriage resulted from a failure to consider the issue.

Secondly, it is important to bear in mind the nature of a Jones v Dunkel direction. It would be in terms that the jury could infer from the failure of the prosecutor to call particular witnesses, without a sufficient explanation for their absence, that the evidence they might have given would not have assisted the prosecution case. [80] That is consistent with the submission made by counsel for Mr Moses Obeid that the absence of that evidence left “critical gaps in the Crown case”. The judge’s conclusion, criticised on the appeal, was a response to that submission: she was satisfied that there were no such gaps which led her to find that the prosecution had not established its case.

The manner in which the complaint was raised on appeal, namely that there was no basis to infer that the evidence of the missing witnesses would not have raised a reasonable doubt, is not consistent with the limited assistance to be obtained from a Jones v Dunkel direction. It involves a speculative assumption that the missing evidence could have raised a reasonable doubt. Although the trial judge used that language in her final concluding paragraph set out above, that was an unnecessary finding and did not correctly reflect the proper basis of the request for a Jones v Dunkel direction. The passage did, however, correctly identify the earlier finding, inconsistent with the possible existence of gaps in the prosecution case.

The appellant’s test, requiring an assumption that the witnesses not called were capable of giving evidence which was capable of raising a reasonable doubt, is not supported by the authorities relied upon.

First, there is the passage in RPS: [81]

The other statement of principle relied upon by the appellants was taken from the joint reasons of Gleeson CJ, Gummow, Kirby and Kiefel JJ in Mahmood to the following effect:

The question whether the judge’s conclusion that, on the evidence, the prosecution had proved its case beyond reasonable doubt, was open must be assessed under ground 2, asserting that the verdicts were unreasonable or such that they could not be supported on the evidence.

The conclusion reached by the trial judge with respect to appropriate directions was not legally flawed and did not give rise to a miscarriage of justice for any other reason. Three further factors support that conclusion.

First, the prosecution is not required to call every person who might conceivably give evidence relevant to some issue at trial. The trial in this matter ran for 77 days before a judge: it may be assumed that it would have taken considerably longer before a jury. Some 38 witnesses were called. A prosecutor should properly be alert to the fact that lengthy trials impose heavy burdens on all those involved, and on the administration of justice. The prosecutor has a largely unfettered discretion as to who will be called and what evidence will be tendered. If, in so doing, he or she fails to establish some element of an offence beyond reasonable doubt, the result will be an acquittal. That is a judgment to be made by the prosecutor, subject to one qualification.

The qualification is that the prosecutor is obliged to call a witness if it is necessary to ensure the fairness of the trial. [82] As stated by Dawson J in Whitehorn:

That principle was developed at a time prior to the current procedures for pre-trial disclosure of the prosecution brief. In circumstances where full disclosure is made, as a practical matter an accused will be able to identify witnesses he or she wishes the prosecution to call if they are not on the list of those to be called.

The respondent noted that in fact a list of witnesses had been furnished before the trial and updated during the trial. (Reference was made to transcript pp 4, 111, 201, 652, 1026, 1217, 1920, 3285 and MFI 1.) The respondent also noted that Mr Macdonald had specifically requested the addition of two witnesses, who had been called. Had any other request been made and rejected, it may be assumed that the accused would have raised the issue with the trial judge. That did not happen.

There is merit in giving weight to this contextual material in determining whether there has been a miscarriage of justice. Although there may be potential risks for an accused in calling a witness in the defence case, there are also risks in having the prosecutor call the witness. If the witness turns out to be “unfavourable” the prosecutor may obtain leave to cross-examine the witness including as to matters relevant to the witness’s credibility: Evidence Act 1995 (NSW), s 38. [83] The results may be highly damaging to the defence, especially if the prosecutor has a prior inconsistent statement from the witness.

In the present case, with one exception, the appellants did not request the prosecutor to call any witnesses, and in particular the lengthy list of witnesses whose absence is now said to have given rise to a miscarriage of justice. (The fact that the Obeids did not themselves call members of their own family correctly attracted no adverse comment or Jones v Dunkel direction.)

The list of witnesses not called that was apparently put to the trial judge was not identical with the list relied upon on appeal. The reasons for the variations were not explained. One witness common to both lists was Mr Munnings. He had been working in Mr Macdonald’s office at the time of the events in question. If Mr Macdonald did not wish to call him, but thought that he might have relevant evidence to give, it was at all stages open to him to invite the prosecutor to call Mr Munnings. It is not for this Court to speculate as to why that did not happen, in the absence of evidence.

The respondent noted the absence of demonstration of miscarriage, submitting that it was incumbent on the appellants to identify both an error, and one which had the capacity for practical injustice, so that there was a “real chance” that it had affected the verdict of the judge. [84] That was not done. It is true that there were lengthy written submissions identifying particular findings by the trial judge as to events about which particular witnesses might have been able to give evidence, but without any basis for drawing inferences as to what they might have said, if anything, the submissions fell well short of demonstrating practical injustice.

Ground 4 should be rejected.

Ground 2, as articulated in the grounds of appeal filed for Mr Obeid Snr, involved two limbs. The second, par (b), was a reflection of common ground 5, noting that the verdict was unreasonable or unable to be supported by the evidence. However, the first limb, par (a) was in the following terms:

The written submissions identified the hypotheses as including: [85]

The written submissions alleged that these were “substantive and articulated arguments”, but no detail was given as to where and in what terms they were articulated during the trial. In any event, they are best dealt with as particulars of the unreasonable verdict ground and will be considered in that context.

Grounds 6, 7 and 8 were identified as additional grounds and were the same additional grounds relied on by Mr Macdonald. Accordingly, they will be dealt with in turn by reference to the submissions of both appellants.

Ground 6, as formulated by Mr Obeid Snr, read as follows:

There are three elements to this ground, namely (i) identification of the representations, (ii) the manner in which s 87(1)(c) of the Evidence Act was deployed and (iiii) the consequential findings.

The relevant representations of both Mr Macdonald and Mr Moses Obeid involved their conduct in taking steps in furtherance of the conspiracy, the subject of the charge. [86] If reliance on that material was legitimate as giving rise to implied representations by Mr Macdonald and Mr Moses Obeid which could be attributed as made with the authority of Mr Obeid Snr, and therefore as admissions by him, the detail of the representations can be considered in addressing the consequences of that approach.

The substance of the ground was directed to the alleged error on the part of the trial judge in her deployment of s 87(1)(c) of the Evidence Act as a basis for using the conduct of the two men as admissions by the third.

Before turning to the specific terms of s 87(1)(c) of the Evidence Act, it is convenient to identify the relevant legal principles.

First, evidence by A as to what was said by a party against his or her own interest is hearsay. The rule excluding hearsay evidence does not, however, apply to evidence of an admission: Evidence Act, s 81(1). However, generally, an admission by B as to what C may have done is not admissible against C. That rule is subject to an exception where B has authority to speak on behalf of C as to the matter, the subject of the admission. Under the general law, an analogous authority was presumed with respect to assertions made by one co-conspirator implicating another. That general law principle was explained in the judgment of the High Court in Ahern v The Queen. [87] The passage commenced with a statement by Isaacs J in the Coal-Vend Case: [88]

In Ahern, the Court continued:

Relevantly for the operation of s 87(1)(c) of the Evidence Act, Ahern (decided some seven years before the enactment of the Evidence Act) continued:

The apparent purpose of two provisions in the Evidence Act is to overcome the “bootstraps” problem. Thus, s 57 states:

Sections 55-57 appear in Pt 3.1 of the Evidence Act under the heading “Relevance”. Although s 57(2) is directed specifically to the existence of an unlawful conspiracy, the two provisions should be read together, so that the use the court may make of the evidence itself in determining whether the common purpose existed, must be directed towards whether it is reasonably open to make that finding. Secondly, as recorded in s 56, whether evidence is or is not relevant is a determinant of admissibility (subject to other provisions of the Act). Accordingly, s 57 is directed to a finding of admissibility, not to the ultimate use which may be made of the evidence, although if admissible for the purpose of establishing a common purpose, it must be capable of use by the trier of fact for that purpose. Further, s 57 is not directed to the admissibility of hearsay evidence, but will apply to any act undertaken in the course of the conspiracy.

Section 87 appears in Pt 3.4, under the heading “Admissions”. Part 3.4 includes s 81 which provides that the hearsay rule does not apply to evidence of an admission. Section 87(1) is as follows:

As explained by Simpson AJA in R v Dolding, [92] s 87 is directed to the question, “[s]hould a representation made by a third party be admitted ‘[f]or the purpose of determining whether a previous representation made by a person’ … is to be taken to be an admission by a party ‘to the substantive proceedings’”. [93] That slightly awkward construction sought to explain that s 87(1) was directed to the question of admissibility and was not directed to the substantive proceeding. It is directed to a decision to permit the use of the representation in the trial as evidence against a party, not being the person making the representation. This reading caused Simpson AJA to doubt the accuracy of statements made in two other decisions of this Court, namely R v Macraild [94] and Elomar v R. [95]

It is true that, as with most rules of evidence s 87 is directed to admissibility and is to be applied by the judicial gatekeeper, not by the ultimate fact-finder, be it judge or jury. However, an apparent purpose of the two provisions set out above is to avoid the need to establish the existence of the common purpose by evidence extraneous to the representation, the admissibility of which is in dispute. If the general law principle required that, there is nothing in the language of s 87(1)(c) to suggest that the general law principle is being preserved in that respect. [96]

The statement in Macraild (set out in Dolding at [24]) that “section 87 reproduces the common law relating to representations made by co-conspirators”, referring to Ahern and Tripodi, should also be treated with caution. Consistently with the submission made on behalf of Mr Obeid Snr, these provisions do not so much “reproduce” (in the sense of give effect to) the common law principle as assume the existence of that principle but remove the requirement that there must be evidence extraneous to the evidence in question to establish the common purpose.

The operation of ss 57(2) and 87(1)(c) proposed here is consistent with the expressed intention of the Australian Law Reform Commission in its report supporting the introduction of such a provision. [97] In dealing with provisional relevance, the Commission noted that “[e]vidence of statements made by an alleged conspirator A and tendered as evidence of acts done pursuant to the alleged conspiracy will continue to be admissible against A and against alleged conspirator B”. Noting that the relevance of the act of A to the case against B will depend upon “a finding that there was a common purpose”, the Commission noted that “the proposal provides that, as at present, the evidence of A’s acts may be considered with evidence of B’s acts and collateral circumstances to prove the common design”. That statement was supported by a passage from the Coal-Vend Case at 401, which appears to pick up the following statement from Russell on Crimes: [98]

Indeed, Dolding noted that s 87 imposed an undemanding test, namely that it was “reasonably open to find” both that a “representation” had been made and that it had been made “in furtherance of the common purpose”. With respect to the first issue, the judge, after noting the finding of the trial judge that the representations were in effect devoid of factual content, concluded:

In dealing with the second question, the judge considered the statements made by Ms Maniskas to RS, for whom she was allegedly purchasing the drugs from the accused, in the context of that separate evidence. The common purpose as between Ms Maniskas (the maker of the statements) and the accused could not be derived from the content of the statements because they contained no reference to the accused. Insofar as the conduct of Mr Maitland and Mr Moses Obeid contained implied representations, the same is true in the present case. Accordingly, in such circumstances, it is necessary as a practical matter that the evidence be extraneous to the representations.

Further, although these provisions govern a finding as to admissibility, they must have operation with respect to the substantive exercise to be undertaken by the trier of facts, be it the judge or a jury. In other words, if evidence of a representation can be admitted because it was reasonably open to the judge to find that the representation was made in furtherance of a common purpose, it must be open to the fact finder to determine whether or not it was so made. Similarly, a finding that it is reasonably open to find that the evidence itself can be used in determining whether the common purpose existed (pursuant to s 57(2)), must mean that the trier of fact can make a finding in this respect. These provisions are in common form with statements of general rule allowing the admissibility of evidence. The fact that evidence is said to be relevant if it were accepted, because it could “rationally affect… the assessment of the probability of the existence of a fact in issue” (s 55(1)) does not mean that the jury or judge deciding the fact in issue need necessarily accept that it has that affect. It is true that the language of the Evidence Act is not consistent in this regard: the qualification in s 55 (if it were accepted) will apply to evidence generally; similarly, the fact that a statement has been admitted and accepted by the jury as having been made, does not mean that the jury are bound to give it any particular weight. So it is with evidence of a common purpose. The representation of the co-conspirator may be used to support a finding of the existence of the common purpose, but whether or not it is so used is entirely a matter for the trier of fact.

That conclusion gave rise to a second limb to ground 6, namely that the trial judge did not explain how in fact she used the evidence, having accepted that it could be used to support a common purpose.

That is not to deny, as noted in Dolding and accepted in Higgins v R [99] there may be other reasons why the evidence should not be admitted in the substantive proceeding. That, of course, is true of any evidence which survives one basis of exclusion.

Whether in fact the judge failed to explain the basis upon which the conduct of Mr Macdonald and Mr Moses Obeid was relied upon to demonstrate the involvement of Mr Obeid Snr in the conspiracy requires reference to a number of passages in the judgment.

The submissions for Mr Obeid Snr noted that the issue of admissions had been agitated on a voir dire and rulings made in the course of the trial. [100] However, while that judgment referred in passing to s 87(1)(c) it was expressly noted that s 87(1)(c) was not relied upon by the prosecution in relation to alleged admissions by Edward and Moses Obeid in interviews conducted with journalists “three years after the conspiracy had been fully executed” so that the representations could not be said to be “in furtherance of the common purpose comprehended by the conspiracy during its currency”. [101]

In the final judgment, the prosecution submissions as to the evidence relied upon to prove the participation of Mr Obeid Snr in the conspiracy was set out at [335]; particulars which were not relied upon in closing submissions were listed at [337]. It is not necessary for present purposes to identify each passage in the judge’s reasons which set out evidence inculpating Mr Obeid Snr: that exercise has been/will be undertaken in considering ground 2. The judge returned to consider whether a conspiracy had been established beyond reasonable doubt at [1822]-[1881]. At [1879]-[1881] the judge expressed her satisfaction beyond reasonable doubt that the acts of misconduct committed by Mr Macdonald were committed in furtherance of the specific conspiracy alleged. She was also satisfied beyond reasonable doubt that the conspiracy was in existence when the first act of misconduct was committed by Mr Macdonald on 9 May 2008.

The judge then turned to the financial motives attributed by the prosecutor to Mr Obeid Snr and Mr Moses Obeid. That element, the judge observed, was of relevance in relation to the involvement in the conspiracy of the Obeids, rather than Mr Macdonald: at [1896]. However, before addressing that issue, the judge turned to consider evidence that both Mr Obeid Snr and Mr Moses Obeid “sought to conceal their participation in the conspiracy by taking steps to distance their family’s ownership of Cherrydale Park, each of them making concerted efforts in achieving that objective in 2008 and 2009”: at [1898]. That passage concluded with the following statement:

The judge then turned to determine whether Mr Moses Obeid’s participation in the conspiracy had been proved beyond reasonable doubt, and addressed the question without considering material which might fall within s 87(1)(c) of the Evidence Act. On that limited basis, the judge stated:

Noting that the participation of Mr Moses Obeid had been proved “in a multiplicity of ways” the judge stated:

Finally, with respect to Mr Moses Obeid, the judge turned to 10 lies, which she had accepted were capable of demonstrating consciousness of guilt in Macdonald (No 15). [102] She expressed her satisfaction that each of the 10 lies was “a deliberate misstatement of the truth”, and that each was told “in an attempt by him to conceal both the existence of the conspiracy” and his active participation in it. The lies relied upon were identified at [1970]-[1978].

At [1981], the judge turned to the question of participation by Mr Obeid Snr in the conspiracy. Again, this was not the beginning of the analysis. The reasoning commenced:

The judge then summarised some of the findings. The various factors relied upon by the trial judge are addressed in considering common ground 2. None was treated as ultimately determinative. The judge then turned to the admissions at [1993]-[1997]. The judge then turned to consider the operation of the co-conspirators rule, noting that she had not found it necessary to rely upon such material with respect to Mr Macdonald or Mr Moses Obeid: at [1998]-[1999]. The judge then stated:

Contrary to the submissions for the appellant, the judge was not, at that stage, making a finding that the prosecution case would not establish participation by Mr Obeid Snr absent some further material, but rather, as it happened in earlier passages, identified it as what might potentially be a critical step in the process of determining his involvement.

After setting out the terms of s 87(1)(c), the judge noted:

Although the language used in these paragraphs reflected the language used in cases dealing with the provision which were binding on the trial judge, for the reasons stated above, it may be unhelpful to describe s 87(1)(c) as providing “a statutory basis for the operation of the co-conspirators rule at common law” and as providing that “there must be reasonable evidence, extraneous to the representations…, of both the existence of a common purpose” and that the representation was “made in furtherance of that common purpose”. Nevertheless, the approach adopted was, if anything, unduly favourable to the accused. Further, despite the statements of counsel in this Court that submissions below had been directed to the application of the co-conspirators rule rather than the operation of s 87(1)(c), it is clear that the rule itself was correctly identified in the statement of the prosecution submission, at [2002].

On this assumption that extraneous evidence was required of Mr Obeid Snr’s participation in the conspiracy, the judge was satisfied that “[f]or the reasons already given in considering the evidence probative of Edward Obeid’s participation” she rejected the submission: at [2007]. Whether the rule was properly said to be “embodied in s 87(1)(c)” as a relevant authority at the time held, or whether the rule was an independent aspect of the general law, it is clear that counsel’s submissions were carefully and directly addressed. In short, the finding that there was a conspiracy involving Mr Macdonald and Mr Moses Obeid had already been explained and that the acts undertaken by each were undertaken in the furtherance of that conspiracy. With respect to the challenges to the engagement of the rule, the judge concluded:

In the following two paragraphs, the representations made by Mr Macdonald and Mr Moses Obeid respectively were identified. They involved the conduct undertaken in furtherance of the conspiracy.

As has been noted, counsel for Mr Obeid Snr submitted forcefully that, having identified the “representations” constituted by the conduct of the co-conspirators in furtherance of the conspiracy, the judge did not explain how she relied upon those “representations”.

In our view, there is substance to that complaint. However, what the judge’s concluding paragraphs revealed was that she relied upon the conduct as conduct which would not have been undertaken absent participation by Mr Obeid Snr in the conspiracy. The problem for the appellant is that such reasoning is entirely open: reliance upon s 87(1)(c) was in the circumstances both unnecessary and misconceived, because there was no reliance on an admission admissible by way of an exception to the hearsay rule. The error is, however, entirely immaterial: it gives rise to no possibility that, for this reason, Mr Obeid Snr lost an opportunity for acquittal.

The reasoning of the judge in this respect should be set out in full:

For these reasons, ground 6 must be rejected.

