Obeid v R

1. [1]

   THE COURT: Mr Edward Moses Obeid was formerly a member of the Legislative Council of New South Wales. On 8 May 2015 he was arraigned on an indictment charging him with one count of wilfully misconducting himself in a public office. The indictment has been amended, and now charges him as follows:

2. [2]

   Mr Obeid has pleaded not guilty to the charge. His trial, originally fixed to commence on 19 October 2015, has been adjourned. By notice of motion dated 9 September 2015, he applied (apparently, pursuant to s 17 of the Criminal Procedure Act 1986 (NSW)) for the indictment to be set aside, stayed or quashed, on a suite of grounds. No point appears to have been taken that the application was made too late: cf R v Beckett [2015] HCA 38 at [3]. The primary judge, Beech-Jones J, heard wide-ranging argument over two days on 9 and 10 September, and dismissed the application on 22 September 2015 for reasons which may fairly be described as comprehensive, and which have significantly assisted the resolution of this appeal: R v Obeid (No 2) [2015] NSWSC 1380.

3. [3]

   The primary judge declined to certify that the judgment was one appropriate for determination on appeal: R v Obeid (No 3) [2015] NSWSC 1441. Accordingly, Mr Obeid seeks and requires leave to appeal, under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), relying on most of the matters raised at first instance. The Crown did not oppose leave being granted, and argument proceeded on the basis that there would be a grant of leave.

4. [4]

   The appeal was given a high measure of expedition, in light of the adjourned trial set down early next year.

5. [5]

   The issues arising are as follows: (a) Does the Supreme Court have jurisdiction to hear and determine the charge, or is this a matter within the exclusive jurisdiction of the Legislative Council? (b) Is a member of the Legislative Council a “public officer” for the purposes of the offence? (c) Should the indictment be stayed because parliamentary privilege, associated with but not limited to Article 9 of the Bill of Rights, will prevent the misconduct being proved? (d) Is the indictment bad for extending the charge beyond conduct “in the course of” Mr Obeid’s office to conduct “connected to” that office? (e) Did the primary judge err in formulating the duty owed by Mr Obeid?

6. [6]

   For the reasons which follow, Mr Obeid’s submissions on each of those issues must be rejected and his appeal dismissed.

A. Does the Supreme Court have jurisdiction to hear and determine the charge?

1. [7]

   The question of jurisdiction should be addressed at the outset.

2. [8]

   Jurisdiction was only raised late, in oral submissions when the motion was heard by the primary judge (“It has occurred to my learned friend, Mr Nixon and I, reading the authorities this morning, that there may be a preliminary issue of jurisdiction in this case”). That may in part explain why the primary judge took the unusual course of addressing it last: see at [8].

3. [9]

   Mr Obeid invited this Court to defer the question of jurisdiction, which would not arise if he were right about the meaning of “public officer”. But the “first duty” of a court is to determine whether it has jurisdiction. In this country, that obligation is associated with the statement by Griffith CJ in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415; subsequent decisions may be seen in Zhang v Zemin [2010] NSWCA 255; 79 NSWLR 513 at [39]-[45]. The importance of doing so was made plain in CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; 261 ALR 441 at [22] and Eberstaller v Poulos [2014] NSWCA 211; 87 NSWLR 394 at [14]-[32]. It is difficult to envisage situations where the determination of jurisdiction should be deferred, especially if, as here, jurisdiction is contested. Acceding to the request would create the possibility of a decision made without jurisdiction, which is not only unsatisfactory to the losing litigant, but may also give rise to submissions as to its precedential authority (indeed, one of Mr Obeid’s submissions on the “in connection with” point concerning R v Quach [2010] VSCA 106; 201 A Crim R 522 bore precisely this flavour).

4. [10]

   Jurisdiction divides into subject-matter and personal jurisdiction: see PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission [2012] HCA 33; 247 CLR 240 at [14]-[17]. A court must, if it is to have authority to decide a controversy, have jurisdiction both over the parties and also in respect of its subject matter. Mr Obeid’s submissions as to jurisdiction are based on the latter, not the former. He did not object to the Supreme Court’s jurisdiction when pleading not guilty, nor when applying for the indictment to be quashed or stayed, and thus there can be no question but that the court has personal jurisdiction over him. The position would have been different in the eighteenth century, had he been a member of the House of Commons, as the famous decision of the Court of Common Pleas in R v Wilkes (1763) 2 Wils KB 151 illustrates. Members of Parliament, at least in England, formerly enjoyed an immunity from some forms of criminal process, including an immunity from arrest for crimes excluding treason, felonies and breaches of the peace: see E Campbell, Parliamentary Privilege in Australia (1966, Melbourne University Press) pp 60-61 (a passage not appearing in the later edition).

5. [11]

   In order to advance the submission that the subject matter of the charge falls within the exclusive jurisdiction of the Legislative Council, Mr Obeid drew upon a deal of authority directed to a different, not to mention highly complex, area, namely, the implied powers of a chamber of the New South Wales Parliament. He contended that the chamber’s powers and privileges were now to be equated to those of the House of Commons. Even if that were not so, Mr Obeid’s proposition was that the powers and privileges of the Legislative Council were such as to place the charge made against him within the exclusive jurisdiction of the chamber, and thus outside the jurisdiction of the Supreme Court of New South Wales. He submitted that:

6. [12]

   For a number of reasons, this is not the right way to approach the threshold question in this appeal.

7. [13]

   Mr Obeid correctly observed that the High Court had declined fully to resolve all of the issues argued in Egan v Willis [1998] HCA 71; 195 CLR 424. The essential difficulty is that the New South Wales Constitution has no provision, such as s 49 of the Commonwealth Constitution or s 19 of the Constitution Act 1975 (Vic), equating the powers, privileges and immunities of the chambers of the New South Wales Parliament with those of the House of Commons in the United Kingdom. Nor has legislation been enacted seeking to state those powers, privileges and immunities generally (contrast the Parliamentary Privileges Act 1987 (Cth)), although bills to do so were introduced in 1879, 1901, 1911 and 1912: see Egan v Willis at [180]. In the absence of any express conferral of power, it has been found necessary to resort to old law, often associated with Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225 (on the powers of the House of Assembly of Newfoundland), as to the implication of powers which are “necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute”. This is sometimes described as a test of “reasonable necessity”: see Egan v Willis at [31].

8. [14]

   The Legislative Assembly and Legislative Council of New South Wales have been – more so than any other chamber in the British Empire and, later, Commonwealth – the occasion for appellate litigation on this issue. The appeals include Barton v Taylor (1886) 11 App Cas 197; Willis and Christie v Perry (1912) 13 CLR 592; Armstrong v Budd (1969) 71 SR (NSW) 386; Egan v Willis and Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563. Even so, basic questions such as whether either chamber has power to punish or to expel a member remain unsettled: see Egan v Willis at [55], [108] and [184].