Ground 7 as pleaded by Mr Obeid Snr and relied upon by Mr Macdonald had two limbs. However, the second limb was, in effect, a restatement of grounds 2 and 5 and was not pressed at the hearing of the appeal. Ground 7 as pressed, read as follows:

It should be observed that, if the analysis set out above of the nature of the case is correct, the judge did not rely upon the conduct discussed in relation to ground 6 as giving rise to any particular representation, but rather as conduct in furtherance of the conspiracy, and therefore as evidence of the existence of the conspiracy. Accordingly, insofar as ground 7, by using the phrase “reasonable evidence of the appellant’s participation in the conspiracy”, was directed to the question of admissibility, only s 57(2) was engaged, which expressly states that the court may use the evidence in determining whether the common purpose existed. However, the particular in (a) suggests that the challenge was not to admissibility, but rather to the conclusion reached by the trial judge as to Mr Obeid Snr’s involvement in the conspiracy. The written submissions directed to the reasoning of the trial judge supported that understanding, as did the oral argument on the appeal. Accordingly, the submission that the judge made findings which were “not open” on the evidence had the same character as ground 5, to the extent that particular findings were identified, and as to ground 2, to the extent that the finding in issue was simply Mr Obeid Snr’s involvement in the conspiracy, which was an ultimate fact in issue. Nevertheless, it is convenient to deal with the submissions made in support of ground 7.

The written submissions commenced with the proposition that there were “five facts or matters underpinning her Honour’s conclusion of reasonable participation”. [103] This should be understood as an assertion that there were five findings of fact which underpinned the ultimate conclusion that the appellant was a participant in the conspiracy. As it was not submitted that any particular matter or fact was essential to that conclusion, it was necessary for the appellant to establish that a fact was not open to the primary judge. The passage in issue involved 17 paragraphs of the judgment under the heading “Is Edward Obeid’s participation in the conspiracy proved beyond reasonable doubt?”, but not reaching a conclusion on that question until the further consideration (discussed under ground 6) which relied upon the nature of the conduct of the other conspirators as demonstrating beyond reasonable doubt that such conduct would not have occurred without the active participation of Mr Obeid Snr. It followed that none of the “five matters” identified in the written submissions were determinative of that outcome; further, each was expressed in guarded terms.

The first matter identified in the submissions was to be found in the following passage in the judgment, which should be set out in full (with the finding complained of in italics):

The written submissions accepted that this was not an “act” relied upon by the prosecutor in opening, but rather an “inference” derived from other matters. That characterisation was correct: why the inference was not reasonably open was not explained. The substance of the complaint appeared to be that to acknowledge an inference as a “strong probability” was “a hypothesis entirely consistent with innocence”. [104]

The intimation that the judge did not identify or address the reasonable hypothesis consistent with innocence cannot be accepted. Those hypotheses were identified on numerous occasions in the course of the judge’s reasons, including, significantly, in her refusal to be satisfied of the guilt of the conspirators on the basis of the first and second acts of misconduct. Otherwise, it may be accepted that the finding of a “strong probability” did not exclude reasonable hypothesis consistent with innocence. As that is the very language used by the trial judge, it cannot be a basis of error in this respect. The first matter identified contains no error.

The second matter arose from the following paragraph in the judgment. That passage read as follows:

There was passing reference in the submissions to this being a use of a particular matter for tendency purposes, being a basis which was not relied upon by the prosecution. Much circumstantial evidence can, at least in a colloquial sense, be characterised as “tendency evidence”: to suggest that particular evidence cannot be used in that way requires attention to the precise nature of the inference being drawn. That was not provided in the written submissions: the term “tendency” was not used in oral argument. This complaint should be rejected.

The second complaint is that preparedness to seek information from a parliamentary colleague was “not evidence of agreement and participation in a conspiracy”. That complaint invokes the fallacy that the relevance of any item of evidence in a circumstantial case must be apparent by looking at the item taken out of context. That was precisely the problem which this Court identified in Dolding. The complaint is untenable.

The third matter complained of was in fact an extrapolation of the reasoning with respect to the second matter. The passage in the judgment continued:

The only criticism of this reasoning was contained in two sentences in the written submissions in the following terms: [105]

The failure to give a direction in accordance with Edwards v The Queen [106] was the subject of ground 8, not ground 6, and will be dealt with in that context.

The first objection has two elements. The first element related to the lengthy judgment on the admissibility of statements made to a number of journalists, which has been identified as R v Macdonald (No 15). [107] The written submissions referred in a footnote to that judgment at [63]. That passage related to a different interview with a different journalist. The intended reference was to line 63 of the Shanahan-Jiminez interview, identified at p 57 of attachment A to R v Macdonald (No 15). The passage was admitted under s 81 as “capable of constituting an admission against interest against Edward Obeid”. As appears from the judgment, specific passages identified as lies, prevarication or deflection were accepted as capable of constituting admissions based upon a consciousness of guilt. The third challenge is untenable.

The fourth and fifth challenges had a different focus; however, before turning to that material, it is necessary to identify the preliminary statement in relation to which the evidence was addressed. That appears from the following passages:

The first passage complained of (the fourth matter) was as follows:

Several criticisms were made of this passage. First, it was said that “the evidence of matters described by Moses … were not admitted against the appellant as an admission”. [108] However, the point was trivial. There was no submission that the description was controversial, and it patently was not.

The second criticism was that the finding was not the basis of the prosecution case and was not supported by any evidence. The basis of this submission was unclear. The matters relied upon by the judge, namely evidence as to Mr Obeid Snr instructing solicitors and contacting the former owner, Mr Cherry, who still had a security interest in the property, to change the identity of the registered proprietor, were referred to in the very sentence about which the criticism was raised. It was an important aspect of the prosecution case that attempts were made to disguise the Obeid family interest in the property, as demonstrating an understanding both of the impropriety of Mr Macdonald’s conduct and of the Obeid family’s involvement as the beneficiaries of his partiality. In closing written submissions, the prosecution identified as “evidence to establish participation in the conspiracy by Edward Obeid”, a series of matters, including:

The extensive evidence relied upon by the prosecutor in support of that proposition was set out in the written submissions at pars 478-521. The criticism raised by the appellant was untenable.

The fifth matter identified a phrase in one paragraph of the judgment, namely a finding as to “the degree of telephone contact between the appellant and Moses Obeid”. The criticism was that it was inconsistent for the judge to purport to rely on that material as evidence in support of Mr Obeid Snr’s involvement in the conspiracy while at the same time concluding that “in the absence of the content of any of those communications the weight of that evidence goes no higher than to establish the opportunity for the relaying of information in that way”. What followed that finding, which is not directly the subject of criticism, was the conclusion reached by the judge, namely:

The finding of limited weight, which the judge observed was accepted by the prosecutor, could not have been the subject of relevant criticism on appeal. Such a finding was self-evidently open to the trial judge. The complaint involving “matter five” must be rejected.

There remains one further factor which should be identified in relation to this aspect of the judge’s reasoning. As has been noted, the judge did not in fact answer the question as to whether Mr Obeid Snr’s participation was proved beyond reasonable doubt before turning to the use to be made of the co-conspirators rule and reliance on the nature of the conduct engaged in by Mr Macdonald and Mr Moses Obeid. It may be inferred that it was in anticipation of that further step that the judge consistently used the phrase “reasonable evidence” to describe the evidence which was being considered in relation to Mr Obeid Snr’s participation in the conspiracy, which had already been found to exist. That is, the judge was making findings, extraneous to the evidence relied upon pursuant to the co-conspirators rule, to demonstrate the existence of the conspiracy in furtherance of which the acts of the co-conspirators could be relied upon against Mr Obeid Snr.

Nevertheless, it is clear that the judge was also making findings as to those elements of the evidence which she accepted and identifying the weight which she was prepared to give to them. This dual function was relevant for the purposes of considering in due course the unreasonable verdict ground. For present purposes, it is sufficient to note that ground 7 must be rejected.

Ground 8 had two parts and read as follows:

At the heart of the two limbs to ground 8 was the proposition that the trial judge was obliged, pursuant to s 133 of the Criminal Procedure Act 1986 (NSW) , to give herself a direction, which was to be recorded in the trial judgment, in accordance with the principles stated in Edwards v The Queen. [110] The principles, however, were referred to by the judge in R v Macdonald (No 15) in terms which were not the subject of criticism on the appeal. Thus, the judge stated:

Having then considered the way in which particular representations were capable of demonstrating consciousness of guilt with respect to the offence the subject of the indictment, the trial judge concluded that of 36 representations identified by the prosecutor, 10 were “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”. [111] The trial judgment then continued:

It is true that the judge anticipated giving herself a further warning in the final judgment, which she did not, in terms, do. However, the judge referred to Edwards on two occasions. The first was as a footnote to the summary of the prosecution submissions to the effect that “Mr Macdonald lied to Mr Gibson about the location of Cherrydale Park, both conscious of what he had done in execution of the conspiracy and with the intention of concealing both the existence of the conspiracy and his participation in it”. [112]

The second occasion was in a passage which expressly referred to R v Macdonald (No 15):

Further, with respect to Mr Obeid Snr, the judgment stated:

The context in which the interlocutory judgment was delivered is also significant. The prosecution closed its case on day 68 (24 November 2020). There was no defence case and, following discussion of certain legal issues, the matter was adjourned on 26 November 2020 for two months and concluded with eight days of closing addresses between 1 February and 17 February 2021. Judgment was reserved on 17 February 2021 and delivered on 19 July 2021. The interlocutory judgment dealing with admissions and referring to the principle in Edwards v The Queen was delivered on 25 November 2020, after the evidence had been completed and in anticipation of closing addresses.

The written submissions for Mr Obeid Snr at trial (dated 9 February 2021) ran to 170 paragraphs. There was one sentence (par 89) which stated:

The precise terms of the “Edwards direction”, and any particular issues to be addressed, were not identified. Nothing further was said as to that matter in oral submissions. [113]

Finally, it is convenient to note the legal consequence of there being no “Edwards direction” set out in the final judgment. The respondent identified on the appeal two factors which needed to be addressed. First, it was contended that the trial judge both directed herself in accordance with the principles in Edwards and applied those principles. The respondent relied upon the passage at [1967], set out at [199] above which included the footnote to Edwards v The Queen. The respondent also relied upon the two following paragraphs which read as follows:

There are a number of elements to the direction that a jury should be given in relation to lies revealing consciousness of guilt, which thereby constitute admissions. First, the lie must be “deliberate”; secondly it must “relate to a material issue”; thirdly it should be “precisely identified”, and fourthly, a jury should be instructed that “there may be reasons for the telling of a lie apart from the realisation of guilt if the truth were revealed”.

There was no submission from the appellant that the trial judge did not apply these principles. As the respondent contended, she clearly did. For example, in dealing with Mr Moses Obeid, the trial judge stated:

In the passages at [1994]-[1997], each of these factors was applied. What was lacking from submissions by the appellant was the identification of any element of an appropriate direction which was not given and which was, in a realistic sense, a matter which Edwards required be the subject of a direction. This leads to the other point raised by the respondent.

Secondly, the respondent noted that there was a difficulty arising from the appellant’s reliance upon an alleged failure to comply with s 133(3) of the Criminal Procedure Act, as demonstrating error of law. There is a difference between the operation of s133 (2) and s 133(3). Subsection (2) requires that a judgment record “principles of law” applied by the judge and “findings of fact” on which the judge relied. Warnings are dealt with in subs (3), under which the judge is required “to take the warning into account in dealing with the matter”. Generally, as noted in Dansie v The Queen, [114] the reasons of the judge must demonstrate that the judge did take the warning into account: however, it does not follow that the direction must be stated in the language which would be used in relation to a jury. For example, while it may be necessary to direct the jury that they be satisfied that a lie was “deliberate” before relying upon it, an express finding in the judgment that a lie was deliberate would demonstrate compliance with that aspect of s 133(3). Similarly, a jury may need to be directed as to what it may mean to identify a lie “with precision”. However, where a judgment identifies in express terms the lies relied upon and found to have been deliberate, with sufficient precision, it should be inferred that the judge has complied with the terms of the warnings derived from Edwards v The Queen.

In support of that proposition, the respondent noted the observations in Zoneff v The Queen: [115]

As the respondent submitted, what was described, more than once, as an “Edwards-type direction”, cannot be characterised as a “principle of law” for the purposes of s 133(2). It lacks the necessary degree of obligation and specificity. Obligation is missing because judgment must be exercised as to whether, and if so in what terms, a direction should be given. Accordingly, the fact that the findings of the trial judge demonstrated with a degree of clarity that the relevant principles identified in Edwards were applied, also demonstrated the absence of an error of law sufficient to engage non-compliance with either s 133(2) or s 133(3). Ground 8 should be rejected.

Somewhat elliptically, ground 5 merely read:

The written submissions of Mr Moses Obeid identified five specific factual errors under the following headings:

The content of the factual errors is to be gleaned from the detailed written submissions.

In order to understand the issue raised under this subheading, it is necessary to recall that the trial judge was satisfied as to the facts alleged with respect to the first and second acts of misconduct. Those acts involved enquiries by Mr Macdonald as to the coal reserves in the area of Mount Penny in the Bylong Valley. Such enquiries were made with knowledge that the Obeid family-owned property in that location. Further, Mr Macdonald sought further information from the department as to whether it was possible to open the holdings for tender. The judge held, undoubtedly correctly, that those findings did not of themselves implicate Mr Macdonald or the Obeids in a conspiracy. As the judge noted, there would remain a reasonable hypothesis that Mr Macdonald had so conducted himself “as a favour to Edward Obeid, knowing his family-owned Cherrydale Park and they were keen to gather information about the potential coal reserves under their property and surrounds, or to gain some perceived political leverage or in the hope or expectation of a financial benefit if the Obeids were able to exploit the information”. [117] Thus, in order to establish that such activities occurred pursuant to the unlawful conspiracy as pleaded, it was necessary for the prosecution to establish some conduct of the Obeids demonstrating knowledge of an action in reliance upon the pleaded agreement.

One aspect of the benefits which might flow from development of the coal reserves was an increase in the value of all three properties which lay above the identified reserves, being Cherrydale Park, Coggan Creek and Donola. The prosecution case was that armed with knowledge of the potential exploitation of coal in the area, the Obeids saw a significant benefit in the three properties being under control of their friends or associates, partly to benefit their friends or associates, but also to permit a joint approach to any prospective miner which would wish to purchase the properties. One of the proposed purchasers was the Fitzhenry family, who were neighbours of Moses Obeid and had close social ties with the Obeids.

There was no dispute that there were conversations between Peter Fitzhenry and his wife Nicole Fitzhenry and Moses Obeid in the course of which coal resources in the Bylong Valley were discussed. The critical issue for the purposes of the trial was when those discussions took place. If, as the judge found, they took place in early 2008, that is before 9 May 2008, they provided potentially strong evidence of the plans to exploit the coal resource being undertaken by the Obeids before the critical date by which the agreement, on the prosecution case, had to have been formed.

The judge explained the relationship between the Fitzhenrys and the Obeids in the following passage:

The evidence of both Mr Fitzhenry and Mrs Fitzhenry supported a finding that there were a number of conversations about Cherrydale and the Bylong Valley coal resource. A number of objective circumstances were not in doubt. The first was that the Obeids were looking for a country property in late 2007. There was no dispute that contracts were engaged for the purchase of Cherrydale from Mr Kerry Packer’s accountant, Mr Cherry, in September 2007 and that settlement occurred on 15 November 2007.

It was also uncontroversial that the Obeid family (in particular Paul and Gerard Obeid) were interested in finding purchasers for Coggan Creek and Donola in June 2008, some six weeks after 9 May 2008, the date of the first act of misconduct. The Obeid brothers, with another associated family, the Triulcios, purchased Donola on 6 August 2008. Mr Moses Obeid obtained a purchaser of Coggan Creek, Mr Justin Lewis, a personal friend, in October 2008.

The first act of misconduct relied upon alleged that Mr Macdonald sought information “as to the volume of coal reserves in the area of Mount Penny” on or about 9 May 2008. That formulation, which the trial judge accepted as established on the evidence, implied that the Minister had knowledge of the existence of coal reserves in the area prior to that date. For the conspiracy to have existed at that time, that information must also have been known to the Obeids. Part of the evidence relied upon for the judge’s conclusion that that was in fact so was found in conversations between Mr Moses Obeid and Mr Fitzhenry. That evidence was partly supported by Mrs Fitzhenry, and there is no doubt that a number of conversations took place, over a period of time. It is also not in doubt that Mr Fitzhenry was at points of his evidence imprecise as to the period within which a particular conversation had taken place. After obtaining evidence as to conversations in relation to the Obeids’ purchase of Cherrydale, the following evidence was led from Mr Fitzhenry: [118]

In sequence, Mr Fitzhenry then gave evidence that there was a helicopter trip to Cherrydale because a friend was taking helicopter lessons and they flew there on a Saturday with Mr Moses Obeid. Thereafter, there was a further conversation about Mr Fitzhenry buying a property which was next door to Cherrydale. He imagined that that was about a month after the helicopter trip, during which there had been no discussion of coal. The purpose of the purchase was to make a “substantial amount of money” if the coal were to be extracted. [119] Mr Fitzhenry was also told “[t]here was a railhead that made the property valuable to a mining situation”. [120]

If that evidence were accepted, it was apparent that Mr Moses Obeid was investigating the possibility of extracting coal both from Cherrydale and, by implication, from Coggan Creek. The Wiles Map, produced on 30 May 2008, and set out in the appendix to these reasons, showed a coal resource area running north-south under both Cherrydale Park and Coggan Creek, and continuing under Donola.

One possibility was that, although the vendor of Cherrydale Park, Mr Cherry, disclaimed any knowledge of affectation by an existing coal mining tenement, there was a large exploration licence to the east of Cherrydale Park, a small portion of which (120 hectares) impinged on the eastern boundary of Cherrydale Park. The affectation was minor in the sense that Cherrydale Park covered some 6,000 hectares. The resource which became the subject of the Mount Penny exploration licence, was far more extensive. It was therefore unlikely that Mr Moses Obeid had in mind possible mining under the eastern authority when discussing the likelihood of enrichment through the exploitation of coal “under” Cherrydale Park.

After considering the cross-examination of Mr Fitzhenry, the evidence given by his wife, together with her cross-examination, the judge reached a number of conclusions. First, little weight was placed on the evidence of Mrs Fitzhenry in relation to the events in 2007-early 2008. However, the judge took a different approach with respect to the evidence of Mr Fitzhenry, concluding:

The appellant submitted that this finding was not open on three bases.

First, it was submitted that Mr Fitzhenry’s evidence as to the timing of various events was “confused”. [121] Aspects of his recollection of timing were undoubtedly unreliable. However, after referring to cross-examination on the basis of statements made to the ICAC, at a time when Cascade Mining or Cascade Coal was involved (which must have been in 2009) was addressing a different stage of the process. The judge noted:

The judge accepted that the timing of the earlier conversation “where coal and the property adjoining Cherrydale Park (Coggan Creek) were mentioned in tandem, however, it seems to me, on Mr Fitzhenry’s evidence, to be early in 2008”. [122] Otherwise, the cross-examination of Mr Fitzhenry was relatively brief. Reliance was placed upon a suggestion put to him that the conversations with respect to the purchase of Cherrydale and the possibility of coal at Cherrydale took place in September or October 2008, a question which he was unable to answer. However, the question and answer should not be taken out of context. The relevant passage in the cross-examination was as follows: [123]

It is clear that the trial judge did not consider that that cross-examination cast doubt upon Mr Fitzhenry’s earlier evidence which placed the conversation about coal under Cherrydale within a few weeks after the settlement of the purchase, and therefore in the earlier part of 2008. It was undoubtedly open to the judge to make that finding.

Secondly, it was said that such a finding was inconsistent with the objectively known circumstances.

Apart from the dates put to Mr Fitzhenry in cross-examination, it was submitted that the timing of the suggestion that the Fitzhenrys mortgaged their house to buy Coggan Creek cannot have occurred within a month of the helicopter trip to Cherrydale. That was because “[t]here was no evidence that Coggan Creek was even up for sale until around June 2008”. [124]

The force of that proposition, which was not put to Mr Fitzhenry in cross-examination is not entirely clear. If Mr Moses Obeid had been aware that there was coal under Coggan Creek, he might well have sought to identify people who might purchase it, without knowing whether it was “on the market”, although it turned out to be for sale in the third week of June.

Thirdly, in the course of oral submissions, it was contended that it would be “quite impossible to understand how there [is] any corroborating circumstance for what might be called the discovery of coal, until obviously some time considerably later, in 2008. The Minister, after all, in the first two instances of misconduct, was seeking information he did not have concerning the availability of a resource”. However, for reasons noted above, the first two instances of misconduct assumed knowledge of the existence of the resource, of which details were lacking at that time. That does not place significant doubt on the evidence of a conversation prior to 9 May 2008, in which Mr Moses Obeid demonstrated excitement as to the prospect of an exploitable resource under Cherrydale.

The challenge to the finding in relation to Mr Fitzhenry’s evidence should be rejected.

There was a challenge to the way in which the trial judge dealt with the evidence of Mr Mullard in relation to a meeting with Mr Macdonald on 6 June 2008. The evidence was dealt with in some detail in relation to ground 2, but a specific challenge was mounted under ground 5 in relation to the following finding:

This finding was made in the course of rejecting the prosecution’s formulation of the fifth act of misconduct, to the extent that it had alleged that Mr Macdonald “directed” that the potential open cut area depicted in Wiles Map 2 be reduced to a smaller area comprising the eastern portion only. Thus, the evidence of strong suggestion was held not to satisfy the concept of direction. The present challenge, however, went to the aspect of the act which referred to the eastern portion, next to Mount Penny.

The submissions correctly noted that the finding reflected an earlier passage in the judgment in the following terms:

The footnotes to the first and second sentences in this passage identified two pages of the transcript, namely 901 and 902. However, to understand the evidence given in those pages, it is necessary to start earlier in the cross-examination by the prosecutor (pursuant to leave under s 38 of the Evidence Act), who took Mr Mullard to a statement he had made dated 20 May 2014. [125] Mr Mullard agreed that when he signed the statement he was satisfied that the contents were true to the best of his knowledge and belief. [126] He was then taken to a paragraph which read as follows: [127]

Mr Mullard agreed that that was what he had said but baulked at the proposition that it “accurately records what the Minister said at the meeting”. [128] He noted that the statement was written six years after the event and it was now 12 years after the event and he had no present recollection of what was said at the meeting.

The prosecutor continued: [129]

The appellants criticised the use of the word “volunteered”, although the passage in the transcript set out above suggests that it was entirely appropriate. In any event, the criticism is immaterial. The other arguably substantive criticism was identified as follows: [130]

The thrust of this contention appears to have been that there were other passages in which Mr Mullard expressed his understanding of what had happened at the meeting differently. Because he accepted he had no clear recollection of what was said at the meeting, whilst in the witness box in March 2020, it was undoubtedly open to the trial judge to accept the formulation he had used in his earlier statement.

The submissions further asserted that the words “in the east” would not have been indicated in quotation marks, as appeared in the transcript. It was submitted that there was therefore “a clear ambiguity that arises as to what was said versus what was the conclusion of the meeting”.

This criticism is without substance. It was being put to Mr Mullard that things which he had said in his statement were in fact said at the meeting, and that the previous full question had referred to “a smaller area in the east”. Mr Mullard’s answer had accepted that he “definitely told me to make a smaller area”, to which the prosecutor sought to add in the next question, “in the east”. There was no ambiguity. Nor was there any misdescription in the summary given by the trial judge at [971] set out above. (It might be thought that the judge’s ultimate finding as to the fifth act of misconduct was favourable to the accused.) The difference between a direction and what the Minister “definitely told” Mr Mullard to do, is obscure. In any event, the suggestion that the finding as to what the Minister strongly suggested was not open to the trial judge is without substance and should be rejected.

The third matter said to demonstrate error on the part of the trial judge related to a complex set of passages in the evidence as to discussions within the Department in May 2008 and whether they included the Bylong area. By “error” the appellants must be understood to be asserting that certain findings of fact were “not open” on the evidence. Whether that was indeed the intended inference to be drawn from the submissions with respect to this matter is unclear. Because the subject matter of the challenge was not crystallised with precision in any ground of appeal, it is necessary to set out what appears to be the heart of the complaint in the language used in the written submissions:

The meeting in question was held on 19 May 2008 and was attended by Mr Mullard and Ms Moloney (officers in the DPI) and Messrs Rampe and Bowman (representatives of Monaro Mining).

Because the focus of the challenge was on the finding (or lack of findings) in [1470], it is necessary to set out that passage from the judgment.

The written submissions were critical of an “apparent suggestion” by the trial judge that Mount Penny was not an area identified by Monaro Mining in its representation to the Department. [131] The submissions continued, stating that “[t]o the extent that the Trial Judge considered there was [no such suggestion], her Honour erred”. However, at [1467(5) and (6)] the judge noted evidence of Mr Rampe and Ms Moloney that Bylong Valley was discussed. On the other hand, at [1467(1) and (2)] the judge observed that the written text of Monaro’s presentation did not refer to the Bylong Valley or Mount Penny, and that the report prepared by Mr Bowman summarising the meeting and “did not mention the Bylong Valley or Mount Penny”. Mr Bowman gave oral evidence as follows: [132]

In finding that none of the areas discussed with Monaro Mining related to Mount Penny, the judge accepted, and gave reasons for accepting, Mr Bowman’s evidence. The suggestion of the possibility of error should be rejected.

Secondly, paragraph [1470] started with the statement that the reasons for the findings and lack of findings had already been discussed in the judgment. However, the appellants did not refer to earlier passages in support of this challenge; the only passages in the judgment referred to were paragraphs [1467] and [1470].

The submissions did, however, contain extensive references to the evidence of various witnesses, including Mr Gardner Brook, who was not at the meeting. The purpose of the submission was summarised in the following passage in the written submissions:

The evidence relied upon to raise this possibility was that Ms Moloney gave what was described in the submissions as “unchallenged evidence” that the Bylong Valley was one of the areas “being tossed around”. So much may be accepted: the judge expressly referred to that evidence at [1467(6)]. In the same passage, the judge referred to the evidence of Mr Bowman that there was no mention of the Bylong Valley or Mount Penny, the evidence of Mr Mullard that expressions of interest at that time did not relate to the Bylong Valley, and the evidence of Mr Bowman that he would have been “very surprised” if the Bylong Valley was discussed given the report he had furnished to Monaro Mining.

The statement that Ms Moloney’s evidence was “unchallenged” requires a degree of clarification. Counsel for Mr Macdonald cross-examined Ms Moloney to the following effect: [133]

The trial judge did not disregard the evidence of Ms Moloney, nor that of Mr Rampe of Monaro. She adverted to it, but preferred the evidence of Mr Bowman. The judge heard all four persons who attended the meeting giving evidence over several days of the trial. Given the lapse of time between the date of the meeting (May 2008) and the date of the trial in 2020, there were self-evidently serious issues of credibility and reliability in respect of the evidence. Where there was a conflict, as there was in the present matter, it was one which the trial judge was required to resolve, in so far as it could be resolved. She did so, and gave extensive reasons, referring to the evidence of each witness, in doing so. There is no substance in the challenge raised by the appellants in the terms set out above, by reference to the written submissions.

The fourth particularised act of misconduct related to the period between 8 May and 9 July 2008. It alleged that Mr Macdonald caused Mr Obeid Snr, Mr Moses Obeid, or another member of the Obeid family to be provided with a copy of the Wiles Maps No 1 and No 2. The first map was prepared by Ms Leslie Wiles and dated 9 May 2008; the second map was also prepared by her and dated 30 May 2008. The fourth matter raised under ground 5 was the finding by the trial judge that the fourth act of misconduct was established. The first passage in the judgment accepting that conclusion was the following:

The judge then embarked upon a consideration of the confidentiality attaching to the maps at the time they were provided by Mr Macdonald to a member of the Obeid family prior to a meeting in the Wentworth Hotel on 7 July 2008. Being unable to resolve that issue satisfactorily, the judge concluded that the provision of Wiles Map 2 involved a breach of duty of the Minister to act in a disinterested and impartial way. The judge determined:

So far as the challenge to the finding of the trial judge was concerned with the production of maps by Mr Macdonald to a member of the Obeid family, the submissions commenced:

The written submissions identified seven ways in which it was said that the trial judge “erred” and “appeared to” err, or otherwise failed to take some step in her reasoning. In this way the appellants sought to establish that the judge’s finding was not “open” on the evidence. Those aspects in which there was no error on the part of the judge identified apparent weaknesses in the evidence itself. It is necessary to address each of these matters in turn, although there appears to be a degree of overlap in the sense that one restates another point from a different perspective. Each of the first three grounds relates to the way in which the primary evidence was adduced. Thus, the prosecutor did not show Mr Gardner Brook a copy of the Wiles Map No 2 which was in evidence, but rather elicited a verbal description of the map from him.

The first complaint was that the trial judge “gave no weight” to the fact that he had not been shown the map by the prosecutor. While it is true that that was a forensic decision made by the prosecutor, to have shown him the map in his examination in chief, even after obtaining from him a description of the map, may have had a tendency to poison the well, so that cross-examination as to his memory would be subverted. One way of dealing with that problem might have been for the prosecutor to invite the accused to indicate whether they objected to her not showing the document to the witness or proposed to comment adversely if she did not. There is no suggestion that the prosecutor took such a step, but neither did any of the accused raise the matter.

The evidence as to the meeting at the Wentworth Hotel on 7 July 2008 (the second such meeting) extended over more than 60 paragraphs of the judgment. Mr Brook’s evidence was broken by a voir dire, in circumstances recounted by the judge at the beginning of the summary of the evidence:

These matters were explored on the voir dire and described by the trial judge at [1253]-[1258], two of which contained a number of subparagraphs. The outcome of the voir dire was that no ruling was made on admissibility, but the prosecutor was allowed to ask non-leading questions within a certain scope, following which the issue of admissibility would be revisited. That did not happen and the evidence “in the trial” was admitted whilst the evidence on the voir dire was available to the parties for the purposes of cross-examination. [134]

From the basis of objection by counsel for Mr Moses Obeid, it might have been inferred that further objection would have been taken had Mr Brook been shown (again) a copy of the map. The judge then noted that on resumption of his evidence in chief Mr Brook was not shown the map by the prosecutor in any of the forms which were then available. [135] Rather, he described the map and gave evidence of statements made by Mr Paul Obeid, having placed the maps on the table at the meeting. Having set out the extent of the evidence, the trial judge turned at [1301] to consider whether the fourth act of misconduct had been established. The judge observed:

The first complaint, that the trial judge gave “no weight” to the fact that Mr Brook was not shown the map is, in the circumstances, obscure. She took the fact into account in making her assessment of Mr Brook’s evidence. However, the real issue in dispute at the trial, as demonstrated by counsel’s objection prior to the voir dire, was that an earlier exposure had tainted the evidence given by way of description.

In substance, what followed in the written submissions was a complaint about the inadequacy of the description as a basis for satisfactorily identifying the map produced at the Wentworth Hotel meeting as Wiles Map 2. That submission was undoubtedly available and was made in the trial and addressed by the trial judge in her reasons. At no point did the submissions in this Court indicate what weight should have been given to the failure to produce the map to Mr Brook in the trial or, more importantly, how it should have affected the assessment of his evidence. The first complaint is without substance.

The second complaint in effect continued the submissions accompanying the first complaint, namely as to the adequacy of the description of the map as a basis for identifying Wiles Map 2. On the one hand, it was said that the description of the red hatched area as a “red or pink hatched area” to describe the most distinctive aspect of the map was misleading or misguided or inadequate. (The submission that it was “hardly distinctive when one thinks about mining maps” provided the court with little assistance as to what was to be inferred.) The fact that Mr Brook referred to it as containing the word “Bylong” but not the heading “North Bylong”, and the statement that it had “no measurements with respect to the resource or anything about mining that I could tell” was also said to render the description manifestly inadequate.

The quotation relied upon came from Mr Brook’s cross-examination. [136] However, the subject matter was obscure, the whole answer read as follows “[w]ell, the diagrams that they showed me, the maps that they showed me had no measurements with respect to the resource or anything about mining that I could tell. I didn’t understand mining at the time”.

The immediately preceding line of questions had dealt with “the topic of maps” and the description he had given to ICAC in relation to “any document relating to a tenement that was shown to you by Mr Moses Obeid or Mr Paul Obeid”. [137]

Having said that he believed he could remember how he first described such a document to the ICAC, the cross-examiner then put his own words to him and asked if it was correct. The words put to him were: [138]

There was no basis in the cross-examination to conclude that what was being described in the answer relied upon was Wiles Map 2. After some more specific questions, which assumed that there was a single document being described in the answer, Mr Brook conceded that he could not remember the document that he had been shown and was unable to answer specifically unless it were shown to him again. [139] This aspect of the criticism of the actual evidence was without substance. Whether the other omissions from the description of the document were significant was a matter addressed by the trial judge. Given the delay between the date of the meeting and even the date when Mr Brook last saw the Wiles Map 2, it is by no means clear that the omissions were significant. For someone like Mr Brook unfamiliar with mining maps and tenements, it seems entirely plausible that he would remember two names on the map which were close to the distinctive feature of the red cross hatching. It was the red cross hatching which indicated the area of the coal resource. The second criticism is without substance.

The third complaint was in slightly different terms, it related to the inadequacy of the description which Mr Brook had first given to the ICAC investigators in 2012 as a description of Wiles Map No 2. The two questions relied upon were as follows: [140]

That passage refers to two omissions from the description of a document which was not clearly identified to the witness, as explained above, except by the fact that the answer given further up the same page of transcript to “the diagrams” and “the maps” had been reduced by the cross-examiner to “the document”. The cross-examiner did not demonstrate that the document in question was Wiles Map 2, either to Mr Brook, or to the Court. The third criticism takes the matter no further.

The submissions for the appellant noted that Wiles Map 2 “was not a printout of a tenement, did not show boundaries of a tenement” and did not show “many exploration licences”. One might have drawn the inference from that fact that the document which Mr Brook was describing to the ICAC investigator was not Wiles Map 2.

To the extent that the cross-examination was significant, the claim that the judge made no reference to it might be important. However, the brief cross-examination did not establish the point now sought to be relied upon.

The nature of this challenge was somewhat confusingly identified in the appellant’s submissions. Two propositions, however, were clear: the first was that there were real problems with the reliability of Mr Brook’s evidence; the second was that the problems affected the reliability of his identification of the Wiles Map 2. The evidence as to the map was described as having been treated by the prosecutor as “tantamount to … identification evidence”, so as to require a warning “compliant with s 165 of the Evidence Act”. Although the submissions commenced with the proposition that it was “unclear to what extent the trial judge gave herself a warning in relation to Gardner Brook’s evidence despite accepting that it was appropriate to do so (and in one respect stating that she had done so)” [141] at other points it appears to have been accepted that she did give herself a warning but the warning was inadequate as to “the extent of the risks involved with the evidence in question”. [142]

The trial judge dealt with the evidence of Mr Brook in several passages and at some length. The reasoning commenced with a heading, “[t]he issue of Mr Brook’s credibility on the question whether Wiles Map 2 was produced at the second Wentworth Hotel meeting and more generally”. That discussion ran from [1318] to [1331]. The judge returned to the question of “Mr Brook’s credibility and reliability” in a passage from [1767]-[1780]. In the intervening 400 paragraphs, there had been frequent references to Mr Brook’s evidence and to contemporaneous documents, including memoranda and emails. There is no doubt that the judge understood the significance of Mr Brook’s evidence, particularly in relation to the fourth and fifth acts of misconduct and also understood the strength of the challenges to his credibility and reliability. As the judge noted:

Despite the importance of this topic to the case of the appellants generally, there is limited benefit in setting out the detail of the submissions. Thus, criticisms that the judge did not deal with an issue at one point in her reasoning are in several cases answered by the fact that she dealt with it expressly in another passage. For example, in dealing with the second passage referred to above, the submissions stated that “[w]hile it was not stated by her Honour, the evidence [of unreliability] included inter alia”, followed by a list of five matters. Given that the evidence referred to was identified by the trial judge at other points in her reasons, the submission was unhelpful.

The following passages in the judgment are relevant in this respect:

These passages refer (though in less detail than that provided in the written submissions of the appellant) to each of the five matters identified as not having been “stated by her Honour”.

With respect to the proposed warning, the judge stated:

Further matters were then put to one side for later consideration:

The judge returned to the issue in a lengthy consideration in chronological order of the various steps taken from the time Mr Brook was introduced to Mr Moses Obeid on 2 July 2008 through to the end of his dealings with Cascade Coal in September 2010. The events after a third meeting with Cascade Coal on 1 June 2009 [143] were not important. Further, the attempt by Mr Brook to have his employer, Lehman Brothers, fund the Monaro Mining proposal through a scheme which had been rejected by Mr Brook’s superior in Lehman Brothers on 23 July 2008, through to the collapse of Lehman Brothers on 15 September 2008 was suggestive of a degree of duplicity, but was not treated as a basis to disbelieve his evidence at the trial.

The appellant had submitted that, consistently with authorities on the identification of an object or thing of importance to the prosecution, the judge was required to give herself a warning in accordance with s 165 of the Evidence Act. There is no doubt that the judge was conscious of that submission, noting in a footnote to [1323] that counsel for Mr Moses Obeid had drawn her attention to the principles stated in Fennell v The Queen [144] “where the Court acknowledged the fallibility and plasticity of memory and the possibly of contamination of recollection and the influences of internal bias on memory and R v Clout [145] where Kirby ACJ addressed the need … for the jury’s attention to be drawn to those considerations where the evidence was not ‘peripheral’.” The same authorities (with the addition of Domican v The Queen [146] ) were identified in the written submissions as the basis for the contention. The matters about which it was said that the judge ought to have warned herself in relation to Mr Brook’s evidence were:

In introducing those matters, the submissions stated: [147]

That was simply not true. Not only did the judge expressly accept the principle stated in the cases identified above, but she dealt at some length with questions of reliability and credibility, as explained in the passages set out above. In particular, the dangers of contamination were discussed.

First, three factors should be noted regarding warnings to be given in relation to “unreliable evidence”. Section 165(2) requires that a warning is to be given to a jury that evidence may be unreliable, to inform the jury of the matters that may cause it to be unreliable and warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it, if there is a jury and the party so requests. The obligation under s 165(2) is extended to a judge alone trial by s 133(3) of the Criminal Procedure Act. It is apparent from the written submissions filed for Mr Moses Obeid that such directions were sought. [148]

Nevertheless, the obligation to comply is not engaged if “there are good reasons for not doing so”: s 165(3). Further, no particular form of words is required in giving warning or information: s 165(4). The judge recognised that, despite the submissions, s 165(1)(b) was not engaged: this was not “identification evidence” as defined in the Dictionary to the Evidence Act, which was why the judge referred to “a direction akin to a warning about the unreliability associated with identification evidence”. While the matters set out in s 165(1) do not exclusively state the forms of unreliable evidence to which the section applies, evidence identifying an accused person has long been a special concern of the law of evidence.