9. [15]

   Mr Obeid invited this Court to adopt the submissions of the Commonwealth Solicitor-General in Egan v Willis summarised at 195 CLR 432-433 as to the enhanced powers of the Legislative Council following the enactment of the Australia Acts 1986 (Cth) and (UK). The submission elaborated upon earlier obiter statements to similar effect by Mahoney P and Priestley JA in Egan v Willis in this Court: (1996) 40 NSWLR 650 at 685-6 and 691-2. The Commonwealth Solicitor-General had referred to the role of State Parliaments under the Commonwealth Constitution, by reference to ss 7, 9, 10, 15, 25, 29, 30, 31, 41, 51(xxxvii) and (xxxviii), 95, 107, 108, 111, 123 and 124, and ss 1 and 3 of the Australia Acts.

10. [16]

    Mr Obeid’s invitation must be rejected. This Court must not rule on this submission, the question plainly being one arising under the Constitution, so that the duty in s 78B(1) of the Judiciary Act 1903 (Cth) applies. It may confidently be inferred that Mr Obeid made a deliberate and considered choice not to distribute requisite notices under s 78B. The matter was raised squarely by Senior Counsel for Mr Obeid at a directions hearing on 2 October 2015. Senior Counsel for Mr Obeid described in some detail the late service of s 78B notices in Egan v Willis (by reference to p 431 of the report in the Commonwealth Law Reports) and outlined the potential for arguments turning upon ss 106 and 107 of the Constitution and the Australia Acts. It was then said:

11. [17]

    Even if s 78B(1) did not prevent this Court from determining the question, Mr Obeid, having made those forensic choices, should be confined to the narrower submissions outlined by his Senior Counsel on 2 October 2015.

12. [18]

    However, the answer to the threshold question of jurisdiction does not turn upon the tactical decisions made by Mr Obeid. It is possible to take a course resembling that taken by the High Court in Egan v Willis. The High Court was able to resolve that appeal, favourably to Mr Willis, on the basis that the power of the Legislative Council was as narrow as that for which Mr Egan contended: see at [34]. Similarly, and without deciding the point, the balance of this appeal can be decided on the assumption, favourable to Mr Obeid, that the powers and privileges of the Legislative Council are, subject to statute, the same as those of the House of Commons.

13. [19]

    All of that said, the starting point of legal analysis is not the powers and privileges of the Legislative Council, but the jurisdiction of the Supreme Court of New South Wales. Egan v Willis was about an implied power, while Mr Obeid contends in his appeal for an exclusion from this Court’s jurisdiction. The test for determining whether a court lacks jurisdiction is different from the test for determining whether a parliamentary chamber has a power or privilege.

14. [20]

    Mr Obeid conceded, readily and responsibly, that members of Parliament are subject to the ordinary criminal jurisdiction of the courts including the Supreme Court. That follows from the original conferral of jurisdiction (by reference to the jurisdiction of the superior courts at Westminster) when the Supreme Court of New South Wales was established, and is confirmed by s 23 of the Supreme Court Act 1970 (NSW) which provides that the Supreme Court “shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”.

15. [21]

    Mr Obeid submitted that that grant was to be read as subject to principles from the Constitution Act 1902 (NSW). Alternatively, he submitted that it was not “necessary” for this Court to have subject-matter jurisdiction in respect of the conduct to which the indictment was addressed.

16. [22]

    However, as Mr Obeid properly acknowledged, it is not appropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words: The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421. As was said in this context in Rost v Edwards [1990] 2 QB 460 at 478:

17. [23]

    Mr Obeid also conceded, properly, that any exclusive jurisdiction on the part of the Parliament or one of its chambers is subject to statute. Examples of the latter may be seen in the particular legislation in Arena v Nader (1997) 42 NSWLR 427 or, more generally, the legislation authorising investigations by the Independent Commission Against Corruption into corrupt conduct including by members.

18. [24]

    In short, Mr Obeid accepted that to the extent that some power or privilege of the Legislative Council deprived the Supreme Court of subject-matter jurisdiction, the power or privilege had to be read subject to statute, and the deprivation of jurisdiction was to be assessed against the presumption that clear language was required to do so.

19. [25]

    In support of his submission that the Supreme Court lacked jurisdiction, Mr Obeid relied on a range of matters. First, he pointed to the famous words of Dixon CJ, speaking for the whole Court, in R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162:

20. [26]

    Mr Obeid fastened upon the word “occasion”. His submission was that there was no dispute that the chamber had power to discipline him for misconduct. It followed, so it was said, that it was for the chamber and the chamber alone to judge whether or not Mr Obeid had in fact misconducted himself, and if so what measures were appropriate.

21. [27]

    He pointed to the appropriateness of that result, by reference to Article 9 of the Bill of Rights, and the “wider principle” of which Article 9 was a manifestation, and questions of deference by the courts to the Parliament. Article 9 of the Bill of Rights 1689 (1 Will & Mar sess 2 c 2) provides:

22. [28]

    Egan v Willis confirms that Article 9 applies in New South Wales (see at [129]). Mr Obeid submitted that it was sufficient for the conduct to be incidental to speech or proceedings in Parliament in order to attract the privilege. He submitted in writing that:

23. [29]

    In oral submissions, Mr Obeid acknowledged the difficulty of formulating the metes and bounds of any area of exclusive jurisdiction, but relied on what was said by McHugh J in Egan v Willis at [67]:

24. [30]

    The “wider principle” of which Article 9 was a manifestation was mentioned in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332, to the effect that “the courts and Parliament are both astute to recognise their respective constitutional roles”. Mr Obeid pointed to what he said was an exclusive code regulating conflicts of interest, found in s 14A of the Constitution Act 1902 (NSW), and to the Code of Conduct governing members of the Legislative Council. He emphasised that part of the Crown case was that the allegations against him were, at the least, “connected with” his office.

25. [31]

    Mr Obeid relied on certain industrial relations decisions, principally Canada (House of Commons) v Vaid [2005] SCC 30; 1 SCR 667 and President of the Legislative Council (SA) v Kosmas [2008] SAIRC 41; 175 IR 269. In the former, Mr Vaid was the chauffeur to the Speaker of the Canadian House of Commons, and argued that his employment was sufficiently connected with proceedings in Parliament or the internal affairs of the chamber so as to be within the exclusive jurisdiction of the chamber. The submission was rejected. However, Binnie J, who delivered the judgment of the Supreme Court of Canada, acknowledged that there were some matters which were:

26. [32]

    Vaid was applied by the South Australian Industrial Relations Court in Kosmas, a claim for overtime made by the secretary of a parliamentary committee. The Full Court determined, as a preliminary question, that the Industrial Relations Court of South Australia lacked jurisdiction. It divided those engaged by a chamber of Parliament into two groups: those “engaged in the direct business of the House, the investigation, debate and legislating”, and “those indirectly engaged”: at [40]. It found that Mr Kosmas fell into the former category, and that “the dignity and efficiency of the legislation [scil, Legislature] would be diminished by answering the requirements of a trial of the issues and submission to the authority of a Court”: at [41].