That the judge was alert to the possible need for a warning is clear, not merely from the headings to the sections in the judgment identified above, but also from the content of the reasons. The judge had considered, at [1322] set out above, the request by defence counsel for a warning “under s 165 of the Evidence Act (in the manner provided for in s 133 of the Criminal Procedure Act where I am sitting without a jury)”. In noting resistance to giving herself “a direction akin to a warning about the unreliability associated with identification evidence in s165(1)(b) of the Evidence Act (in this case the identification of an inanimate object)” being the Wiles Map 2, the judge noted the difficulties arising from both potential contamination and the willingness of Mr Brook to act against the Obeids. As that appeared to give rise to an “improved” memory of the second Wentworth Hotel meeting, the judge gave herself a warning (at [1327]) of the risks “that are attendant upon an investigator, even with the best intentions, suggesting to a prospective witness the information that person might provide”. The judge further noted that the warning had special meaning in the case of a witness “who is either vulnerable to suggestion or inclined to take up a suggestion offered to them, whether in doing so they are motivated by a genuine desire to assist investigators or to ingratiate themselves with investigators”. The judge also noted that although on one view Mr Brook might have been seen to be a co-conspirator, that case was not pursued by the prosecution and the judge noted that the accused did not seek a direction under s 165(1)(d) of the Evidence Act with respect to a witness “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”. [149]

In numerous ways, some of which have been identified above, the judge rejected much of Mr Brook’s evidence as unreliable or disingenuous. However, Mr Brook himself accepted that he had been dishonest in numerous respects. [150] He agreed that he might have been drunk in the course of one of the Wentworth Hotel meetings, but did not admit to telling lies in either of the meetings, “neither was it put to him that he did”. [151] The judge made further adverse findings in the following terms:

After referring to his “capacity for mendacity” and the “patent evidence of his duplicity”, [152] the trial judge then concluded:

As has been discussed above, compliance with the obligation under s 133(3) of the Criminal Procedure Act may be established, not merely by the statement of a warning, but by passages in the reasons which demonstrate explicitly that such warnings were taken into account.

Criticism that a statement as to how issues of unreliability have been taken into account after reaching critical findings is to put the cart before the horse, should not be accepted. It is, of course, true that warnings must be stated to a jury, both in abstract terms and by reference to the specific evidence, all of which will precede consideration and determination by the jury. A judge giving a reasoned decision, however, may approach the matter in a different way. To describe the process in advance may attract criticism that the judge has undertaken a box ticking exercise; to explain a process of reasoning in reaching findings which have already been set out may attract criticism as justification after the event. Neither criticism is necessarily correct. As has already been noted, in seeking to address all relevant matters in an orderly fashion, the judge frequently adopted a sequential approach with pauses to summarise the stage reached and where the reasoning was about to go.

With respect to the unreliability of Mr Brook, the judge properly had regard to all the issues, addressed the manifold criticisms of Mr Brook’s evidence, applied the necessary degree of scepticism and detachment required by the warnings, and explained the process of reasoning. Further, as noted above, the obligation under s 165(2) is qualified, allowing for (indeed, requiring) the exercise of discretion. Subject to consideration of the final criticisms of the judge’s findings with respect to the fourth act of misconduct, sub-ground 5(5) must be rejected.

Again, the nature of the ground was articulated only in the written submissions. Their focus was upon the finding in the following passage in the judgment:

The submissions were two-fold. First, it was said that the trial judge “appeared to satisfy herself of the reliability of Gardner Brook’s description of the map based on a single fact”, namely the reference to the contiguous area referred to in the first sentence. Secondly, her reliance on that matter was said to be “objectively wrong and manifestly inconsistent with the Crown case”.

Neither of these criticisms is easy to understand. The matter was dealt with in the course of oral submissions, with little by way of explication. Senior counsel for Mr Moses Obeid stated: [153]

The appellant submitted in writing: [154]

The support for these propositions was evidence given by Harold Bowman, who was called by the prosecutor. The relevant passage in Mr Bowman’s evidence was as follows, commencing with a question as to what the term “contiguous” meant to him: [155]

If by characterising the evidence of Mr Brook as “objectively wrong” the appellant meant that he was not using the term as a miner would, the criticism is misconceived. First, Mr Brook gave evidence that, in his first conversation with Mr Moses Obeid he had told him in answer to his question that he did not have any experience in natural resources. [156] He also said that in the first interview Mr Moses Obeid referred to it as “thermal coal” and said “that meant nothing to me at the time …. I didn’t understand anything about natural resources or coal”. [157] There was therefore no reason to assume that Mr Brook was using the term “contiguous” in the way that a member of the Department of Primary Industries would have used it.

Secondly, in the evidence to which the judge was referring, being an interview conducted with Mr Brook in private session at the ICAC on 28 November 2012, [158] Mr Brook had marked an area on a map as being an area indicated by Moses and Paul Obeid at the meeting:

It was correct, as the trial judge noted, that no part of the prosecution case involved a suggestion that the Obeid family would obtain access to any coal reserves beyond those under the proposed exploration licence. However, there is no reason to support that the trial judge misunderstood that aspect of the evidence.

It was also submitted that there was an inconsistency between Mr Brook’s evidence in this respect and the evidence of Mr Grigor, who was a director of Monaro Mining in 2008. Mr Grigor was asked whether he understood there to be a “contiguous area in respect of the Mount Penny” [sic]. [159] He said that there had been a discussion of contiguous rights when the possibility of Chinese parties was raised. [160] That was some time after the second Wentworth Hotel meeting. However, the second Wentworth Hotel meeting did not involve Mr Grigor: rather there was an unexplored inference that had there been a discussion of a much larger body being involved, one would expect that to have been raised with Monaro Mining.

This Court was not taken to any attempt to explore that issue with any witness. Raising the matter as a possibility on appeal does not assist in demonstrating that the judge’s finding was not reasonably open.

This aspect of the factual challenge must be rejected.

Because Mr Gardner Brook referred to the concept of a “contiguous area” with respect to “another map that was never produced in evidence” there was a “clear prospect of there being another map or alternatively that the Wiles Map was not obtained until sometime in 2009 in a way unrelated to Macdonald”. [161]

As the appellants noted, the issue was not overlooked by the trial judge but was identified in the following passage:

The appellants asserted that the judge did not return to that issue. Nor, in noting the fact that it had been raised in the written submissions for Mr Moses Obeid did the judge indicate what its significance was. The paragraph in the submissions appeared under a heading “Wiles Map 2 not shown to Brook”. A number of points were raised under that heading in support of the proposition that the prosecutor had not proved that Wiles Map 2 was shown to Mr Brook. The submission was in these terms: [162]

Both the cross-examination of Mr Brook on this topic and the submission were speculative and raised no significant basis for disputing Mr Brook’s evidence as to the map he had seen at the second Wentworth Hotel meeting.

The document Mr Brook was shown was annexed to a letter to him dated 5 June 2009 from Cascade Coal and executed as an agreement by Mr McGuigan for Cascade Coal and Mr Brook for Buffalo Resources Pty Ltd. The text of the letter proposes a joint venture with respect to the Mount Penny coal release area and stated that:

Mr Brook denied that the map which appeared in the appeal book was the appendix to the original Buffalo Cascade document. The answer was at least plausible. It is difficult to identify in the document produced to this Court any reference to EL 6676. The thrust of the cross-examination moved from the identification of the document to the intended meaning of “contiguous area”. The cross-examiner asked: [163]

It was a proposition put in the defence case that Mr Moses Obeid understood references to the “contiguous area” to mean small areas under Cherrydale Park which were contiguous to the western-most boundary of the Anglo authority.

The cross-examiner did not establish the existence of a second map, which would have supported the speculation put in closing submissions.

The complaint that the judge made nothing of the written submissions does not establish that the finding in relation to the Wiles Map 2 was not open to her. Sub-ground (6) must be rejected.

The gravamen of this complaint was that Mr Paul Obeid, who was present at the second meeting at the Wentworth Hotel, was not called by the prosecutor. Further, Mr Gerard Obeid was not called, although the map had been found in Mr Paul Obeid’s office in an envelope marked “to be collected Gerard Obeid”. [164] Finally, the appellants noted that no evidence had been called from anyone from Cascade Coal with respect to identifying the map attached to the agreement in 2009, the subject of the last sub-ground. Emphasis was placed however, on the absence of Mr Paul Obeid “who had possession of the map shown to Gardner Brook (whatever map that was) and the version of Wiles Map 2 seized in his office in November 2011”. The absence of these witnesses, and in particular Mr Paul Obeid, was used to challenge the finding that the judge was satisfied there was no reasonable possibility that the map was obtained by him from any other primary source than Mr Macdonald. [165]

This matter was the subject of consideration in relation to ground 3(4). No different issue arises with respect to this ground.

The eighth act, said to have occurred on or after 23 July 2008, alleged that Mr Macdonald caused a member of the Obeid family to be provided with a single page memorandum headed “Medium Coal Allocation Areas” and a map titled “Proposed Coal Release Areas for EOIs” prepared by Mr Fred Schiavo and dated 21 July 2008. [166]

The judge’s discussion of this issue commenced when dealing with the sixth act of misconduct. The sixth act of misconduct involved a period of some 4-5 weeks prior to 23 July 2008 and an allegation that Mr Macdonald communicated to the Obeids that the EOI process for Mount Penny would commence at the end of July 2008. The judge rejected that particular on the basis that she was not satisfied that, consistently with the prosecution case, Mr Macdonald would have caused misleading information to be sent to either Mr Obeid Snr, or Mr Moses Obeid. The judge concluded that by 7 July 2008, Mr Macdonald was aware that “the EOI package for small and medium areas, including Mount Penny, would be prepared by 21 August 2008 and that Mount Penny would be released to EOI in November 2008”. [167]

Significantly, however, the judge accepted that there was a meeting held at the Minister’s office on 17 June 2008 attended by Mr Macdonald, Mr Gibson, Mr Mullard and Ms Romano. [168] Further:

A map which had been prepared by Ms Moloney and sent as part of the Ministerial Briefing on the previous day (16 June) included a coal release area headed “Mount Penny” and described as an “estimated opencut resource of 100Mt”. [169] This was the point at which the first mapping of what became EL 6766 was produced:

Importantly, given the nature of the process, the judge observed:

After concluding that she was not satisfied that the sixth act of misconduct was established, [170] the trial judge continued:

The judge then referred to the retaining of Mr Rumore, as solicitor to act for the Obeid family:

On 30 June 2008, Mr Moses Obeid attended a meeting at Mr Rumore’s office introducing Mr Fang of the Tianda Group as a replacement for the proposed arrangements with the Boyds. [171]

The trial judge then outlined the “periods of concentrated communication (or assumed communication) between each of the accused and Mr Fang during that period”, identifying 3 June, 4 June (being the date of a meeting between Mr Macdonald and the Department) and 6 June (being the day of another meeting between Mr Macdonald and the Department) and then numerous communications, virtually daily, from 26 June through to 4 July, including up to 20 communications per day. [172]

The trial judge considered and rejected a submission by counsel for Mr Moses Obeid that Mr Fang and Mr Moses Obeid knew each other prior to the conference on 30 June and that Mr Fang was not introduced to Mr Moses Obeid by Mr Macdonald. [173]

Turning to the eighth act of misconduct identified by reference to the period from 23 July, the judge summarised the situation leading up to that period in the following terms:

The events of 23 July commenced with a briefing paper prepared by Ms Moloney identifying the issue as “Ministerial approval to release Expressions of Interest packages for coal allocation areas”. [174] It included the Schiavo Map 3. [175] As the judge noted, Mount Penny was one of four “medium coal allocation areas”, being “the only one … in the Western Coalfield”. [176] There were eleven small to medium areas released for tender on 9 September 2009. Schiavo Map 3 is annexure B to these reasons. [177]

The Ministerial Briefing was emailed to Mr Gibson on 28 July 2008. [178] As to receipt by the Minister, the trial judge made the following finding:

Significantly, the EOI package published on 9 September 2008 did not contain Schiavo Map 3, nor did an updated package published in January 2009. [179]

On 5 August 2008, Mr Alan Coutts, the executive contact for the Ministerial Briefing, prepared a memorandum which included an annotated duplicate of Schiavo Map 3 and a page titled “Medium Coal Allocation Areas”. [180] The page is set out in full by the trial judge at [1583]. It referred to four allocation areas, one of which was Mount Penny. The judge noted that neither Dr Sheldrake, who had been the recipient of Mr Coutts’ 5 August memorandum, as Director-General of the Department, nor Mr Gibson (from the Minister’s office) could recall seeing the Coutts’ memorandum or discussing it with the Minister. [181] The judge then referred to the evidence of Mr Mullard:

The appellants’ case in respect of the eighth act of misconduct is that there was a reasonable possibility that Mr Brook obtained the document from someone at Monaro Mining, leaving open a reasonable possibility that the document was not obtained by Mr Moses Obeid from Mr Macdonald. That case requires reference to Mr Brook’s evidence, which provided limited support for this possibility. Further, it may be doubted, in the history of the events from 9 May until 9 September 2008, this was a critical step. It was not submitted that the eighth act of misconduct was an indispensable step in reaching a verdict of guilty and, accordingly, it is not sufficient for the appellants to raise a reasonable possibility consistent with an innocent explanation: they must demonstrate that the finding was not open on the evidence.

Turning to Mr Brook’s evidence, the judge summarised the evidence in the following passages:

Then, in a passage with which the appellants take issue, the judge continued:

In the course of cross-examination, counsel for Mr Moses Obeid referred Mr Brook to evidence he had given before the ICAC on 27 November 2012 in which he had been asked from whom he got the map and said, “I believe it was Monaro Mining…”. [182] When asked if those answers were correct, he responded: [183]

He was then taken to evidence he gave about a list of areas to be the subject of the EOI process: [184]

It was then put to him that at the ICAC hearing he had said that he “either received that from Monaro or Moses”. He agreed that answer was correct. [185] However, when pressed that he obtained it from Monaro, he responded: [186]

The judge then explained her finding at [1591]:

The appellant submitted that the judge’s finding at [1593] “materially misstates the evidence given by Brook” and that she either “misconceived the import of the evidence or disregarded it”. Either way, it was said that the finding was not open. [187]

Neither the criticisms, nor the conclusion, should be accepted. The judge neither misconceived the evidence nor disregarded it. The footnote to the first sentence of [1590] referred to the same two pages of the transcript as those relied on by the appellant. Further, the finding at [1593] followed a discussion at [1592] of which the appellant was also critical. The appellant submitted that the finding at [1592] was not open because the onus of proof lay on the prosecutor and she had failed to ask questions of the witnesses from Monaro Mining.

The prosecution called two witnesses from Monaro, Mr Rumore and Mr Grigor. It was no part of the prosecution case that Monaro provided Schiavo Map 3, or the Coutts memorandum, to Mr Brook. If that had been the appellant’s case, it was open to him to cross-examine each of those witnesses to suggest that that had happened. The judge’s finding that there was “no evidence” that anyone at Monaro Mining had ever had copies of Schiavo Map 3 or the page from the Coutts memorandum was correct. On that basis, the conclusion at [1593] was not only open, but was the more plausible explanation in the circumstances.

The final attack on the finding with respect to the Schiavo Map 3 disclosure related to evidence given by Mr Brook that he had provided documents to a Mr Yin (an agent for a Chinese company) after the EOI process became public. The submissions suggested that it was “not clear how the documents could have been confidential at that point in time”. That proposition is both true and irrelevant. The unstated inference appears to be that Mr Brook might have obtained the documents from an available public source at that point in time. Even if that were the inference sought to be drawn, there was no explanation as to why that was relevant, nor was it said to have been relied upon by the trial judge. The submission should be disregarded.

It follows that the challenge to the judge’s finding with respect to the source of the Schiavo Map 3 and the Coutts’ memorandum must be rejected. Ground 5 is therefore rejected.

Common ground 2 was that “the verdicts were unreasonable or unable to be supported by the evidence”. The written submissions for Mr Moses Obeid identified seven bases upon which he sought to invoke the unreasonable verdict limb of s 6(1). They were:

Mr Macdonald’s written submissions contained a similar list of seven “reasonable hypotheses” not excluded by the Crown, which were identified as:

Of these, (a), (b) and (d) each reflected submissions made by Mr Moses Obeid. That was acknowledged and his submissions adopted. [188]

Mr Obeid Snr’s notice of appeal included a further sub-ground 2a:

There appeared to be two limbs to this sub-ground, namely a failure to comply with s 133(2) of the Criminal Procedure Act, and, separately, a failure to address certain (unspecified) submissions. The written submissions for Mr Obeid Snr identified a failure to exclude hypotheses consistent with innocence, identifying the following hypotheses: [189]

Apart from a challenge to the reasoning process of the trial judge (“reasoning backwards”) each of the complaints was directed to a finding which, it was submitted, ought not to have been made. That was so with respect to Mr Macdonald’s list of “reasonable hypotheses” which had not been addressed and which related to particular aspects of the conduct said to constitute either the basis of the conspiracy or the acts undertaken in pursuance of the conspiracy. The submissions did not in terms identify the cumulative effect of these particular errors, which might have provided a basis in principle for contending that there was a reasonable doubt as to the ultimate verdicts in each case. As a result, there was considerable overlap between the submissions made under ground 2 and those relating to specific findings of fact, particularly as identified in ground 5. More importantly, raising reasonable hypotheses consistent with innocence in relation to specific intermediate findings ignores the nature of a circumstantial case. It will be convenient to return to this matter in addressing the challenge to the reasoning of the trial judge.

The formulation of the particulars of the ground being problematic, it is necessary to identify the applicable legal principles.

The relevant legal principles encompass two subjects. First, there is the correct approach of a court of criminal appeal dealing with a challenge to a verdict of guilty of an indictable offence under the first limb of s 6(1) of the Criminal Appeal Act, namely that the verdict “should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence”. Secondly, there is the correct approach of a court of criminal appeal to factual challenges where the trial has been conducted by a judge alone who has given reasons setting out her findings of fact and reasoning process. By way of contrast, a trial by jury will usually allow little scope for challenges to the fact-finding process, other than a challenge to the verdict itself under the first limb of s 6(1), because the jury’s reasoning is not transparent and it cannot be known what aspects of the evidence were rejected, what intermediate findings were made, and what inferences were drawn.

The established principle as to the unreasonable verdict ground is that the court should determine whether it entertains a reasonable doubt as to the guilt of the accused. As to a judge alone trial, the established principle is that the appeal is not an appeal by way of rehearing and thus turns on the evidence and law as applicable at the time of the trial.

In considering the first area it is important to keep in mind the structure of s 6, which contains three limbs and a proviso:

As stated in M v The Queen, [190] a court of criminal appeal considering a challenge under the first limb of s 6(1) must undertake an "independent assessment of the evidence, both as to its sufficiency and its quality". [191] The direction in s 6(2) is subject to the power of the court to direct a new trial rather than enter an acquittal:

Where the appeal court holds that a verdict is unreasonable, there will be few if any circumstances in which the proviso in s 6(1) could be engaged, or in which the possibility of a new trial will arise. In other cases, both issues may be live and may need to be addressed. The question is whether there may be such cases if factual challenges can arise under the third limb in s 6(1) (a miscarriage of justice on any other ground). If discrete factual challenges are available under that ground, both the proviso and the power to order a new trial may be engaged. Further, the parties drew no bright line between the challenges based on the unreasonableness of the verdicts (ground 2) and the consequences said to flow from success on the challenges to particular factual findings raised by common ground 5.