27. [33]

    Mr Obeid submitted that the subject matter of the crime with which he had been charged fell within the same area of exclusive cognisance of the Legislative Council.

28. [34]

    Finally, in response to a submission by the Crown characterised by Mr Obeid as “because the Parliamentarian will get off scot free”, he submitted that even on a restrictive view, the chamber had powers which could be used “for discipline, for protective purposes, for defensive purposes, for coercion ... and for specific and general deterrence” in relation to misconduct by a former member.

29. [35]

    Mr Obeid’s submissions on jurisdiction must be rejected for the following reasons.

30. [36]

    First, as Lord Phillips PSC said in R v Chaytor [2010] UKSC 52; [2011] 1 AC 684 at [64], “[t]he exclusive cognisance of Parliament was originally based on the premise that the High Court of Parliament had its own peculiar law which was not known to the courts”. The same idea underlies the traditional approach to the exclusive jurisdiction of visitors of lay corporations: see R v Hull University Visitor; Ex parte Page [1993] AC 682 at 695 (it may be controversial if and to the extent that that continues in Australia: see Griffith University v Tang [2005] HCA 7; 221 CLR 99 at [40]). But there was no suggestion by Mr Obeid, nor could there be, that the underlying principle had any bearing upon the Supreme Court’s jurisdiction to hear and determine the common law misdemeanour with which he has been indicted.

31. [37]

    Secondly, Mr Obeid misreads what was said in R v Richards; Ex parte Fitzpatrick and Browne. Let it be assumed for present purposes, favourably to Mr Obeid and contrary to the submissions of the Attorney-General, who appeared as amicus, that the Legislative Council has power to discipline a former member for misconduct. Even so, it is readily seen that the argument proves too much. It by no means follows that anything which might fall within the ambit of that power thereby falls within the exclusive jurisdiction of the chamber. The “occasion” for the exercise does not mean that a court has no jurisdiction merely because a chamber might choose to exercise a power.

32. [38]

    Dixon CJ’s words in R v Richards; Ex parte Fitzpatrick and Browne were directed to the jurisdiction of courts. The Chief Justice was confirming, in the first half of the sentence quoted above, that the existence of a privilege or power on the part of the parliamentary chamber was something of which the court was the ultimate arbiter. The second half of the sentence presupposed that it was no longer in dispute as to whether the power or privilege existed (“given an undoubted privilege”). In those circumstances, the courts had no authority to decide whether the exercise of the power or privilege was or was not called for in any particular case, and no authority to decide whether the way in which the power or privilege had been exercised was too harsh or too lenient. The passage says nothing in support of Mr Obeid’s submission that a court lacks jurisdiction in respect of some statutory or common law claim.

33. [39]

    That accords with the position in respect of the House of Commons. In R v Chaytor, the leading judgments were those of Lord Phillips PSC and Lord Rodger JSC. Both dealt in terms with the overlapping criminal jurisdiction of the courts and the House of Commons. Lord Phillips said at [83]:

34. [40]

    Lord Rodger rejected the notion of exclusive jurisdiction at [108]:

35. [41]

    As noted at the outset, it does not for present purposes matter what the precise scope of the powers and privileges of the Legislative Council of the New South Wales Parliament be. They do not exceed those of the House of Commons, and matters which do not fall within the exclusive jurisdiction of the House of Commons likewise do not fall within the jurisdiction of the Legislative Council.

36. [42]

    Thirdly, it is essential to bear in mind the applicable statutory provisions. Section 14A, on which Mr Obeid relied does not assist, and s 13A, to which this Court directed his attention, is inconsistent with his submission.

37. [43]

    Section 13A of the Constitution Act 1902 (NSW) relevantly provides:

38. [44]

    Section 13A(3) is expressly inconsistent with exclusive jurisdiction. The sole purpose of that subsection is to confirm that the powers of the chamber may be exercised concurrently with those of the court. That is to say, the premise of s 13A is that a court has subject-matter jurisdiction when a member is charged. It follows that, to that extent, the jurisdiction of the parliamentary chambers cannot be exclusive.

39. [45]

    What is more, s 13A is squarely directed to the power of a chamber to determine misconduct by its members, and the ultimate sanction of expulsion from the chamber. The section necessarily entails that the composition of the chamber may be affected by a curial determination of criminality. Indeed, its effect is that the curial determination ipso facto will give rise to a vacancy in the member’s seat.

40. [46]

    Section 13A may be contrasted with s 14A, on which Mr Obeid relied. Section 14A empowers the making of regulations relating to the disclosure of pecuniary interests. Section 14A(2) empowers a chamber to declare a member’s seat vacant if the member has wilfully contravened such a regulation. It may be accepted that the conduct with which Mr Obeid has been charged falls within the scope of that power.

41. [47]

    Although s 13A necessarily entails a concurrent jurisdiction of the courts and the parliamentary chamber, there is nothing (save for Mr Obeid’s assertion) to suggest that s 14A supports an exclusive jurisdiction of a chamber of Parliament. There is nothing to suggest that the s 14A(2) mechanism is exclusive, and when ss 13A and 14A are read together, as they must be, it is plain that s 14A cannot be so regarded. The Code of Conduct, on which Mr Obeid also relied, takes the matter no further.

42. [48]

    Fourthly, all of the foregoing is also consistent with the series of cases on bribery of members of Parliament referred to below, including R v White (1875) 13 SCR (NSW) (L) 322, R v Boston (1923) 33 CLR 386 and (more recently) R v Greenway [1998] Public Law 357. It should be regarded as settled that a member of the New South Wales Parliament can be prosecuted in a court for accepting a bribe, or for conspiring to accept a bribe. Despite the lengthy submissions in this Court, and before the primary judge, these questions were settled by R v White and R v Boston.

43. [49]

    Fifthly, turning to the industrial relations cases on which Mr Obeid relied, it must be noted that Kosmas was a decision of an inferior court of limited jurisdiction. It is not an intermediate court of appeal to which the principles of comity stated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 apply. Next, the Solicitor-General appeared for the President, and Mr Kosmas appeared for himself. The resulting “inequality of arms” detracts from the weight to be given to the decision (see for example White v Johnston [2015] NSWCA 18; 87 NSWLR 779 at [100]-[101]). But, fundamentally, it is one thing for a specialised body dealing with industrial relations not to have authority over certain persons employed within a Parliament. It is another thing entirely to deny jurisdiction in respect of a crime at common law to a superior court of record.