Turning to the second area, the obligations imposed on the trial judge undertaking a trial without a jury are set out in s 133 of the Criminal Procedure Act:

There are three observations to be made in relation to the language used in s 133. First, although it is commonplace to refer to findings of fact, the term “finding” in s 133(1) is equated with the verdict of a jury. It must therefore refer to the ultimate finding of guilt or innocence, in the absence of any form of special verdict. This construction was accepted in the joint reasons in Fleming v The Queen [192] and reiterated in Filippou v The Queen. [193] However, somewhat unhelpfully, s 133(2) refers to “findings of fact” on which the judge relied, which must identify findings of primary or intermediate fact on which the judge relied for the ultimate “finding” which is equated to a verdict. The purpose of s 133(2) is not to give such findings of fact any particular status, but to require that the judge set out the findings of fact in a “judgment”, meaning the reasons for judgment. [194]

Although there was no express challenge with respect to identified aspects of the adequacy of the judge’s extensive reasons , in terms of their compliance with s 133, it is important to note the scope of the obligations imposed on a judge conducting a judge alone criminal trial, both under s 133 and under the general law.

Since January 2011, orders for trial by a judge alone and applications for such orders have been provided for in ss 132 and 132A respectively of the Criminal Procedure Act. Prior to that time, and since amendments in 1990, the equivalents of ss 132 and 133 of the Criminal Procedure Act were found in ss 32 and 33 of that Act. A number of issues concerning the operation of s 133 (then s 33) were settled by the High Court in Fleming. In relation to s 33(1), the court in Fleming observed, in relation to the phrase “on the question of the guilt” of the accused:

By parity of reasoning, the term “findings” will encompass ultimate findings as to each element of the offence charged.

The appellants did not take issue with the statement by the judge as to the principles of law which she applied, or as to the statement of the findings of fact on which she relied. Nor did the appellants take issue with the implied obligation to explain in the reasons the warnings which had been taken into account in accordance with s 133(3).

Bearing in mind these aspects of the operation of s 133, it is convenient to return to the nature of the appeal against conviction under ss 5(1) and 6(1) of the Criminal Appeal Act with respect to a trial by a judge alone.

The High Court in Fleming referred to statements by Hunt CJ at CL both in R v Kurtic [195] and in R v O’Donoghue, [196] to the effect that the appeal under the Criminal Appeal Act was “not by way of rehearing” and that the court had no power “to substitute its own findings for those of the trial judge” and that to demonstrate error it was necessary to show that there was “no evidence to support a particular finding, or [that] the evidence is all one way, or [that] the judge has misdirected himself”. [197] The last phrase may be taken to refer to a misdirection as to the facts, as a misdirection as to the law will fall within the second limb of s 6(1). [198]

Fleming involved a failure on the part of the trial judge to record, and it was inferred apply, a relevant and significant warning. At least in that circumstance, the Court considered it unhelpful to seek to discriminate between the nature of an appeal under the Criminal Appeal Act and the nature of an appeal “by way of rehearing”. [199] Rather, the Court noted that the failure in question constituted an error of law and a miscarriage of justice for that reason. [200] However, importantly for present purposes, the Court stated:

Addressing the requirement in M v The Queen that the court undertake an "independent assessment of the evidence, both as to its sufficiency and its quality", Filippou and Dansie set out the approach to be followed by the court where an accused has been convicted after a trial before a judge alone (with the consequence that the trial judge’s reasons for the guilty verdict are before the appellate court).

The joint reasons in Filippou explained that the Court of Criminal Appeal is required to deal with an appeal from a judge alone trial in three stages:

The first stage appeared to encompass error under any of the three limbs of s 6(1). A question had been left open in Fleming as to whether and when the appeal court should intervene under the first or third limb of s 6(1) of the Criminal Appeal Act. [201] The joint reasons in Filippou sought to address that question:

It is not entirely clear why a misdirection on a matter of law would not be dealt with under the second limb, [202] a distinction which will have consequences for the application of both the proviso and s 8. [203]

What followed in Filippou, which is of importance in the present case, requires reference to the grounds of appeal in Filippou in this Court which were set out by the High Court:

This Court found that the trial judge had committed the three factual errors identified in ground (1). The High Court identified the correct approach to be taken in that circumstance in the following terms:

Although the reasons of this Court may not have been expressed in precisely the terms required by M v The Queen, on one view, adopted by Gageler J, [204] this Court having found error had proceeded to determine whether it entertained a reasonable doubt as to the guilt of the accused (although the joint reasons viewed it as dealing with the matter as if by way of rehearing). The explanation for this Court treating the matter in that way may have been that ground (1) expressly invoked the first limb of s 6(1). However, having identified this as the wrong approach, the joint reasons then considered whether it should allow the appeal and remit the matter to this Court for redetermination, or whether the appeal should be dismissed. The High Court adopted the latter outcome on the basis that the alleged errors of the trial judge were not indeed errors. In other words, in circumstances where an appeal ground invokes the first limb of s 6(1), but on the basis of specific errors, if the errors are not made out, there is no obligation on the appeal Court to review the whole of the judgment to determine whether it entertains a reasonable doubt. The joint reasons explained the approach which should be taken to the first of the factual errors in the following terms:

The High Court concluded that two of the errors were not in fact made out and that the third was, in that circumstance, “of no consequence”. [206] It followed, if the findings were reasonably open, that there was no miscarriage of justice within the meaning of the third limb.

What was not decided in Filiippou, perhaps because it was not necessary, was whether each of the alleged errors was an error in determining a necessary element of the defence of provocation. The joint reasons had earlier explained that “[t]he third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial”. [207] However, Gageler J, who wrote separately, did address this point in principle:

This passage suggests that, for the purposes of reviewing a judge’s reasons in a judge alone trial, the appeal court does not ask whether a factual finding was open to the trial judge, but whether the trial judge made an error of fact in arriving at an intermediate finding of fact. However, Gageler J also stated:

In the present case, ground 2 was not expressly articulated by reference to specific errors of fact; ground 5, however, was so articulated. In order to determine ground 5 it was therefore necessary for the Court to proceed on the basis that the appellants must demonstrate that the findings were not reasonably open. In relation to ground 2, the question is whether the Court entertains a reasonable doubt as to the ultimate finding of guilt, or as to any essential step bearing on that finding. How then, is the latter exercise to be undertaken?

Further clarification as to the appropriate appellate process was supplied in the joint judgment of the High Court in Dansie in which it was stated that:

Later in the reasons, the Court said:

The decision of the Court of Appeal of the Supreme Court of South Australia was overturned. The High Court emphasised that Livesey J (with whom Parker J agreed) erred in his conception of the “limited nature of his own fact-finding role”. [212] The Court also emphasised the importance of the appeal court making an “independent consideration of whether the evidence left open reasonable hypotheses consistent with innocence”, [213] pointing out that what was required was “more of each of its members than mere satisfaction as to lack of error in each of the findings of fact made by [the trial judge] in arriving at that finding of guilt”. [214]

At the request of the Court, the parties prepared a comprehensive schedule of factual findings which were (i) not challenged, but relied on by the respondent; (ii) challenged by the appellant; and (iii) neither relied upon nor in dispute. The intention underlying the request was to provide a basis for applying the reasoning in Dansie. The second category contained 72 supposed findings of fact which were challenged; by contrast only a small number of uncontested findings were identified. The exercise failed to narrow significantly the scope of the exercise required under ground 2.

Each of the appellants listed arguments in support of the submission that the verdicts were unreasonable. As has been noted, there was significant overlap between the lists and also overlap with the specific grounds which have already been dealt with including, particularly, the challenge to factual findings pursuant to ground 5.

The fact that this was a largely circumstantial case has two consequences, operating in different directions, for consideration of the unreasonable verdict grounds. First, to establish that particular findings leave open a reasonable hypothesis consistent with innocence (and thus permit a reasonable doubt) will not be a sufficient basis for setting aside a verdict unless the Court is satisfied that having regard to all of the circumstantial evidence, the doubt remains. On the other hand, rejection of a challenge to specific findings on the basis that the findings were open to the trial judge may not preclude the formation of a reasonable doubt as to the outcome. Thus, the rejection of the specific challenges, for example in ground 5, will not preclude the formation of a reasonable doubt as to the verdict. Accordingly, ground 2 requires a broad review of the evidence.

There were numerous passages in the submissions which purported to challenge the reasoning of the trial judge, but which diverted into challenges to particular findings. [215] The thrust of the submissions in relation to an unreasonable verdict ground was often difficult to discern. Thus, a failure to provide reasons may constitute a breach of s 133(2), and thus an error of law, by force of the exegesis in Fleming at [28], that it is not sufficient for the judge to record findings of fact as material to support the verdict, without exposing the process of reasoning by which those findings were reached. However, the present purpose was not to identify an error of law. Further, despite the breadth of the language in Fleming, it may be doubted that there was an obligation to give reasons which were not the reasons of the trial judge. Thus, as explained in a civil context, [216] the obligation to give reasons is limited to the actual reasons of the judge and does not encompass a theoretically available set of reasons which were not those in fact adopted. If there is a gap in the reasoning, it may demonstrate error of a different kind, rather than a failure to comply with an obligation to give reasons. It may, for example, demonstrate a misunderstanding as to the relevant principles to be applied, or the nature of the case presented by one party. However, as explained by Simpson AJA in Mohana v R, [217] a complaint of inadequate reasons or inadequate fact-finding, where coupled with an unreasonable verdict challenge which is determined by the Court, may lack utility.

In dealing with an unreasonable verdict ground, in a circumstantial case, the Court is not concerned with the adequacy of reasons, but rather whether the evidence supports the ultimate verdict. In considering the evidential support for the necessary findings, the appellants submitted that this Court was in almost as good a position as the trial judge, because there was limited reliance on oral testimony. However, that submission overstated the position of this Court. First, the Court does not have the benefit enjoyed by the trial judge of considering this matter over 77 days of hearing, with time for reflection between hearing days scattered over 12 months. Secondly, and in similar vein, it does not have the benefit of close attention to the documentary evidence over a similar period. Thirdly, although it is undoubtedly true that some witnesses were more significant than others, the trial judge heard from about 40 witnesses, some of whom gave evidence of considerable significance, including Mr Cherry, Mr Mullard, Mr Gibson, Mr Rumore, Mr Grigor, and Mr Brook. Further, there are real difficulties in deciding how an appellate court entertains a reasonable doubt following a 77-day trial with a transcript of over 3,000 pages, where the main exhibit, Ex A, alone exceeded 7,500 pages. It is clearly not possible for the appeal court to review the case as a whole, and to attempt the task is to risk conducting a rehearing on the papers. In Fox v Percy, [218] albeit an appeal from an appeal by way of rehearing, the High Court affirmed the long-recognised practical reasons for caution in re-assessing fact-finding by a trial judge. To recognise the practical issues is not to diminish the statutory right of a person convicted in a judge-alone trial to challenge the verdict on the ground that it is unreasonable or unsupportable on the evidence. Indeed, the opportunity may be greater where reasons have been provided than with an inscrutable jury verdict: the appellate court’s focus on the evidence does not require it to disregard the judge’s reasons, which may demonstrate that an apparent inadequacy in the evidence is not to be explained away.

Without determining whether they were properly agitated under ground 2, it is appropriate to address two challenges to the judge’s reasoning process. First, it was said that the judge indulged in “retroactive or backwards reasoning”. [219] This was variously described as “dangerous” and “alarming”. However, as the respondent submitted, “overt acts will often be relied upon as a means of proof of the existence of a conspiracy”, [220] so that such reasoning will be both inevitable and appropriate. Further, it would be an error to consider parts of the evidence in isolation without regard to the coherent whole. [221]

That last submission is consistent with long-established principle. In The Queen v Hillier, [222] Gummow, Hayne and Crennan JJ (Gleeson CJ agreeing) stated:

The point was reiterated in The Queen v Baden-Clay: [223]

Secondly, an underlying theme of the submissions, and particularly those of Mr Macdonald, who phrased the sub-grounds of ground 2 in this manner, was that the judge failed to exclude rational hypotheses consistent with innocence. Mr Macdonald identified seven rational hypotheses which were said not to have been excluded. However, the substance of each matter was an assertion that a particular finding of fact was erroneous, or could not be upheld on the evidence. The better way to approach these challenges under ground 2 is to identify the critical facts, especially those which were elements of the offence, or indispensable findings, and consider to what extent the prosecution case may be seen to fall short by reference to the evidence. The particulars of ground 2 will be identified as they are addressed; at the conclusion of this exercise, it will be appropriate to return to the sub-grounds to address any which remain unresolved.

It was common ground, and perhaps not surprising, that there was no “direct” evidence of the formation of the unlawful conspiracy by reference to events preceding 9 May 2008. There were, however, circumstances which permitted an inference to be drawn as to the opportunity for the parties to have reached an agreement, the terms of which could not be known. This required evidence of communication and opportunities for communication in the relevant period and an opportunity for Mr Macdonald to become aware that his colleague, Mr Obeid Snr and members of his family-owned property in the Bylong Valley in the vicinity of Mount Penny. Further, it required knowledge on the part of the three appellants that there was a coal seam which extended under the property.

Dealing, however, with the substance of the case there was significant evidence of a close relationship between Mr Obeid Snr and Mr Macdonald at the time Cherrydale Park was purchased in September 2007. Negotiations with Mr Cherry had taken place in the first half of September and Mr Obeid Snr attended Mr Macdonald’s wedding in Orange on 15 September 2007. There was evidence that arrangements to finalise a contract of sale were taking place at that time. Mr Macdonald and Mr Obeid Snr spoke on the evening of Sunday, 16 September and again on several days during the following week, and on the following Monday and Tuesday which were parliamentary sitting days. On 26 September 2007, Mr Badenoch, Mr Macdonald’s chief of staff, made an enquiry about water licences at Cherrydale. The water licences formed a significant element of the contract of sale, as explained above, because there was an obligation on the purchaser to maintain the licences in their present terms while Mr Cherry held a security interest over the property. There was a reasonable inference that Mr Badenoch made the enquiry at the request of Mr Macdonald.

When asked in December 2012 by a journalist (Mr Shanahan) whether he had had any involvement or discussions with Mr Macdonald about the tender process (presumably the expressions of interest) Mr Obeid Snr stated: [227]

Further, there was evidence from both Mr and Mrs Fitzhenry as to the relationship between both Mr Moses Obeid and Mr Obeid Snr and Mr Macdonald, including Mrs Fitzhenry’s evidence that Mr Macdonald had told Mr Obeid Snr (who told his son) that there was coal on Cherrydale. There was also the evidence of Mr Fitzhenry, which despite the cross-examination, permits a clear inference that Mr Moses Obeid spoke to him in the first few months of 2008 in the terms already discussed above. Further, in his interview with the journalists in December 2012, Mr Moses Obeid stated that he and his brother Paul Obeid had done research in March or April 2008. [228] Mr Moses Obeid stated in the interview that the information had come by way of rumours heard by their farm manager at the local pub. That part of the story need not have been accepted by the tryer of fact but the dating of the knowledge was significant.

While that evidence undoubtedly fell short of establishing the existence of a conspiracy by 9 May 2008, it provided a plausible framework against which subsequent events might be assessed. However, there was little room for doubt that at that time Mr Macdonald knew of the acquisition of Cherrydale Park by the Obeid family. [229]

The first and second acts of misconduct particularised by the prosecution alleged that on or about 9 May and again on 14 May 2008 Mr Macdonald sought information via his chief of staff, Mr Gibson, from the Department about coal reserves in the area of Mount Penny.

The evidence as to the asserted facts came from Mr Gibson, supported by a documentary record. The record started with a diary entry in Mr Macdonald’s diary for a meeting with Mr Obeid Snr on Thursday, 8 May at 5.30pm in Parliament House.

Mr Gibson gave evidence that Mr Macdonald had said to him on the morning of 9 May, “can you get some more information on this area for me, please, Jamie? And I said, ‘yes, I can’”. [230] He was then asked to identify “this area” and said “the Mount Penny, North Bylong area”. [231]

Mr Gibson said that he called Graham Hawkes in the Department directly. At 12.01pm, Mr Hawkes forwarded to Mr Gibson an email from Robert Larkings in the Department, which read:

The diagram attached to the email was a map entitled “Mount Penny area – map 1”, and at the foot noted that it had been prepared on 9 May 2008 by Leslie Wiles (Wiles Map 1).

At 12.06pm on 9 May, Mr Gibson responded by email:

At 12.57, Mr Hawkes responded noting “brief and diagram attached. Information approved by Brad Mullard, Director Coal and Petroleum Resources”. The attached Ministerial Briefing from DPI-Mineral Resources and headed “Mount Penny – Bylong Valley” was in similar terms to the earlier email to Mr Gibson. Wiles Map 1 was attached.

Mr Gibson gave evidence that he “gave the information to Mr Macdonald” by forwarding the email.

With respect to his message to Mr Hawkes that he had to “fax it to the boss” Mr Gibson gave evidence that “the boss” was Mr Macdonald and continued: [232]

Mr Macdonald’s electronic diary for 9 May 2008 showed an entry at about 12.30pm “flight Sydney to Orange”; Mr Gibson said that he believed that Mr Macdonald had travelled back to Orange at about that time. He also gave evidence that he faxed the Ministerial briefing and the attached diagram to the Minister. [233] Mr Gibson gave evidence that he considered the briefing document “a commercially sensitive document and therefore not – it should not be made available to the public”. [234] He said that he called Mr Macdonald to confirm that the material had been received.

On 14 May 2008, Mr Gibson sent an email (“importance: high”) to Craig Munnings who was a Departmental Liaison Officer (Minerals) in the office of the Minister. The email, sent at 11.02am was entitled “Coal Reserves in Mount Penny Area of Bylong Valley” and appeared to be a forwarding of an earlier email with that title. The email read:

The next email, from Mr Munnings to Mr Hawkes at 1.33pm indicated that Mr Munnings had been out of his office and asked, “could this be actioned ASAP”. At 1.39pm Mr Hawkes emailed Mr Mullard saying:

At 3.51pm, Mr Coutts responded to Mr Hawkes:

Mr Gibson was asked why he sent the request for information on 14 May to Mr Munnings and responded:

Given the extensive support for Mr Gibson’s evidence in the documentary record, there was no apparent reason to doubt the accuracy of Mr Gibson’s oral evidence. Nor did the trial judge indicate that his evidence would be rejected: rather, in circumstances where there was a conflict between witnesses, his evidence was preferred.

The evidence clearly established that the first and second acts of alleged misconduct were made out. A rational explanation for Mr Macdonald’s behaviour was that he was seeking information in relation to land which he knew was owned by the Obeid family. There may have been other rational explanations, but it is neither necessary nor appropriate to ask a question in those terms in respect of part only of the circumstantial evidence.

Mr Macdonald was in China between 15 and 26 May 2008. Mr Macdonald had contact with Mr Obeid Snr at 5.17pm on the day of his return, 27 May 2008. There was a further telephone contact at 7.35am the following morning after which there were exchanges between Mr Obeid Snr and Mr Moses Obeid. Mr Obeid Snr met with Mr Macdonald at 11am on 28 May 2008.

A list of areas which might be released was prepared by Ms Moloney (on direction of Mr Mullard) in preparation for an expression of interest process. The areas to be identified were to be in the Western Coalfields. [236] She prepared a list and a diagrammatic representation of the areas covered. At the same or similar time, Ms Wiles was asked to look for “large tender areas”. [237] Wiles Map 2, dated 30 May 2008, was prepared in response to that request and covered an area in the Bylong Valley from a mining lease known as Wilpinjong in the west to the Anglo Coal Authorisations in the east.

This material was included in a brief to the Minister for a meeting which was held on 3 June 2008. The attachment headed “North Bylong” (being Wiles Map 2) showed the sideways S snaking up the Bylong Valley and cross-hatched in pink or red. It was one of three larger exploration areas identified and was accompanied by a statement that the area “is expected to contain substantial opencut resources” but that “[f]urther exploration is required to define a potential tender area”. [238]

Mr Macdonald met Mr Mullard at Parliament House on 4 June 2008. Mr Gibson attended the meeting. Mr Gibson gave evidence of the discussion at the meeting on 4 June. A relevant exchange in the course of his examination in chief was as follows: [239]

There was then discussion as to how the evidence should be led, which ended with the following exchange between the judge and the witness: [240]

Mr Gibson gave evidence in relation to the name (North Bylong) attached to Wiles Map No 2 as it appeared in the briefing note, together with the description, which indicated “open-cut resource greater than 200 million tonnes” to a subsequent description as an attachment to an email from Mr Mullard, which was copied to Mr Gibson, in which the title was changed to “Mount Penny” and the estimated open-cut resource was now “Less than 100Mt in the Mount Penny area”. [241] A possible timeframe for a Mount Penny expression of interest was also included, with four weeks for a data package preparation (to the end of July) and an eight week period identified as the “EOI period” with a date given as the end of September. [242]

When asked about the changes, Mr Gibson said they came from a discussion between Mr Macdonald and Mr Mullard, Mr Gibson explaining: [243]

Further, the estimated minimum return identified for Mount Penny was $15 million; the estimated return for a large coal EOI area known as “Ridgelands” in the Hunter Valley was in excess of $100 million. Mr Mullard’s evidence as to the discussion at the meetings on 4 June and 6 June (which he found difficult to distinguish) included the following discussion: [244]

Mr Mullard also indicated a concern that “breaking up the large areas might result in [them] being less attractive to the industry if we put it out for tender”. [245]

The prosecutor obtained leave to cross-examine Mr Mullard with respect to his statement of 20 May 2014 in which he had said, in relation to the meeting with the Minister on 6 June: [246]

As has been discussed above, Mr Mullard further agreed that “he definitely told me to make a smaller area” and when asked if that was “in the east” said, “that is very likely, yes”. [247]

Mr Mullard also accepted that after the meeting he spoke to Ms Moloney and asked her “to create a coal exploration licence area in the eastern side of North Bylong”. Her email in response, with a map on 16 June 2008 showed “area 7 Mount Penny”. He agreed, that his statement recorded that he “may have referred to that area as ‘Mount Penny’ when talking to Ms Moloney, hence the name”. [248]

At 5.06pm on 4 June 2008, Mr Gibson emailed Mr Mullard: [249]

At the same time, Mr Macdonald had a scheduled meeting for one hour with Mr Alan Fang of Tianda, in relation to whom some further matters will be addressed below. Mr Gibson gave evidence at the trial that the maps arrived in a cylinder. He recalled that the person delivering them had been caught in a rainstorm, from which the maps were protected. At 4.32pm on Thursday, 5 June, Mr Gibson emailed Mr Mullard thanking him for the maps which arrived that morning and noting “they were very much appreciated”. [250] The second meeting occurred on Friday, 6 June at midday. At 3.04pm, Mr Gibson emailed Mr Munnings stating “can you please get the latest Bylong Valley (Mount Penny) map emailed up on Tues” which was 10 June 2008. [251]

Twenty minutes later, Mr Mullard emailed three maps being the three large area maps for Ridgelands, North Bylong area and Benelabri application area. The map provided in relation to North Bylong-Mount Penny was Wiles Map 2.

Mr Gibson was cross-examined about the email sent at 3.04pm on 6 June 2008 which was headed “2 things mate”. Having observed that they had obtained a copy of the map on Tuesday 3 June in anticipation of the meeting with Mr Mullard on the 4 June, and that following that meeting he had asked Mr Mullard for larger versions of the maps, which were subsequently provided on the 5 June, his evidence continued: [252]

It was also put to him: [253]

Mr Mullard also accepted that in evidence he gave to the ICAC in November 2012 he had said: [254]

The evidence provides strong support for the conclusion that Mr Macdonald was responsible for creating a coal release area which covered the property owned by the Obeid family and the two northerly neighbours. In ordinary parlance, he directed the creation of the coal release area. He did so over departmental opposition and in the face of a perceived public interest in maximising the funds available from the exploitation of coal resources in New South Wales. It was also done in the face of departmental views that more exploration should be undertaken in order to identify the extent of the resource and a departmental belief that the more valuable resource was to the west. An inference that the action was taken in order to benefit the Obeid family may readily be drawn from this evidence. Further support for that inference may be derived from the almost daily contacts between Mr Macdonald and Mr Obeid Snr from the end of May until late June. These contacts included a lunch on 2 June, a telephone call on the evening of 4 June, telephone contact on the evening of 5 June, and further telephone conversations on three occasions on 10 June, On 11 June there was a breakfast meeting and then contacts between Mr Moses Obeid and Mr Obeid Snr at midday, 1.39pm and 4.07pm, and a further telephone call from Mr Obeid Snr to Mr Macdonald at 4.27pm. Mr Obeid Snr contacted Mr Macdonald at midday on 14 June, and Mr Macdonald contacted Mr Obeid Snr at 12.37am on 15 June and again at 10.03am. Twenty minutes later Mr Moses Obeid contacted Mr Obeid Snr. On 16 June Mr Moses Obeid contacted Mr Macdonald at 7.08am and Mr Macdonald contacted Mr Obeid Snr at 7.41am. Apparently following a meeting on 16 June at midday, Mr Macdonald contacted Mr Obeid Snr at 12.15pm and at 12.46pm. Mr Moses Obeid called Mr Macdonald at 12.17pm and Mr Obeid Snr contacted Mr Macdonald at 5.14pm, the call being returned at 5.35pm and at 6.07pm. Mr Macdonald had dinner with Mr Moses Obeid and Anthony Cummings at 6.30pm on 16 June. At 9pm, Mr Moses Obeid contacted his father.

There were other things happening during this period which allow for an inference that Mr Macdonald was keeping the Obeids informed of progress with respect to a possible coal release area at Mount Penny. Thus, Mr Rodd, a real estate agent who had been involved in the sale to the Obeids of Cherrydale Park, inspected Donola and had a discussion in relation to Coggan Creek with Mr Adlington, a real estate agent who had been involved in the sale of both properties. The chronology records that the inspections took place on 12 June 2008.

On 16 June 2008, at 1pm, Mr Moses Obeid contacted Mr JK Lewis, with whom he eventually made arrangements to purchase Donola. No doubt they had other interests in common, but it may not have been entirely coincidental that the contact occurred at a time when the Obeids were interested in purchasing both properties, but needed partners to do so.

On 19 June 2008, Ms Moloney sent to Mr Mullard a list of seven companies which had registered an interest in coal allocation in the western coalfield (and a further list of companies with current titles in the western coalfields). Ms Moloney gave evidence that she undertook that task at the request of Mr Mullard. [255] It was based on “companies registered on the coal register for small areas” or the areas identified in the earlier document prepared for the Minister. By a further email on 19 June an updated list was attached which deleted Xstrata, leaving six companies on the first part of the list. Ms Moloney gave evidence that Mr Mullard had asked her to exclude the larger companies because “we were working on the remnant areas and looking at areas suitable for small to medium size companies”. [256] Also on 19 June, Mr Obeid Snr contacted Mr Macdonald at 9.14am, followed by three calls between Mr Moses Obeid and his father. On 21 June Mr Obeid Snr contacted Mr Moses Obeid at 6.41am and, three hours later, contacted Mr Macdonald. Two hours later, at 11.43am he again contacted Mr Moses Obeid.

On 23 June 2008, Mr Obeid Snr contacted Mr Macdonald at 7.03am, followed by three calls between Mr Obeid Snr and Mr Moses Obeid and further contacts between Mr Obeid Snr and Mr Macdonald at 9.28am and then at 9.51am.

On the same day (23 June) Mr Rumore, a solicitor for the Obeid family, had a conference with Gerard and Paul Obeid to obtain instructions to prepare an agreement. The file note recording the proposed agreement was significant. It recorded instructions to prepare heads of agreement with persons identified as the “Boyds”, to provide for a joint venture involving three properties, one owned by the Obeids and two being purchased by the Boyds, for farming/rural purposes as agreed from time to time. The file noted continued: [257]

Arrangements were proposed for repayment of money invested by the Boyds together with a division of the value when negotiated with interested mining companies.

Given the stage to which matters had progressed within the Department of Primary Industries, the step of instructing solicitors on 23 June was prescient. An interest in purchasing Coggan Creek and Donola had first been demonstrated eleven days earlier when Mr Rodd and Mr Adlington had inspected the properties. The steps being taken by the Obeid family to interest parties in investing implied that the Obeid family was anxious to capitalise on the information they had despite the lack of available funds. Obviously, that fact alone did not provide a solid basis for an inference that the source of the information was Mr Macdonald: however, it was to be seen as a significant element in a chain of events.

At 4.45pm on 23 June Mr Macdonald met with Mr Obeid Snr. At 5.05pm, Mr Rodd offered a non-refundable option fee of $50,000 for a two-month option to purchase Coggan Creek. Mr Moses Obeid sought to contact his father at 5.57pm. Mr Obeid Snr left a message by voicemail with Mr Moses Obeid at 6.55am the following morning. There were ten further attempts by the two to contact each other during the day. There were further calls from Mr Moses Obeid to his father on the morning of 26 June.

On 26 June Mr Macdonald had lunch with Mr Fang. He contacted him again later that afternoon and twice on the following day. At some point prior to 2 July, Mr Fang’s company, Tianda Resources was added to the list of small companies which had expressed interest in a coal allocation within the State (though not in the western coalfield). On the same day, Mr Rumore had a conference with Messrs Fang, Moses and Gerard Obeid. Mr Mullard gave evidence that he had been instructed by the Minister’s office (through Mr Gibson) to expand the list so that it was not restricted to companies in the western coalfield [258] and was also asked by Mr Gibson to add Tianda Resources to the list. [259]

On 30 June 2008, Mr Rumore had a conference with Paul, Gerard and Moses Obeid. He was instructed that the Boyds were out and that the new partner was to be Tianda Group, “associated with one of ultimate bidders for coal development/lease of mining tenement”.

It is convenient at this point to explain the evidence as it related to Mr Fang. Mr Fang was resident in China and did not give evidence. He was described at one point as “uncooperative”.

Although resident in China, he visited Australia regularly and was interested in investing in Australian resources. Mr Gibson knew him as a friend of the Minister and believed that he met with Mr Macdonald every few weeks. [260] The meeting between the Minister and Mr Fang for lunch on 26 June and the further contacts noted above on 26 and 27 June, followed by Mr Moses Obeid contacting Mr Fang by SMS at 8.30am on 30 June, with a reply from Mr Fang at 10.38am, together with Mr Fang contacting Mr Macdonald at 11.18am, provide a powerful inference that it was Mr Macdonald who put Mr Fang in touch with Mr Moses Obeid. There followed two contacts between Mr Obeid Snr and Mr Macdonald on 30 June at 12.40pm and 1.46pm respectively, followed by other contacts between Mr Macdonald and Mr Fang at 4.10pm and 8.30pm. (There were also several contacts between Mr Moses Obeid and his father in the course of the day.)

Given Mr Macdonald’s involvement in the steps taken in early June to have the Department identify a small coal resource area in the east of the Bylong Valley where he knew that the Obeid family held a property, the powerful inference that Mr Macdonald put Mr Fang in touch with Mr Moses Obeid leads to the further inference that it was he who had provided the information to the Obeid family, either through Mr Obeid Snr or through his numerous contacts with Mr Moses Obeid, as to the promotion of the coal release area which he had instigated.

It was not part of the prosecution case that Mr Fang or Tianda Resources was part of the agreement reached prior to 9 May 2008; rather that material provided the basis for an inference that the conduct which was undertaken later in May and during June to set the basis for release of the small area on the eastern part of the Bylong Valley was indeed a prearranged strategy.

It will be necessary to return in due course to the evidence that the information and documents which appeared to be available to the Obeid family from no later than mid-June 2008 did not become publicly available through the release of the expressions of interest process until 1 September 2008. It will also be necessary to identify the evidence which supported the conclusion that the information and the documentation were treated by officers in the Department, and in the Minister’s office, as confidential. There was also evidence from each of the witnesses who were called that he or she did not reveal publicly the information which was being supplied to the Minister’s office.

On 1 July 2008, between 7.32am and 9pm there were eight contacts between Mr Obeid Snr and Mr Moses Obeid. There were also contacts between Mr Obeid Snr and Mr Macdonald at 7.39am, 8.28am, 1.29pm, 6.05pm and 9.16pm. Further, Mr Macdonald contacted Mr Fang at 1.21pm, 5.23pm, 5.34pm, 5.55pm and 5.58pm. There was contact between Mr Moses Obeid and Mr Fang at 3.42pm and 6.20pm.

It was Mr Moses Obeid who was actively pursuing the possibilities of the Obeid family gaining control of the two properties to the north of Cherrydale Park and developing a plan for the family’s involvement in the commercial exploitation of the coal resource he understood to lie under the properties.

Some of the contacts may not have been substantial, but the ready inference, given the foregoing circumstances, is that many if not most of the contacts related to the coal release area adjacent to Mount Penny. On the following morning, at 6.50am, Mr Obeid Snr contacted Mr Moses Obeid; at 12.26pm, Mr Fang contacted Mr Moses Obeid. A quarter-of-an-hour later, Mr Moses Obeid contacted Mr Lewis.

Following the meeting between Mr Rumore and Paul, Gerard and Moses Obeid on 30 June 2008, at which time Mr Rumore was advised that Tianda Resources would be the new partner in the joint venture, there was a further conference with the three Obeid brothers and Mr Fang on the same day, in the course of which Mr Fang advised that Tianda Coal (Australia) Pty Ltd was to bid for “the coal lease”. Mr Rumore noted (no doubt his own advice) that if the purchase of two farms was to be by an offshore company, there may be a need for FIRB approval.

There was a further conference between Mr Rumore, Mr Fang and Moses and Gerard Obeid on 2 July 2008. A more detailed (and complex) arrangement was proposed, apparently by Mr Fang, who was to establish a company (Great Western Coal Pty Ltd) of which Unen Coal Limited would be a shareholder and “Obeid Co” would take a 30% option in GWC, if it won the right to mine coal in the three properties. The following morning, Mr Rumore sent an email to the Obeids at 8.51am. It is clear that Mr Rumore thought Mr Fang had been playing for time before agreeing to a price and further stated: [261]

Later on 3 July, Mr Rumore wrote to Paul, Gerard and Moses Obeid noting that on the previous evening he had been handed a copy of the contract for the purchase by Locaway of Cherrydale Park. He made a number of comments on the effect of the conditions and in particular the mortgage to Mr Cherry. The letter concluded: [262]

On the same day (3 July) Mr Rumore received a letter from the solicitors for the owners of Coggan Creek enclosing a draft deed of call option agreement and contract for sale. On Friday 4 July, Mr Rumore wrote again noting that the Obeids had cancelled a conference planned for the morning, noting the steps that needed to be taken and advising of his departure interstate on Monday 7 July. It is clear that in the first week of July the Obeid family was engaged in detailed preparation for the anticipated tender process for the issue of a coal exploration licence.

There was further contact on the evening of 2 July (after 5pm) between Mr Fang and Mr Moses Obeid. [263] In the meantime, Mr Moses Obeid had been in contact with Mr Brook whom he arranged to meet the next day. On 3 July 2008, a Mr Selby emailed Mr Brook at 1.48pm with a message, “time is going to blow out to 2.30pm are we still good?”. [264]

Mr Brook had no prior involvement with Mr Macdonald or any member of the Obeid family until he was introduced by Mr Selby to Mr Moses Obeid at a meeting in the Wentworth Hotel on 3 July 2008. [265] Mr Brook recounted the conversation with Mr Moses Obeid in the following terms: [266]

Mr Brook was cross-examined by counsel for Mr Moses Obeid on the basis of evidence he gave before the ICAC on 12 March 2012 and on the basis of a statement made on 20 August 2013. [267] There were differences in expression, but the substance of the conversation was consistent across the various statements and his evidence at trial.

Mr Brook gave evidence that Mr Moses Obeid had “asked me whether I had any experience in natural resources and I responded to him in the negative, I did not have any experience”. Mr Brook further recalled him “asking me whether Lehman Brothers had any mining companies as clients”. [268]

The following day Mr Brook emailed a colleague stating, “I want to bid on a government tender, but I need a company that has a coal mining licence, preferably a private company”. [269] He was referred to the principal of BBY, a stockbroking business in Sydney, to which he responded “thanks. BTW – timing is tight”. He was asked in cross-examination: [270]

However, he agreed that one of the tasks he had set himself to do after the first meeting with Mr Moses Obeid was to try and identify a company with a coalmining licence. [271]

The second meeting at the Wentworth Hotel was attended by Mr Brook and Moses, Paul and Gerard Obeid. Mr Brook said that he commenced by explaining to Mr Paul Obeid the capabilities of Lehman Brothers and his role within Lehman. [272] He gave evidence to the following effect: [273]

In cross-examination, Mr Brook gave the following evidence: [274]

It was then put to him that the topic of “land alliance” at the first meeting with Mr Moses Obeid was “either false or a reconstruction”, which he rejected as untrue. [275] The cross-examiner then took him to a passage in his evidence to the ICAC on 12 March 2012 to the following effect:

Other cross-examination in relation to the content of the discussion at the second meeting included the following passage: [276]

The primary matter of dispute in relation to Mr Brook’s evidence was his description of the maps that he was shown by Mr Paul Obeid at the second Wentworth Hotel meeting. His evidence with respect to the maps, given in chief, commenced: [277]

The cross-examination with respect to the maps did not challenge the conclusion that Mr Brook had been shown a government issued topographical map for “Bylong” with a post-it note showing the western boundary of the Anglo Authority. He stated that he had “never seen this map before”. [278] He was asked if Mr Paul Obeid had showed him an original of the map and he denied it. [279] He was then shown a copy of a diagram of EL 6676 produced by DPI. It was not suggested to him that he had seen that map before. He was then asked to put it aside and it was suggested that he was “never shown a map at the second meeting with the members of the Obeid family that had any S-shaped red hatching on it”. He responded: [280]

He was taken to his evidence on 12 March 2012 before the ICAC which commenced with counsel assisting telling him that two maps had been found in the office of Paul Obeid. The examination continued: [281]

His evidence that Mr Paul Obeid had a tube with maps in it which were bigger than A4 size and included a large map which was black and white and printed in portrait was not challenged. [282] Mr Brook recalled the officer of the ICAC showing him two maps, “one I hadn’t seen before and one I believe I had”. [283] He was then shown a map titled “Mount Penny area” and identified as “Map 2” which he did not recollect the Obeids presenting to him. [284]

At the trial, he said that he was unable to confirm the correctness of those answers without being able to see the maps. He was not shown the maps. [285]

A further passage was put to him from the transcript of 13 March 2012: [286]

At the trial Mr Brook said:

The proposition was put to him again that he may not have seen the particular map until after Monaro had been invited and he rejected that proposition. [287] It is clear that the map which he had been shown in March 2012 and denied having been shown by Mr Paul Obeid was Wiles Map 2.