44. [50]

    Taking the principles stated in Vaid and Kosmas at their highest, the question arises why it is necessary for the dignity of the Parliament or its chambers, or for the maintenance of some power or privilege, to exclude the jurisdiction of the Supreme Court in respect of the indictment in this prosecution. There is no reason why that should be so, and indeed s 13A tells powerfully against any such inference being drawn.

45. [51]

    Sixthly, turning to the reliance placed upon Article 9 and the principles associated with it, let it be assumed, favourably to Mr Obeid, that matters wholly internal to a chamber fall within that chamber’s exclusive jurisdiction, in accordance with what McHugh J said in Egan v Willis at [67]-[70]. Without seeking to delineate the limits of that jurisdiction, it is plain that the Supreme Court has jurisdiction over the indictment to which Mr Obeid has entered a plea of not guilty, for the following reasons.

46. [52]

    The indictment does not in its terms make allegations of any conduct within the walls of Parliament relating only to the internal procedure of the chamber.

47. [53]

    Further, even on the broadest view of Article 9, the indictment in no way impeaches speech within Parliament, or any proceedings in Parliament. Mr Obeid relied upon the expansive definition of “proceedings in Parliament” in s 16(2) of the Parliamentary Privileges Act 1987 (Cth): “all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee”. Let it be accepted, for the sake of argument, that the federal Act accurately describes the meaning of “proceedings in Parliament”. Even so, it is plain that the indictment does not concern matters incidental to parliamentary speech or proceedings. This turns on the nature of the Crown case. Different considerations arise if the defence of a charge is impacted by parliamentary privilege. As was said in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 338, “there may be cases in which the exclusion of material on the grounds of parliamentary privilege makes it quite impossible fairly to determine the issue between the parties”. But those matters go to the different question of whether the prosecution ought to be stayed (which is touched on in section C below). The question of jurisdiction does not turn on the nature of the defence of the accused; if that were not so, there would be cases where a court had jurisdiction to accept a guilty plea and impose sentence, but no jurisdiction to determine the accused’s guilt following a plea of not guilty.

48. [54]

    Moreover, the passages from R v Chaytor relied on by Mr Obeid do not support the propositions for which they have been cited. Paragraph 122 in terms concerned the “overlapping” jurisdiction of the chambers to deal with conduct as a contempt and the ordinary criminal jurisdiction of courts. It was sufficient in R v Chaytor to observe that a prosecution of members for abusing their allowances did not touch upon the core activities as members; that does not mean that the converse proposition – anything which does touch upon the core activities of a member is within the exclusive jurisdiction of the chamber – is made out. But if Mr Obeid’s submission were accepted, then the necessary consequence would be that no court could prosecute a charge of bribery in relation to a member’s vote, or criminal conspiracy in relation to a member’s vote, both of which are matters more closely connected with the functions of members than the conduct with which Mr Obeid has been charged. That is contrary to R v White, R v Boston and R v Greenway which are addressed below.

49. [55]

    The primary judge was correct to reject Mr Obeid’s submission that the Supreme Court of New South Wales lacked jurisdiction in respect of this trial.

B. Does a member of the Legislative Council hold a “public office” for the purposes of the offence?

1. [56]

   Mr Obeid submitted that a member of the Legislative Council did not hold public office. He relied upon what was said by Lord Mansfield in R v Bembridge (1783) 3 Dougl 327; 99 ER 679; 22 St Tr 1, which was said to tell against the offence extending to members of Parliament. He referred to the language in the judgment of “appointed” to an office and the “grant” of an office, to the office being “accepted”, and to the importance of being answerable criminally to the King. He added that the office should be seen as executive or administrative, or governmental. By reference to historical notions, as well as to the language of the Constitution Act 1902 (NSW), he submitted that a member of the Legislative Council did not fall within that description.

2. [57]

   Mr Obeid emphasised the fact that there was no case of the offence ever being prosecuted against a member of Parliament, and said that this Court should defer to the judgment of the Executive disclosed by the absence of prosecutions. He relied heavily on the dissenting judgment of Gavan Duffy and Starke JJ in R v Boston, and on selected writings, mostly but not invariably from the nineteenth century. Thus it was that his Senior Counsel submitted:

3. [58]

   The submissions were advanced efficiently and capably, not to mention forcefully. However, they must be rejected. It is convenient to adhere more closely to the order of topics addressed in the written submissions, and start with R v Bembridge.

4. [59]

   The case law has long treated R v Bembridge as the modern starting point for this offence. Mr Obeid proceeded on that basis. Lord Mansfield CJ there said, of an accountant in the office of the Receiver and Paymaster-General of the Forces who concealed omissions in the final accounts in 3 Dougl 327 at 331:

5. [60]

   As reported in State Trials (22 St Tr 1 at 155) the passage is:

6. [61]

   Mr Obeid favoured the much longer report in the State Trials, which purports to be the original, unrevised shorthand taken by Mr Gurney for the Treasury (see at 27). There are difficulties with both reports. The report in the State Trials was the first volume published by Thomas J Howell, who took over editing the fifth edition of the report from his father, Thomas Bayley Howell, in 1817, more than three decades after the decision was delivered. The reporter is unknown. Holdsworth wrote that:

7. [62]

   The first two volumes of the reports of Sylvester Douglas (later, Lord Glenbervie) have always been highly regarded. However, the third volume was not published until 1831, and one scholar has recently observed that the publisher had compiled nearly the whole of the third volume from “[s]everal volumes of notes by an unknown hand, apparently taken with care and accuracy”: J Oldham, “The indispensability of manuscript case notes to eighteenth-century barristers and judges” in A Musson and C Stebbings (eds), Making Legal History (2012, Cambridge University Press) 30 at 37, and see p iv of the preface to Vol III.

8. [63]

   However, it will not be necessary to take the point any further, because the points Mr Obeid sought to draw emerge moderately clearly from both reports. Both reports employ the language of “acceptance”, of the “appointment” and “grant” of offices. Both reports in substance refer to an office holder being accountable criminally to the King. It is true that the report in the State Trials contains references to a series of offices “granted” indirectly from the King, and to “the king as the executive part of the constitution”.

9. [64]

   Mr Obeid made the sound point that the language of the Constitution Act 1902 (NSW) is different. Members of the Legislative Council are said in that Act to hold a seat, rather than being appointed to an office. They are not answerable to the Crown. They are not members of the Executive. Perhaps Mr Obeid’s most powerful point based on the text of the Constitution Act emerges from ss 47 and 47A. Those sections refer in terms to the appointment of public officers by the Governor with the advice of the Executive Council, in marked contradistinction with the language used to describe members of the legislative chambers.

10. [65]

    That said, a member may not sit or vote until he or she has taken the pledge of loyalty “to Australia and the people of New South Wales” or the oath of allegiance to the Sovereign, Her heirs and successors according to law: Constitution Act, s 12.

11. [66]

    There are, however, a series of difficulties with this textual submission which emerge from R v Bembridge. The first is that Lord Mansfield did not himself use the language of “public office” or “public officer”. By way of anticipation of what follows, it will be noted that the language of “public office” is not used in either passage reproduced above; instead Lord Mansfield is reported as referring to “a trustee of the public” and either an “office of trust concerning the public” (Douglas) or an “office of trust and confidence concerning the public” (State Trials).

12. [67]

    The second is that Lord Mansfield was focussing upon the breadth of the offence, and not adverting to the question whether it extended to a member of Parliament. It is difficult to read into the broad language used by Lord Mansfield in respect of a man who plainly held a public office in the executive government a limitation excluding a member of Parliament.

13. [68]

    The third is that the references to “answerable to the king” and the executive part of government are necessarily to be read broadly, in a way which extends to judicial officers. That is clearest from the report in the State Trials, favoured by Mr Obeid. Accordingly, only limited weight is to be given to language which might be thought ordinarily to exclude members of the Legislature.

14. [69]

    The fourth difficulty is fundamental. This is not a case of a statutory offence. It is a case of an offence at common law. The common law has shown a strong disinclination to delineate the scope of the offence. This is apparent from the extracts from R v Bembridge reproduced above, as well as from subsequent decisions. Some were reviewed by Lord Parker CJ in R v Llewellyn-Jones [1968] 1 QB 429, who endorsed the approach taken by the primary judge (Widgery J) not “to attempt to give an exhaustive definition of what was covered by misbehaviours in a public office” (at 436). More recently, and in this country, Olsson J, after reviewing the earlier authorities, stated in Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63 at 78 that “the emphasis was not on any generic description, by way of nomenclature, but, rather, the inherent nature of the detailed conduct”. In the same appeal, Doyle CJ agreed generally with Olsson J’s judgment, and approved the following statement by P Finn in “Official Misconduct” (1978) 2 Criminal Law Journal 307 at 307:

15. [70]

    For those reasons, R v Bembridge does not provide the powerful support in favour of Mr Obeid’s submissions that was attributed to it.

16. [71]

    In order to determine what R v Boston stands for, it is helpful to go behind the report of the High Court judgment in (1923) 33 CLR 386.

17. [72]

    A criminal information was filed in 1923 against Walter James Boston, John Andrew Harrison and Henry Ernest Mitchelmore. Boston had been a member of the Legislative Assembly. The three men were charged with two counts, in respect of the second of which the trial judge, Ferguson J, allowed a demurrer. Only the second count came before the High Court, on an urgent appeal by the Attorney-General.

18. [73]

    The second count was that:

19. [74]

    The report on p 5 of the Sydney Morning Herald on 25 September 1923 of the submissions made by Mr Mack KC, who appeared for Mr Boston, the member of Parliament, includes the following:

20. [75]

    The ruling by Ferguson J was reported in the Sydney Morning Herald on 26 September 1923, p 10:

21. [76]

    A majority of the High Court granted special leave, allowed the appeal, and set aside the judgment of Ferguson J. The application was argued over four days. Whether or not a member of the Legislative Assembly was a public officer, as was alleged in the information, was squarely in issue, as is apparent from the reports of argument as summarised in the Commonwealth Law Reports. Mr Mack is recorded as submitting (33 CLR 386 at 391):

22. [77]

    More details of the submissions advanced to the High Court may be found in newspaper reports. Relevantly for present purposes, the Sydney Morning Herald (17 November 1923, p 14), recorded:

23. [78]

    Mr Obeid placed great reliance upon the reasons of Gavan Duffy and Starke JJ. It was said that they were “[t]he only two judges ever to look at this issue”. The entirety of their Honours’ reasoning on this issue is as follows at 413:

24. [79]

    Thus Gavan Duffy and Starke JJ in terms responded to the submission that the inclusion of the words “a public officer” was critical to the validity of the information. Their Honours’ reasons are short, and dissenting. They favoured dismissing the appeal, and were therefore, as Mr Obeid pointed out, taken to have been proceeding on the basis that special leave had been granted (the Commonwealth Law Reports record at 388 that although special leave had not been granted, the appeal was argued as if it had, reserving to the defendants the right to seek its revocation).

25. [80]

    It may be accepted that the passage from Gavan Duffy and Starke JJ was essential to their Honours’ reasoning, and responded to a submission regarded by King’s Counsel appearing for Mr Boston as dispositive of the appeal. In light of the criticisms made by Mr Obeid of the reasoning of other members of the Court, it must be said that the conclusion of Gavan Duffy and Starke JJ was unsupported by any reasoning or authority. As it was put by the Crown, their conclusion “lacks authoritative support”.

26. [81]

    The majority comprised Knox CJ, Isaacs and Rich JJ, and Higgins J. They agreed to grant special leave, to allow the appeal and to order Mr Boston to answer an information which alleged that he was a public officer.

27. [82]

    Thus a majority of the High Court necessarily rejected Mr Boston’s submission – express on the face of the Commonwealth Law Reports, and confirmed by newspaper reports of the submissions at first instance and on appeal – that a sufficient answer to the second count on the information was that a member of the Legislative Assembly was not a “public officer”. Even if the reasons were opaque on this issue (which they are not), R v Boston is supportive of the Crown’s submissions, not Mr Obeid’s.

28. [83]

    But the reasons of the majority are not opaque on this issue. Although those of Knox CJ do not address the question whether a member of a parliamentary chamber is a public officer, the other members of the majority do so in terms.

29. [84]

    Isaacs and Rich JJ said at 402:

30. [85]

    Mr Obeid was very critical of the reasons of Isaacs and Rich JJ. In particular, he submitted that the reliance on R v White (1875) 13 SCR (NSW) (L) 322 was misplaced, and emphasised that the meaning of “public office” was highly sensitive to context.

31. [86]

    There is force in the latter aspect of Mr Obeid’s submissions. He relied on what had been said in Sykes v Cleary (1992) 176 CLR 77 at 96-97 (“the meaning of ‘office’ turns largely on the context in which it is found”) and Edwards v Clinch [1982] AC 845 at 860, where Lord Wilberforce doubted the value of resorting to dictionary definitions for the meaning of the term “office”. The same point was made more recently by Allsop P in Leerdam v Noori [2009] NSWCA 90; 255 ALR 553 at [48] (“[t]he context in which the question arises will, of course, be important to the ascertainment of its content”) and, more generally, in the authorities considered in 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488 at [81].

32. [87]

    However, it is not correct to submit, as Mr Obeid did, in writing and orally, that Isaacs and Rich JJ were incorrect to say that R v White “held” that a member of Parliament is a public officer.

33. [88]

    In R v White, the question was whether an agreement to pay money to secure the vote of a member of the Legislative Assembly disclosed an offence. The charge was one of bribery as opposed to misconduct. Two of the three judges dealt with the question of public office. Hargrave J concluded at 334 that:

34. [89]

    Mr Obeid submitted that this did not go far enough. He submitted that Hargrave J merely held that it was sufficient in order to sustain an offence of bribery to hold an office “of public trust and confidence”, and that that fell short of amounting to a finding that a member held a public office.