However, in a statement dated 20 August 2013 prepared for the ICAC inquiry, Mr Brook stated [288] that he did not recall being shown a map titled “Mount Penny area” and dated 9 May 2008 (Wiles Map 1). He did identify Wiles Map 2 dated 30 May 2008 as having been shown to him by Paul Obeid at the meeting.

While the evidence given by Mr Brook at the trial was that he had seen Wiles Map 2 at the meeting at the Wentworth Hotel on 7 July 2008, Mr Brook’s reliability was subject to significant challenges. These were put to Mr Brook by the prosecutor at the commencement of his evidence.

Mr Brook was cross-examined by counsel for Mr Moses Obeid with respect to his mental health, an injury he suffered in 2010, a disposition to lie and a period of alcoholism. While, with minor exceptions, Mr Brook accepted all that was put to him, it is necessary to recognise the full extent of the cross-examination, commencing with evidence he had given in the Federal Court in April 2016: [289]

The concession that he had a drinking problem in 2008 cast doubt upon the reliability of his recollection of events at that time. However, he continued to work with the Obeid family and, in particular, Mr Moses Obeid for some 14 months. It seems unlikely that the relationship would have continued for that period if Mr Brook had not been functioning at a reasonable level in the course of his work, on most occasions. His concessions that he had lied in the past were commendable, but cast a degree of doubt as to his truthfulness in relation to all matters. Nevertheless, the credibility of his evidence in the witness box was a matter primarily for the trial judge. The transcript does not provide a basis for doubting that he was seeking to tell the truth in giving evidence in 2020.

Of far greater concern is the possibility that his evidence involved reconstruction. It is often difficult for a witness who has been asked to recall an event or a conversation on numerous occasions to be sure whether, on the last occasion, the recollection is of the original event or a recounting of evidence previously given. As the present case demonstrates, witnesses who gave evidence at the ICAC hearings in 2012, including Mr Mullard, were not able to answer the same questions in 2020, but accepted the accuracy of the answers given in 2014, some six years earlier but six years after the events in question.

So far as Mr Brook’s account of events of 3 July and 7 July at the Wentworth Hotel are concerned, there is a reasonable degree of consistency between the accounts he gave in 2012 and those he gave in evidence in 2020. No doubt much was missing and some statements were expressed in different terms. Nevertheless, the substance was in each case the same. Further, as has been explained, the chronology of events leading to those meetings, much of it verifiable from the documentary records, supported the likelihood of such matters being raised in the meetings at the Wentworth Hotel.

The principal issue for present purposes is whether credence should be given to Mr Brook’s evidence that he was shown what is now known as Wiles Map 2 by Mr Paul Obeid at the second meeting on 7 July 2008. He was first shown documents at a private hearing of ICAC on 12 March 2012 in the following circumstances: [290]

The following day, 13 March 2012, Mr Brook was interviewed by two officers from the ICAC and the interview was recorded. The questioning tended to focus on the involvement of Monaro Mining, and the questions did not seem to follow any chronological order. Mr Brook was shown a number of documents and the transcript on numerous occasions records “[long pause]”, and in other places “[reading document]”. More than halfway through the interview, in a passage where the question was largely untranscribable [291] but appears to have foreshadowed an intention to clarify something that had been said at the private hearing the previous day, the officer, Mr Tim Fox, asked:

Mr Fox then diverted to an entirely different question relating to visits to the Obeid premises at Drummoyne before returning to the topic: [292]

Mr Fox then began to refer to “the application” and Mr Brook’s presence at “the board meetings”.

Although this was the second reference made by Mr Brook to the Wiles Map 2, it was almost in passing, in the course of a rambling interview which was conducted without chronology or coherence. The apparent uncertainty expressed at one point by Mr Brook, with respect to the Monaro applications, although relied upon by counsel for Mr Moses Obeid at the trial, has no obvious significance.

There were several noteworthy aspects of the first two statements of Mr Brook concerning the second meeting at the Wentworth Hotel. First, although it is true that when counsel assisting first showed him the two maps, he was advised that they had been obtained from the offices of Mr Paul Obeid, he immediately recognised one but not another. Had he simply been giving an answer which he thought was expected, he might have claimed to recognise both. Secondly, although the lengthy interview the following day with Mr Fox dwelt almost entirely upon later events and the relationship with Monaro Mining, when asked about the map he had identified the previous day, he immediately confirmed that it was the one he had seen at the Wentworth Hotel. It was clear from Mr Fox’s response that he had no clear concept of when that occurred and appeared to assume (wrongly) that it post-dated a number of meetings that had been held in Drummoyne. Thirdly, the reference to the “contiguous area” involving a “much bigger resource” was consistent with Mr Brook having in mind a map which demonstrated coal reserves in the area where he had been told the Obeid’s property was situated, together with a much more extensive area of coal reserves. That is entirely consistent with the sideways figure S shown on Wiles Map 2.

Fourthly, although it again demonstrates confusion on the part of the ICAC officers and Commissioner, in the course of the first interview at the private hearing on 3 July 2008, the following exchange took place:

While the Commissioner continued to explore the distinction between being already under a licence and being open to public tender, in fact Cherrydale Park was subject to EL 6676 (granted to the DPI), which was noted on Wiles Map 2. Far from being coached, Mr Brook was giving what appears to have been accurate information to the Commissioner, which was not fully understood by those conducting the interview.

Fifthly, Mr Brook’s description of the conversation at the first and second Wentworth Hotel meetings was, consistently, that neither Moses nor Paul Obeid acknowledged the source of their information as to the coal resource under Cherrydale Park, despite the fact that they were sufficiently confident in their knowledge that they were seeking to obtain finance to allow them to join in an arrangement with a mining company. The suggested sources of the information, largely as rumour and gossip, were unlikely to have warranted such activity. On the other hand, it is quite plausible that they did not reveal the true source of their information to Mr Brook at their first and second meetings with him.

There are other reasons for giving credence to Mr Brook’s identification of the one map that he recalled being shown in the course of the second Wentworth Hotel meeting. So far as the evidence before the Court was concerned, there was no other satisfactory source of detailed information as to a coal reserve lying under Cherrydale Park and the adjoining properties. Secondly, the reference to the contiguous zone which might also be available for exploration, provided a powerful connection with the sideways S on Wiles Map 2. Thirdly, each of the witnesses from the Department and the Minister’s office who gave evidence was asked whether they considered the maps prepared by Ms Wiles to be confidential (each said they were) and each was asked whether he or she had provided copies to anyone other than a person within the Department or the Minister’s office who requested them and was entitled to see them (each denied doing so).

The first documentary record of Mr Brook stating the evidence he was to give in relation to the Wentworth Hotel meetings was dated 20 August 2013. That was an orderly and concise statement which annexed the two maps being Wiles Map 1, which he did not recollect being shown to him by Paul, Gerard or Moses Obeid at that meeting or at any other time, and Wiles Map 2, which he did recall Paul Obeid showing him and identifying where their farm was and the area in which they had a “land alliance” with adjoining property owners.

The possibility that there was unconscious reconstruction thereafter may have been significant. However, there was little basis in the evidence to support a conclusion that there was unconscious reconstruction arising from the steps taken by ICAC officers in March 2012.

There was no evidence of any relevant communications with ICAC officers before he gave evidence at a private hearing in 2012, nor beyond that hearing, as to the basis on which he was able, on 6 March 2013, to sign a statement which identified Wiles Map 2 as one of the maps which had been shown to him at the meeting in the Wentworth Hotel. No doubt the ICAC officer should not, before getting Mr Brook’s evidence, have told him that Wiles Map No 2 had been found in 2011 during a search of the premises of Locaway Pty Ltd, the company through which Cherrydale Park was purchased and which was under the control of Mr Paul Obeid. Nevertheless, Mr Brook gave evidence that he had seen maps at the second Wentworth Hotel meeting, and, whilst able to give only a vague description of their size and nature, could say with apparent confidence, when shown two particular documents, that he had seen one but not the other.

There remains the problem arising from the time between the events of July 2008 and his interview with the ICAC officer in March 2012. It was not merely a question of the lapse of almost four years between the two events; the period of 2008-2009 was one in which there was opportunity for Mr Brook to have seen the maps on other occasions.

In this respect, the appellants suggested that he was shown the map by an officer from Monaro Mining. That suggestion was speculative and was not put to either of the officers of Monaro Mining who gave evidence.

Furthermore, if Mr Brook were correct in his belief that he had seen Wiles Map 2 it was by no means clear how that could have occurred innocently, in circumstances where it was a confidential DPI document and was not released as part of the package provided to those from whom expressions of interest were sought. Mr Macdonald submitted that it could have been released by an officer in the Minister’s office (presumably without the Minister’s direction), [293] but Mr Mullard denied that in his evidence, [294] as did other possible sources within the department or the Minister’s office, particularly Mr Gibson. [295]

Mr Brook’s evidence with respect to the map he was shown at the second Wentworth Hotel meeting on 7 July 2008, first given four years later, left open a reasonable doubt as to its accuracy and reliability. However, it was not entirely without weight and was material properly taken into account as part of the circumstantial case put forward by the prosecution.

In short, Mr Brook’s evidence was that he met with the Obeids, of whom he had no prior knowledge, in circumstances when they were presenting to him a plan to be involved at the mining level with the exploitation of a coal reserve under their property and under adjoining properties. There was evidence that they were seeking to purchase or arrange for associates to purchase the adjoining properties. There was no evidence of any map in the public domain at that time which identified an extensive coal reserve under Cherrydale Park and the adjoining properties, with an even richer resource in a contiguous area. Yet there can have been no purpose in having the meeting unless the Obeids were able to demonstrate to Mr Brook that they had a significant coal resource under their land. That he was shown a map was not in dispute; that the map must have been one which provided evidence of a significant coal resource is highly probable. That it was the map which Mr Macdonald had had prepared in order to identify the coal resource in the Bylong Valley, namely Wiles Map 2, is at least probable.

The evidence that the Obeids were planning to be involved in any exploration licence “at the mining level”, rather than merely as affected land holders, was comfortably established by evidence of their attempts to engage Monaro Mining in the first stage of the EOI process. That approach is confirmed by the attempts by Mr Brook immediately following the meeting with Mr Moses Obeid on 3 July 2008 to obtain information about possible coal mining companies with whom he might be able to do business.

The seventh particularised act of misconduct alleged that on or after 7 July 2008 Mr Macdonald caused the Obeids to be provided with a document titled “company EOI 2 July 2008” containing a list of companies proposed to be invited to participate in the EOI process or, in the alternative, information as to the companies on that list.

The list contained three categories. The first identified six companies which had registered an interest in a coal allocation in the Western Coalfield; the second, companies with current titles in the Western Coalfields, and the third, other “small companies” which had expressed an interest in coal allocations elsewhere in the State.

The existence of the list and the means by which it came into being were not contested. The trial judge found:

The first version of the list, prepared on 19 June 2008 by Ms Moloney, and emailed to Mr Mullard on the same day, included information derived from the “Coal Register”. The Coal Register was a document in which Ms Moloney recorded companies which had expressed an interest in exploiting coal resources. She regarded the document and the information contained as confidential and not available to members of the public. [296]

The first version of the list contained only the first two categories of companies. A second version, also prepared on 19 June, contained the same two categories, but with the large companies excluded. Mr Mullard explained the instruction given to Ms Moloney in that regard in the following terms: [297]

A third version of the list was prepared on 2 July 2008, which included the third category. Mr Mullard’s evidence as to the revision was as follows: [298]

Mr Mullard gave evidence that the 2 July list had been provided to the Minister’s office and stated that he got a further communication from Mr Gibson to add an additional name to the list, which was Tianda Resources. [299] Tianda Resources was a company associated with Mr Fang. [300]

At 11am on 7 July 2008, Mr Macdonald and Mr Gibson met three members of the Department, including Mr Mullard, to discuss coal reserves and the coal allocation policy. Mr Gibson gave evidence that he recalled attending the meeting. [301] Mr Gibson also gave evidence that he had seen the 2 July list of companies and stated that the document had been provided to the Minister’s office in a form of a briefing note from the Department. He said that it was given to Mr Macdonald. [302]

There was other evidence that the list was discussed at the meeting with the Minister on 7 July 2008. The meeting was one of a series of weekly meetings between the Minister and his Director-General, Dr Richard Sheldrake, and was attended by Mr Sheldrake. His handwritten note of the discussion at the meeting, under the heading “action” stated, “get list together of small symbol less than 150 Mt mines 6-7 companies”. There was specific reference to Mount Penny as a less than 100 Mt resource. The note also referred to a package (to be prepared, apparently by 21 August).

Mr Mullard recalled attending the meeting with Mr Coutts, recalling the discussion in the following terms: [303]

Mr Mullard also accepted as correct evidence he had given to the ICAC inquiry in November 2012 that it was “highly likely” that he had taken Ms Moloney’s list to the meeting in the form of a hardcopy. [304]

On Friday, 4 July 2008, Mr Macdonald called Mr Obeid Snr on four occasions. On Monday, 7 July, Mr Moses Obeid called Mr Macdonald at 11.42am and 2.19pm. At 2.30pm he eventually got through to someone in a one minute and thirteen seconds call. On 8 July, Mr Moses Obeid called Mr Macdonald and spoke for two minutes and thirty-six seconds, followed by two calls to his office at 8.32am and 10.38am that morning. At 12.30pm on Tuesday, 8 July 2008, Mr Macdonald met Mr Moses Obeid at the Sydney Hospital Cafe in Macquarie Street. [305]

The following day, 9 July 2008, Mr Moses Obeid met Mr Brook and, according to Mr Brook’s evidence, gave him a handwritten list of companies, which he emailed to himself the next day. [306] The email and the list were in evidence. [307] There was also expert forensic evidence, accepted by the trial judge, and not challenged on the appeal, that it was “highly probable” that the handwritten list was prepared by Mr Moses Obeid. [308] The list contained fifteen names. The first six were the companies which had registered an interest in coal allocations in the Western Coalfields (Ms Moloney’s first category) with one exception – the name “White Mining” had been replaced by “Felix Resources”. A statement of agreed facts noted that White Mining was a member of the Felix Resources Group. [309] Mr De Ross, the General Manager of Tianda Resources Australia between December 2007 and December 2009, in cross-examination by counsel for Mr Macdonald, agreed that Mr Macdonald’s contacts had organised to put Tianda Resources together with Felix Resources in making an application for the Watermark coal project. [310] The relationship between Felix Resources and White Mining was known to Mr Coutts in the DPI and was likely known to Mr Macdonald in July 2008.

The next seven companies listed on the handwritten list given to Mr Brook were the coal companies with current titles (Ms Moloney’s second category), with the exception of “Enhance Place” which was already on the list as a company in the first category. The other two companies on the handwritten list were Tianda Resources (which the evidence indicated had been added to the list of other companies (category 3) at the request of Mr Macdonald) and Donaldson Coal P/L. There was no evidence as to the provenance of Donaldson Coal.

There is a high probability that the list provided to Mr Brook on 9 July 2008 by Mr Moses Obeid was derived from the 2 July 2008 list prepared by Ms Moloney. The evidence also established that Mr Macdonald had the list, no later than 7 July 2009 and showed the list to Mr Moses Obeid when he met him at the Sydney Hospital Cafe on 8 July 2008. The changes to the 2 July list, as recorded by Mr Moses Obeid on his handwritten list, are readily capable of explanation as being information provided at the meeting by Mr Macdonald. Any alternative hypothesis as to how the list came into the possession of Mr Moses Obeid must, in the circumstances, be speculative and insufficient to raise a reasonable doubt as to the events described in the seventh act of misconduct.

The evidence that members of the Department and Mr Gibson in the Minister’s office regarded the information contained in the list as confidential and of a kind that they would not and did not release to any member of the public, together with the inferences to be drawn from the process by which the list was prepared, satisfy the element of confidentiality. That the material was provided to Mr Moses Obeid for his personal commercial benefit demonstrates that the Minister breached his duty of impartiality in providing the information. Accordingly, there is no basis to entertain a reasonable doubt as to the correctness of the finding that the seventh act of misconduct was established.

Mr Rumore was away for the week of 7 July 2008, but sent an email to Mr Gerard Obeid (copying Paul and Moses Obeid) with respect to “sale of Coggan Creek Bylong”, on his return on Monday 14 July. He asked about developments with regard to “negotiations with Mr Fang and Tianda Group with respect to this transaction”.

Mr Brook gave evidence that when Mr Moses Obeid gave him the list of companies, he asked him to “research the list and identify any companies that [I] thought might suit Lehman Brothers’ profile to approach, in order to start a conversation about potentially partnering with them in order to make an offer or make an application to achieve a bid on an exploration licence”. [311] He said that he did, and was able to identify information with respect to Monaro Mining NL because it was a public company. He said that access to information as to the financial standing of other companies was limited if not impossible. [312] He described the position of Monaro Mining in the following terms: [313]

Mr Brook did in fact contact Monaro Mining and made an appointment to meet with Mr Mart Rampe on 15 July 2008. Mr Rampe identified a note of the meeting as being in his handwriting. [314] The document relevantly read: [315]

Although Mr Rampe appeared somewhat dismissive of Mr Brook’s approach to him (of which he said he had no prior notice), the Chairman of Monaro Mining, Mr Warwick Grigor expressed immediate interest and arranged to meet Mr Brook the following day (16 July 2008) at Lehman Brothers’ offices.

On the same day, 16 July, Mr Rumore sent a tax invoice to Mr Brook relating to the incorporation of Voope Pty Ltd and “negotiations with regards to Voope Pty Ltd and Monaro Mining NL and Leham (sic) Brothers entities”. [316]

On 17 July 2008, Ms Moloney wrote to Mr Rampe in the following terms:

On 18 July 2008, Ms Moloney emailed to Mr Mullard a map of “proposed EOI areas”, a document headed “potential coal release areas July 2008” with a short description of each. Under the heading “Western Coalfield, there were six areas, including “Mount Penny”. The email also included the document entitled “company EOI July 2008” which included five categories (the additional one relating to the Gunnedah Coalfield).