35. [90]

    It may be doubted that the distinction propounded by Mr Obeid is a valid one. It will be seen that Hargrave J’s reasoning amounted expressly to an invocation of what today might be termed coherence, and was alive to the distinction between an executive officer (“who has to carry out the law”) and a member of a parliamentary chamber, such as Mr White. Indeed, Hargrave J’s language closely resembles that of Lord Mansfield in R v Bembridge.

36. [91]

    Faucett J said at 336-339 that:

37. [92]

    Faucett J’s reasons likewise are expressed to turn on whether a member of Parliament holds a public office because it is for that reason that bribing the member or the member’s accepting of a bribe amounts to a misdemeanour. Martin CJ’s reasons did not address the point.

38. [93]

    True it is that R v White does not compel the answer to the question whether a member of Parliament is a public officer for the purposes of the offence of misconduct in a public office. R v White is, after all, a case of bribery. That said, considerations of coherence powerfully tell against a result that it is an offence for a member of Parliament to accept a bribe but not an offence for the same member to engage in other forms of misconduct.

39. [94]

    The fourth and final member of the majority in R v Boston was Higgins J. He addressed the submissions made as to public officer in terms (at 412):

40. [95]

    Thus Higgins J rejected Mr Mack’s submission not on the basis that Mr Boston was a public officer, but on the basis that the submission was insufficient to invalidate the information. Higgins J regarded it as sufficient, in order for the information to amount to a conspiracy involving an agreement to do an unlawful act, for Mr Boston to have been a member of Parliament, “holding a fiduciary relation towards the public”.

41. [96]

    The reasoning in the passage reproduced above reflects what Higgins J had earlier said at 407 by reference to R v Bembridge:

42. [97]

    That passage reflects the language of Lord Mansfield in R v Bembridge. One reading of Higgins J’s judgment is that his Honour was conscious of the criticism (on which, ironically, Mr Obeid relied to undermine what was said by Isaacs and Rich JJ) as to the malleability of the word “office” and returned to the underlying nature of the common law offence.

43. [98]

    Mr Obeid also relied upon some nineteenth and twentieth century non-judicial materials which expressly excluded members of Parliament from the offence.

44. [99]

    Mr Obeid referred to the Seventh Report of Her Majesty’s Commissioners of Criminal Law (1843), which provided in a chapter dealing with “Offences against the Executive Power” that “the term ‘officer’ shall not be deemed to extend to any member of either House of Parliament, as such” (p 153). The chapter does not on its face purport to define the elements of the common law offence.

45. [100]

    Likewise, Sir James Fitzjames Stephen’s Digest of the Criminal Law expressly excluded from his account of offences constituting abuses and obstructions of public authority “any member of either House of Parliament as such” (see article 123 “‘Public Officer’ defined” in the 5th ed, 1894). A footnote in that work explained the rationale:

46. [101]

    It is possible that the footnote reflected the former immunity from process of members of a House of Parliament, as opposed to the elements of the offence. It is also possible that Stephen was merely clarifying that his account was not exhaustive (this is consistent with the previous footnote, which states that “[i]t has not been thought necessary to include in this Part a variety of offences of a very special kind”). Since the nineteenth century authorities do not give any reasoning in support of the statements, it is difficult to know what was the basis of the exception, and accordingly difficult to assess their persuasiveness.

47. [102]

    More recently, the 1976 Royal Commission on Standards of Conduct in Public Life (the ‘Salmon Report’) stated that:

48. [103]

    Little effort is required to perceive that the non-judicial materials are not nearly so one-sided as presented by Mr Obeid. The leading modern commentary is the work by C Nicholls QC et al, Corruption and Misuse of Public Office (2nd ed, 2011, Oxford University Press). At p 73 appears the following passage:

49. [104]

    At p 75 the authors consider R v Boston, recording the passage from Isaacs and Rich JJ reproduced above, and then state:

50. [105]

    The authors proceed to consider with evident approval more recent decisions in England (R v Greenway [1998] Public Law 357) and India (Rao v State of India [1999] 3 LRC 297), expressly holding that a member of Parliament was a public officer (at pp 75-76 and 79).

51. [106]

    The passages in the Salmon Report and in Stephen’s Digest on which Mr Obeid relied, unsupported as they were by any reasoning or authority, have been strongly criticised by G Zellick in “Bribery of Members of Parliament and the Criminal Law” [1979] Public Law 31. He criticised the latter as devoid of supporting authority and reasoning and added that “[i]n no sense may it be regarded as authoritative or as justifying the view of the Royal Commission”: at 40.

52. [107]

    Of course, the Salmon Report is the report of a United Kingdom Royal Commission, which may not have been referred to the Australian decisions of R v Boston and R v White. But even in the United Kingdom, things have moved on. The views expressed in it no longer represent the law, if indeed they ever did.

53. [108]

    In R v Greenway, a 1992 decision of Buckley J sitting in the Central Criminal Court reported in full in [1998] Public Law 357, similar issues were raised. Mr Greenway was a member of the House of Commons who was alleged to have accepted bribes for inter alia using his influence in relation to an application for British nationality and a company’s dealings with the British Railways Board. Mr Greenway moved to quash the indictment on the basis that bribery of a Member of Parliament was not a crime and the court had no jurisdiction, that being a matter for Parliament alone. It will be seen that, save insofar as Mr Greenway was charged with bribery, rather than misconduct in public office, the submissions were identical to those made by Mr Obeid.

54. [109]

    Buckley J recorded another submission recalling that made by Mr Obeid at 357:

55. [110]

    Buckley J referred in some detail to R v White, including stating at 360:

56. [111]

    Buckley J then turned to R v Boston at 360-361. When dealing with submissions based on Article 9, his Lordship said at 361-362:

57. [112]

    His Lordship then said at 363:

58. [113]

    He rejected the submissions based on lack of precedent, although acknowledging that he was troubled by it. However, he added that “my task is to apply the law as I believe it to be and not to assume their discretion or try to make their decisions”.

59. [114]

    Following the decision of R v Greenway, there was a further inquiry into whether members of Parliament were subject to these offences. See D Oliver and G Drewry (eds), The Law and Parliament (1998, Butterworth), where it is stated at p 75:

60. [115]

    More recently, in Rao v State of India [1999] 3 LRC 297, the question was whether a member of Parliament was a “public servant” for the purposes of the Prevention of Corruption Act 1988. The definition of “public servant” extended to “any person who holds an office by virtue of which he is authorised or required to perform any public duty”. Agrawal J, with whom Anand J concurred and Ray J agreed on this issue, addressed R v White and R v Boston in the course of addressing an argument similar to that made by Mr Obeid, that a member of Parliament holds a seat but does not hold an office. Their conclusion at [67] was:

61. [116]

    Extracted above is the reaction by Buckley J to the submission that a member of Parliament had not previously been prosecuted for bribery, and his Lordship’s rejection of it. The same submission was made more than a century earlier in 1875 in R v White, and was rejected by Martin CJ at 331:

62. [117]

    The same submission appears also to have been made in R v Boston, as may be seen from the short judgment of Ferguson J, as well as from the statement by Higgins J at 407 that “[c]omment has been made on the peculiar fact that there are so very few cases bearing directly on the bribery of members of Parliament.”