Mr Brook gave evidence that he reported his contact with Mr Grigor and Mr Rampe to Mr Moses Obeid in person, more than likely the next day, and probably in the morning. [317]

On 18 July 2008, Moses and Gerard Obeid had a further meeting with Mr Rumore, advising him that the deal with Tianda was off and there was a new contact, Gardner Brook at Lehman Brothers who was liaising with Monaro Mining NL. Details of the proposed joint venture were noted. [318]

Although the eighth act of misconduct merely identified that two documents were caused to be given to the Obeids by Mr Macdonald “on or after 23 July 2008” the prosecution case was that they were conveyed before the opening of the EOI process on 9 September 2008. However, Ex G contained the following agreed facts:

A finding that Mr Macdonald caused the documents, the subject of the eighth act of misconduct, to be provided to the Obeids depended upon a number of inferences, namely that:

The first inference, that Mr Macdonald had access to the documents was readily available on the evidence. On 23 July 2008, the DPI provided a Ministerial briefing to the Minister in relation to the coal allocation proposals. Schiavo Map 3 was part of the briefing documents. [319] There was an email exchange between the DPI and Mr Gibson in the Minister’s office confirming that the briefing was provided to the Minister’s office. [320] Mr Gibson gave evidence that such briefing materials would be supplied to the Minister as soon as reasonably possible after they were received in the office. The Ministerial briefing contained a page headed “medium coal allocation areas”, with a brief description of four areas, including Mount Penny in the Western Coalfield. It also contained a “timeframe for all medium expression of interest (EOI)”. However, the entry for Spur Hill in the Hunter Coalfield (the second item in the list) was not the same as the entry on the copy which was later identified by Mr Brook as the document he received from Mr Moses Obeid. However, a document identical to the one obtained by Mr Brook was to be found in a memorandum prepared by Mr Alan Coutts and provided to the Director-General, dated 5 August 2008. [321]

On 14 August 2008, the Minister met at 9am with the Director-General, Mr Sheldrake, the Deputy Director-General, Mr Coutts, Mr Mullard and Mr Gibson. [322] The evidence supported a finding that Mr Coutts’ memorandum was discussed at the meeting on 14 August. Mr Coutts gave evidence that he recalled the meeting and that the information in his memorandum was discussed with the Minister. [323] Dr Sheldrake did not recall seeing the document in August 2008 but agreed that his handwriting appeared on it and that his personal assistant had written “papers from meeting on 14/08/08 9am” at the top of the meeting invitation. [324]

Although the evidence is not conclusive, given that the contents of the memorandum were discussed at the meeting with the Minister on 14 August, it is a reasonable inference that the Minister was provided with a copy of the document which contained the information.

On the evening of Thursday, 14 August, Mr Macdonald met Mr Obeid Snr at Parliament House, the meeting being fixed for 30 minutes. [325] Mr Macdonald met Mr Obeid Snr again on 20 August 2008 at Birkenhead. [326] (The Obeid family company had an office at Birkenhead.) There can be no doubt that there was ample opportunity for Mr Macdonald to personally provide documents to Mr Obeid Snr during the relevant period.

There was documentary evidence that Mr Brook had the documents on 22 September 2008. Mr Brook gave evidence that he had his secretary retype the document and email it to him on 22 September 2008. [327]

Mr Brook agreed that certain changes had been made to the document, those in relation to Mount Penny included the additions “100 Mt High Grade Thermal Coal – Stage 1” and “700 Mt High Grade Thermal Coal – Stage 2”. Mr Brook said that those changes had been made on the basis of information supplied by Mr Moses Obeid. [328] Mr Brook emailed the description of the coal mining areas (as retyped) and the map (Schiavo Map 3) to Mr Barry Yin, a Chinese investor whom he was seeking to interest in supporting Monaro Mining, immediately following the collapse of Lehman Brothers.

Mr Brook said in his evidence in chief that he believed he was given the coal release allocation areas by Mr Moses Obeid, together with the additional information which he included in the retyped document, in the period from late July to early September 2008. [329]

As noted above, in the discussion concerning common ground 5, senior counsel for Mr Moses Obeid cross-examined Mr Brook on the basis of evidence he had given before the ICAC to the effect that it was either Monaro or Mr Moses Obeid who gave him the two documents. [330] Mr Brook considered it more probable that the documents came from Moses Obeid. [331] Further there was simply no evidence that officers of Monaro Mining had those documents at that time. They were not part of the package provided with the EOI process. Neither Mr Grigor nor Mr Rampe suggested that they had had copies of those documents. The possibility was not put to either of them.

On the other hand, while the Departmental officers denied that they had given the documents to any member of the public or interested party, for reasons outlined above, the evidence supported the inference that Mr Macdonald had access to the documents and the opportunity to provide them to Mr Obeid Snr or Mr Moses Obeid. There was no evidence that Mr Macdonald provided documents to Monaro Mining. Accordingly, the better view is that they came to Mr Brook via Mr Moses Obeid and thus from Mr Macdonald. That conclusion is strengthened if it is accepted that other documents were provided to the Obeid family by Mr Macdonald, including Wiles Map 2.

While the eighth act of misconduct was not established beyond reasonable doubt, the probabilities are in favour of the conclusion that it was correct.

Having addressed the evidence globally, it is necessary to return to the “particulars” of unreasonableness which constituted the structure upon which the appellants addressed ground 2 and which have not been addressed.

First, particular (d), identified at [341] above, challenged a finding as to Mr Moses Obeid’s participation in the conspiracy as at 9 May 2008. The primary submission in support of this particular was that the judge’s finding against Mr Moses Obeid was “based entirely on his conduct from 30 June 2008 onwards”. [332] While a strong inference of involvement in the conspiracy may be drawn from Mr Moses Obeid’s vigorous pursuit after 30 June 2008 of the commercial exploitation of the coal under Cherrydale Park, that did not demonstrate that he was party to the conspiracy from 9 May 2008. However, there was other evidence to support the conclusion that he was involved from a date well before 30 June and by 9 May 2008. As discussed in addressing ground 5(1), the conversations with Peter and Nicole Fitzhenry demonstrated knowledge on the part of Mr Moses Obeid of there being coal under Cherrydale and that Moses Obeid approached Mr Fitzhenry to purchase Coggan Creek. The evidence supported the conclusion that there had been a conversation prior to 9 May 2008 “in which Mr Moses Obeid demonstrated excitement as to the prospect of an exploitable resource under Cherrydale”. [333]

Mr Fitzhenry gave evidence that he had met Mr Macdonald in the driveway of Moses Obeid’s house and Mr Obeid had introduced him, saying, “This is Macca”. [334] On another occasion, while he was in a room with Moses Obeid who was speaking to Mr Macdonald, Moses Obeid handed him the phone, and Mr Fitzhenry gave Mr Macdonald a tip for the races on the coming Saturday. [335]

The telephone call records involving the Obeids and Mr Macdonald have already been considered, but it is convenient to return to them in this context. First, although it is clear that Mr Moses Obeid had a social relationship with the appellant (referring to him, as Mr Fitzhenry noted, as “Macca”) the telephone records from 1 January 2007 reveal little contact until 27 September 2007, being the time that Cherrydale Park was purchased. There was one call by Moses Obeid to Mr Macdonald on 27 September, followed by two calls on 4 October 2007, a further call on 10 October, and one on 11 October, together with three further calls on 13 October, one initiated by Mr Macdonald. There were two calls on 20 October, three on 10 November and two on 11 November 2007. There was a further call of five minutes and twenty seconds initiated by Mr Macdonald to Moses Obeid on 17 November, two calls on 1 December and three further calls on 8 December 2007. There were further calls throughout December. There was a five-minute call from Moses Obeid on 22 January 2008, two calls initiated by Mr Macdonald on 2 February and a further four-minute call initiated by Mr Macdonald on 9 February 2008. On 16 February, there were several brief contacts and a seven minute thirty second call initiated by Mr Macdonald. There were eleven calls in the first eleven days of April 2008.

While, taken in isolation, the fact of the calls (the content of which was not the subject of evidence) does not give rise to an inference as to Mr Moses Obeid’s involvement in the conspiracy prior to 9 May 2008, the existence of a social relationship, together with the concentration of calls at times when independent evidence (referred to below) revealed that Mr Moses Obeid was involved in exploring the possibility of there being coal under Cherrydale Park, form the basis for an inference that some of his communications with Mr Macdonald were directed to exploring the possibility of exploiting the coal. That evidence, with further evidence as to Mr Moses Obeid’s involvement in January/February 2008 discussed below, provided ample support for the conclusion that Mr Moses Obeid was involved in the conspiracy from a date prior to 9 May 2008.

The substance of the challenge to this particular under the unreasonable verdict ground did not focus on the evidence, but on the scope of the judge’s conclusions based on events after 30 June 2008. It was true that that passage in the reasons, taken in isolation, did not support a finding as to earlier involvement of Mr Moses Obeid. [336] But the function of the Court in addressing ground 2 is not to review the judge’s reasons but to consider the evidence. The appellant’s submissions did not engage with this task. However, the evidence did not provide a basis for a reasonable doubt as to Mr Moses Obeid’s involvement as at 9 May 2008.

Particular (c) in Mr Macdonald’s submissions stated that there was a reasonable hypothesis that Mr Macdonald was not aware that the Obeids owned a property in the Bylong Valley as at 9 May 2008. This was the factual matter upon which ground 3, alleging the failure to give a Shepherd direction, was based. However, there were several circumstances which supported the finding that Mr Macdonald knew of the Obeid family interest in Cherrydale Park well before 9 May 2008, when he took the first step in carrying out the conspiracy.

First, the uncontested evidence was that the sale contract with Mr Cherry as vendor was signed on 27 September 2007. On 4 and 12 September 2007 Mr Macdonald had lunch with Mr Obeid Snr in Sydney. [337] On 15 September, Mr Obeid’s diary recorded him attending Mr Macdonald’s wedding in Orange. On 16 September Mr Cherry’s solicitor sent a “list of all the inclusions” that would go with Cherrydale Park on a walk-in-walk-out basis. [338] The sale price was $3.65 million, of which $3.15 million was provided by way of vendor finance. A condition of the mortgage was that the water licences for the property would not be transferred until the mortgage was discharged.

Mr Obeid Snr and Mr Macdonald spoke by telephone on six days between Tuesday, 18 September and the exchange of contracts on Thursday, 27 September. On 26 September, the Obeids’ solicitor, Mr Cordato, sent at 5.30pm an email containing a letter summarising the terms of the contract. The letter noted that there were “a number of water licences for domestic irrigation and stock” which were to remain in the name of the vendor until the loan advance was repaid. [339] At 5.36pm, Mr Obeid Snr called Mr Moses Obeid, who returned his call at 5.49pm. At 6.32pm Mr Macdonald’s Chief of Staff, Adam Badenoch, sent an email to an officer in the Department of Natural Resources seeking information in relation to eight water licences, being the licences identified in special condition 53 in the sale contract. Mr Badenoch gave evidence that he himself had no interest in any rural land or water licences. [340]

There were powerful inferences available from this evidence that (i) Mr Macdonald knew of the purchase of Cherrydale at around the time the contract was signed and (ii) he had requested his Chief of Staff to make enquiries in relation to the water licences.

In an interview with journalists on 18 December 2012, Mr Moses Obeid said that they (the Obeids) had learnt of the mining authority held by Anglo-American in March or April 2008. Mr Obeid Snr corrected that to February-March. [341] Mr Obeid Snr also told the journalists that having spent the summer of 2008 at Cherrydale, he “went back to Parliament and it’s on record that I asked Ian [Macdonald] if the Department has any knowledge of a mine being planned for Bylong by Anglo. Within six or seven days one of his staff has called on my office and said to me that there was [sic] no plans known”. [342]

The first act of misconduct particularised in the indictment, which occurred on or about 9 May 2008, was the request by Mr Macdonald for information from his Department as to the volume of coal reserves in the Mount Penny area in the Bylong Valley. That step itself was supportive of the finding that Mr Macdonald, on or about that date, knew that the Obeids owned a property at Mount Penny. The timing of the various communications and activities referred to above provides ample support for that conclusion and no basis for a reasonable doubt as to Mr Macdonald’s knowledge of that fact as at 9 May 2008. It also supports the inference that Mr Moses Obeid was involved in plans to exploit a coal reserve at Mount Penny as at 9 May 2008.

There were two further “reasonable hypotheses” raised by Mr Macdonald which have not been addressed. Two (particulars (e) and (f)) concerned the possibility that Mr Macdonald would have engaged in the conduct alleged absent the improper purpose and that the Obeids did not appreciate that he would have done so. The underlying premise was that the prosecution needed to establish beyond reasonable doubt that Mr Macdonald would not have done what he did in order to benefit the Obeids “but for” the improper purpose.

In ground 1(3) a challenge was brought to the failure of the trial judge to find that there was no conspiracy because the prosecutor failed to allege that Mr Macdonald would not have done the acts the subject of the agreement “but for” the improper purpose. That ground was rejected on the basis that the trial judge in fact approached the matter on the basis that she did have to be so satisfied, and was. However, for the reasons given in considering the legal basis of the appellants’ submissions on that ground, the charge of conspiracy did not engage such an element.

Furthermore, the contention was factually incoherent. The improper purpose was to benefit the Obeid family by releasing confidential information and acting partially towards them. It would have made no sense for Mr Macdonald to take such steps in the absence of an agreement. The element of “wilful misconduct” required that the steps be taken pursuant to the agreement and in breach of Mr Macdonald’s public duties. By way of analogy, in Jackson and Hakim, [343] it would have been no answer to the charge against Mr Jackson of taking a bribe to release a prisoner that he had intended to direct the release of the prisoner in any event. On a proper understanding of the charge, the legal premise underlying these particulars fell away.

Finally, particular (g) alleged that the conduct agreed upon was “not serious and meriting criminal punishment”. This was a restatement of ground 1(5) which alleged an error in the indictment in failing to include as an element the agreement that the conduct was serious and meriting criminal punishment. [344] As explained in relation to that ground, the parties to the conspiracy did not have to agree on the legal characterisation of their conduct. This particular had no relevance under ground 2.

Otherwise, the various particulars of the unreasonable verdict ground have been addressed.

In a section of the judgment not the subject of challenge, findings were made with respect to the attempted change to the legal ownership of Cherrydale Park. The purchase had been undertaken by Locaway Pty Ltd as trustee for the Moona Plains Family Trust, the primary beneficiaries of which were the four children of Mr Obeid Snr, who was the appointor. An attempt was made, commencing in February 2008, to alter the ownership. By a letter dated 14 February 2008, addressed to Mr Obeid Snr, at Coalpac Group Pty Ltd at Birkenhead, Mr Anthony J Cordato, solicitor, stated:

Mr Cordato advised that he had already written to the solicitor for the Cherrys, seeking their client’s consent to the substitution of United Pastoral Group Pty Ltd for Locaway Pty Ltd as mortgagor.

United Pastoral Group Pty Ltd was originally incorporated under a different name with the registered office of SJ Sassine & Co, an accountant who worked for the Obeids. On 15 February 2008, Mr Andrew Kaidbay was appointed as director and secretary and became the holder of what appear to be the issued capital of the company. In fact, the name of the company was not changed to United Pastoral Group Pty Ltd until 30 September 2008.

In October 2008, Mr Sassine sent Mr Cordato a trust deed. The deed was apparently dated 25 October 1994, but Mr Sassine stated that “[t]he new trustee as from Feb 2008 should be United Pastoral Group Pty Ltd”. The delay between mid-February and early-October 2008 is not explained, but it is apparent that Mr Obeid Snr considered it necessary to remove any association of the Obeid family from the ownership of Cherrydale Park.

As Mr Cordato was aware, the change in the trustee required the consent of the mortgagee. Accordingly, he wrote to the solicitors for Mr Cherry on 15 October 2008. Nothing appears to have occurred at that stage, and Mr Cordato followed up with a telephone discussion and a letter dated 9 February 2009. The solicitors replied on 12 February 2009 stating that Mr Cherry had already indicated to Mr Obeid Snr that “the reasons for the change would need to be provided before the request would be considered”.

On 16 February 2009, Mr Cordato responded: [345]

Mr Cherry was called as a witness and gave evidence of having spoken to Mr Obeid Snr in February 2009. The following exchange took place: [347]

In relation to the solicitor’s statement that the reason for the change in trustee was “to protect the privacy of our clients”, Mr Cherry stated: [348]

As the prosecutor submitted at the trial, the various attempts, commencing in February 2008 and continuing for over a year, by the Obeids to change the legal ownership of Cherrydale Park were undertaken with the objective of distancing the Obeid family from ownership of the property. The step first taken by Mr Obeid Snr in February 2008 was not pursued for a few months, but was renewed within a month of the EOI package, which included a diagrammatic representation of the Mount Penny area which overlaid Cherrydale Park, being released on 9 September 2008. [349] As submitted at trial and on the appeal, the later steps by Mr Obeid Snr did not fall within the period of the conspiracy; nevertheless, taken as a whole, the conduct provided unequivocal evidence of an attempt to distance the Obeid interests from ownership of the land and thus support for the case that Mr Obeid Snr was implicated in the improper purpose of the conspiracy.

In 2010, Ms Anne Davies wrote an article in the Sydney Morning Herald as a result of research she had undertaken in relation to coal in the Bylong Valley. Relevantly, she had spoken to Mr Moses Obeid. She gave evidence based on her notes on a voir dire (which was subsequently admitted in the trial) in the following terms: [350]

There was ample documentary evidence that Mr Moses Obeid, a friend of Mr Lewis, had taken steps to arrange for him to purchase Coggan Creek. Accordingly, the statement made to the journalist, Ms Davies, was a fabrication. The judge’s acceptance of the submission that this was a deliberate lie was not challenged on the appeal. [351]

In December 2012, both Mr Obeid Snr and Mr Moses Obeid were interviewed by two journalists, Mr Shanahan and Ms Jiminez over three days, being 18, 20 and 21 December 2012. Mr Obeid Snr participated in the interview on 18 December 2012 only. [352]

The prosecution identified 36 lies which were said to have been made attributable to Mr Moses Obeid in the course of the interview. Consideration of that case led to an interlocutory judgment (R v Macdonald (No 15)) to which is annexed a schedule of lies and admissions. [353] The judge then returned to that document and made the following finding:

After then identifying the circumstances in which the interviews were conducted, namely the commencement of a public inquiry by the ICAC on 12 November 2012, the terms of which were set out at [1972], the judge continued:

Although the trial judge based her findings in respect of this evidence in part on earlier findings adverse to Mr Moses Obeid, taking the evidence as a whole, the statements to the journalists relied on as lies by the prosecutor should be accepted as such and provide significant support for the prosecution case.

As has been noted, in dealing with a circumstantial case, and particularly one involving a conspiracy, the manner in which the unreasonableness submissions were formulated under common ground 2 was problematic. [354] Rather than consider whether there was a reasonable hypothesis consistent with an innocent explanation in respect of each particular matter relied upon by the trial judge, it was necessary to engage in an assessment of the whole of the evidence in order to articulate a reasonable doubt as to the correctness of the verdict.

It may readily be accepted that some of the material relied upon was more powerful than other elements. However, each of the verdicts was capable of support in circumstances where the indispensable elements were established beyond reasonable doubt, but only on the evidence and the inferences drawn from the evidence. The Court is of the view that the prosecution proved beyond reasonable doubt the existence of a conspiracy as alleged in the indictment, and that each of the co-accused were participants in it at the time at which it was formulated, namely prior to 9 May 2008. We do not entertain a reasonable doubt in that respect. There is therefore no need to consider whether the trial judge had a particular advantage which might have explained all or some aspects of a doubt which we entertained.

The nature of the charge and the complexity of the evidence justify a grant of leave to appeal, to the extent that that is necessary, pursuant to s 5(1)(a) of the Criminal Appeal Act. Such leave should be granted with respect to each appellant.

However, in each case the appeal must be dismissed.