63. [118]

    Mr Obeid submitted that this Court should acknowledge what was described as the “deference” or “acquiescence” of the Executive in not bringing charges against a member of Parliament. That submission should be firmly rejected, just as it was in R v White, R v Boston and R v Greenway. What the Executive considers to be the content of a statutory offence is of little bearing upon its legal meaning; the High Court has confirmed that the so-called Chevron doctrine applicable in the United States to the legal meaning of statutes forms no part of Australian law: Corporation of the City of Enfield v Development Assessment Corporation [2000] HCA 5; 199 CLR 135 at [44]; see also Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16; 158 FCR 325 at [4] per Allsop J; cf S Gageler, “The Master of Words: Who Chooses Statutory Meaning?” in A Connolly and D Stewart, Public Law in the Age of Statutes (2015, Federation Press), 12 at 21-25. The position in the case of an offence at common law is a fortiori. Heydon J wrote that “[t]he courts are masters of the common law, but servants of statutes”: PGA v The Queen [2012] HCA 21; 245 CLR 355 at [132], emphasising the greater susceptibility to change on the part of the common law. The choices made by the Executive (including within that term the independent decisions of the Director of Public Prosecutions) do not bear upon the content of the offence at common law.

64. [119]

    The primary judge gave weight to what had been said, in a somewhat different context, in Sneddon v State of New South Wales [2012] NSWCA 351. The main issue was whether the State was vicariously liable to Ms Sneddon for the tortious conduct of a member of the Legislative Assembly, who employed her in his office. That issue turned on whether the member was acting “in the service of the Crown” for the purpose of the Law Reform (Vicarious Liability) Act 1983 (NSW), but the reasons of each of the three members of the Court ranged widely. In particular, the judgment of Meagher JA contained passages supportive of the conclusion stated by Isaacs and Rich JJ in R v Boston that a member was a public officer. Meagher JA said at [224]:

65. [120]

    Further, in relation to the authority of what was said by Isaacs and Rich JJ in R v Boston, Heydon J in Williams v The Commonwealth [2012] HCA 23; 248 CLR 156 at [444] said that “[a]n ‘office’ is a position under constituted authority to which duties are attached”. His Honour cited the passage from Isaacs and Rich JJ with approval.

66. [121]

    It is idle to pretend that all of the decisions and academic writings point in the same direction; they do not. However, contrary to the submissions of Mr Obeid, the considerable weight of judicial authority (R v White, R v Boston and R v Greenway, to which may be added what was said by Heydon J in Williams and Meagher JA in Sneddon) is against his submission. So too is the weight of modern academic authority (including Corruption and Misuses of Public Office).

67. [122]

    Mr Obeid’s submission to the contrary requires a very narrow focussing on the words “public officer”, which is contrary to both the language of Lord Mansfield in R v Bembridge and an approach that identifies the content of a common law offence with principle as opposed to the language in which it is expressed. What is more, Mr Obeid’s submission gives rise to fine distinctions, and difficulties in terms of the coherent operation of the criminal law. Why should it be an offence for a member of Parliament to accept a bribe but not otherwise to misuse his or her position?

68. [123]

    Zellick observed at 38:

69. [124]

    That conclusion wholly aligns with long-standing authority, read in the way indicated above, including R v White in 1875 and R v Boston in 1923, decided at times when the roles of members of the New South Wales Parliament were less readily perceived to be public officers than in the twenty-first century (especially in respect of their remuneration by way of salary and pension, their being elected by the people, and their service on house committees). The level of trust which was essential for Lord Mansfield and those who followed him is all the greater in the modern Parliament. It accords with the oaths or affirmations all members of the Legislative Council are required to take by s 12 of the Constitution Act 1902 (NSW).

70. [125]

    For those reasons, the primary judge was correct to conclude that a member of the Legislative Council was a public officer to whom the common law offence extended.

71. [126]

    It is therefore not necessary to address Mr Obeid’s further submission that there was error to the extent that the primary judge suggested that a member of a parliamentary chamber should have the status of a public officer. It was said that the courts “do not have power to expand the elements of common law offences so as to include conduct which has previously fallen outside the scope of that offence”. He relied on the judgment of McHugh J in R v Rogerson (1992) 174 CLR 268 at 304. He equated the position to the case where a court would construe a criminal statute narrowly. For completeness, it may be noted that McHugh J was in dissent in the result in Rogerson, and, more importantly, that common law offences are susceptible of incremental change, as noted in R v Clark (Mark) [2003] EWCA Crim 991; [2003] 2 Cr App R 23 at [13], endorsed in R v Rimmington [2005] UKHL 63; [2006] 1 AC 459 at [33], although if the scope of a common law offence is to be enlarged, it should be done “step by step on a case by case basis and not with one large leap”.

C. Does Article 9 require the indictment to be stayed?

1. [127]

   Senior Counsel for Mr Obeid mentioned, at the beginning of his address, that one “effect of the operation of parliamentary privilege might very well be to mean that his hands are tied completely or largely behind his back and that he cannot properly defend himself”. He added that:

2. [128]

   That may or may not be an accurate statement of what occurred. Nothing in these reasons should be read as endorsing any practice of splitting up applications for a stay, close to the time of trial, if that has occurred (as to which no view is expressed). It is mentioned merely to emphasise the narrowness of the point sought to be agitated in this appeal, which is narrower than the more familiar notion of a stay by reason of parliamentary privilege, as in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 338 and Rann v Olsen [2000] SASC 83; 76 SASR 450 at [38]ff.

3. [129]

   This submission overlaps with the threshold question of jurisdiction. As noted above, Mr Obeid relied upon a formulation of parliamentary privilege extending to what was incidental to speech or proceedings in Parliament. He then submitted that the Crown’s case was that the communication by Mr Obeid to a senior member of the Executive was “necessarily incidental to” the powers, duties and responsibilities exercisable by that member in Parliament. Mr Obeid then submitted:

4. [130]

   Mr Obeid also submitted that even if the communications were not proceedings in Parliament, their examination would involve the questioning of Mr Obeid’s conduct in the performance of his parliamentary duty, and would therefore be prohibited by Article 9.

5. [131]

   The primary judge rejected these submissions. His Honour said at [132]-[133]:

6. [132]

   Mr Obeid’s submissions on appeal very substantially repeated those made at first instance (paragraphs 115, 116 and 117 of the submissions on appeal closely correspond to the submissions in paragraphs 5(d), (e) and 7 of the submissions dated 4 September 2015). They should be rejected for the reasons given by the primary judge.

D. The elements of the offence of misconduct in public office

1. [133]

   Misconduct in public office is a common law indictable misdemeanour with a long history predating the tort described or created by Holt CJ in Ashby v White (1703) 2 Ld Raym 938; 92 ER 126: see M Aronson, “Misfeasance in Public Office: A Very Peculiar Tort” (2011) 35 Melbourne University Law Review 1 at 15; and C Nicholls QC et al, Corruption and Misuse of Public Office (2nd ed, 2011, Oxford University Press), ch 3. For present purposes, however, it suffices to proceed immediately to the conclusions reached by the Victorian Court of Appeal in R v Quach [2010] VSCA 106; 201 A Crim R 522 at [46], where the elements of the offence were formulated as follows:

2. [134]

   It will be seen that the words “or connected to” in the indictment adhere to the second element of the formulation in R v Quach. The primary judge applied R v Quach, as a decision of an intermediate court of appeal on a question of common law: at [86]-[98]. He rejected various submissions advanced by Mr Obeid which do not appear to have been repeated on appeal. Conversely, the submissions advanced on appeal do not appear to have been made to the primary judge.

3. [135]

   Mr Obeid submitted that, having regard to other paragraphs in the judgment in R v Quach (he identified [38], [40], [41], [45] and [47]), the formulation in [46] could not be accepted at face value. It was said to be “inconsistent with a whole lot of other paragraphs in the judgment which indicate that it isn’t any connection that is sufficient, only some forms of connection”.

4. [136]

   Mr Obeid’s submission should be rejected. The judgment represents a consideration of various formulations of the offence, and [46] is the Court’s distillation of it. Indeed, it is difficult to see how the judgment could have been clearer: [46] commences “So amended, the elements of the offence are ...” and [48], answering the questions referred to the Court, is as follows:

5. [137]

   Mr Obeid also submitted that the precedential weight of R v Quach was reduced because, subsequently, the High Court has criticised the procedure relied upon, namely, referral of a question of law pursuant to s 302 of the Criminal Procedure Act 2009 (Vic). The criticism of answering questions of law divorced from the facts of the case was made in Director of Public Prosecutions (Cth) v JM [2013] HCA 30; 250 CLR 135 especially at [41], where the High Court confirmed that the section did not empower the referral of questions which would not arise in the particular proceedings in the trial of JM. But Mr Obeid did not submit that s 302 was inapplicable in R v Quach, where the questions were referred in the light of the factual circumstances reproduced in some detail in [3] of the reasons (essentially, alleged sexual activity by an off-duty police officer with a woman who had been seen in the course of the officer’s duties earlier that day). The fact that s 302 was improperly used in some other case in no way bears upon the precedential authority of R v Quach.

6. [138]

   Mr Obeid then submitted that R v Quach was plainly wrong in relation to this element of the offence. Mr Obeid acknowledged that the precedential question was that stated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]. Three points were relied on in order to surmount this hurdle. The first was that more recent Hong Kong authority, HKSAR v Wong Lin Kay [2011] HKCFA 28; 15 HKCFAR 185, had held that in order for the conduct to be “in relation to” a public office, it must be conduct “in relation to powers and duties exercisable by him for the public benefit” (at [17]). The second was that United Kingdom authorities required as an essential element that the misconduct be of a public officer acting as such: see eg Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73 at [6], [54] and [61] and R v Chapman [2015] EWCA Crim 539; 2 Cr App R 10 at [17]. The third was that “to frame the elements of the offence by reference to the need for a ‘sufficient connection’ with the office, without proving guidance on the nature of the connection required, is to leave the boundaries of the offence entirely at large”.

7. [139]

   All these submissions should be rejected. The Victorian Court of Appeal conducted a review of Australian, Canadian, English and Hong Kong decisions on precisely this question, and rejected an arguably narrower formulation proposed by the accused, namely, that the misconduct be by the public officer acting as such. (For completeness, it may be that there is no difference between a formulation using the words “acting as such” and one using the words “in relation to”: they are regarded as identical in Nicholls’ work at p 87; it is not necessary to resolve this question.) Further, R v Quach predates the reformulation in Wong Lin Kay. Thus the first and second of Mr Obeid’s submissions merely pointed to variations in overseas common law jurisdictions, one of which had been rejected by the Victorian Court of Appeal, the other of which (Chapman) post-dated it. Indeed, the Court in Chapman, although taken to earlier Hong Kong decisions, does not appear to have been taken to the reformulation in Wong Lin Kay. Nor does reference appear to have been made to the Australian decisions.

8. [140]

   More is required. Merely pointing to different overseas appellate decisions falls short of a submission of sufficient cogency to convince this Court that the considered decision of the Victorian Court of Appeal was plainly wrong.

9. [141]

   Turning to Mr Obeid’s third submission, what delineates this offence is not the presence or absence of connection between the conduct and the office, but rather the qualitative assessment required by the fifth element, which reflects what has been said in R v Dytham [1979] 1 QB 722 at 727-728, Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63 at 78-79, by Mason NPJ in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at 409-410 and by the Court of Appeal in Attorney General’s Reference (No 3 of 2003) at [56]. These authorities were considered in R v Quach at [42]-[45]. Far from leaving the boundaries of the offence “entirely at large”, it is a necessary condition that the misconduct have the requisite serious quality, meriting criminal punishment, in light of the nature and importance of the office and the public objects served. It is this requirement, ultimately, which confines the scope of the offence. In an appeal in which many points were taken, there was no objection taken to the fact that the qualitative assessment required by the fifth element rendered the offence uncertain.

10. [142]

    This ground is not made out.

E. Duty

1. [143]

   No duty owed by Mr Obeid is mentioned in the indictment, nor in the statement of the Crown case. However, in answer to a request for particulars from Mr Obeid, the Crown stated that it asserted a breach of duty by Mr Obeid as amounting to his wilful misconduct. The particulars supplied by the Crown were the subject of submissions before the primary judge.

2. [144]

   The primary judge analysed the authorities concerning the duties of members of Parliament, including three decisions of the High Court: Wilkinson v Osborne (1915) 21 CLR 89; Horne v Barber (1920) 27 CLR 494 and R v Boston. His Honour did so, extensively, from [63]-[72]. His Honour’s analysis continued at [78]-[85], responding to particular submissions advanced by Mr Obeid.

3. [145]

   His Honour drew together the authorities and concluded at [75]-[76] as follows:

4. [146]

   Mr Obeid was critical of the duty formulated by the primary judge. He maintained that members of Parliaments were not fiduciaries. He submitted that the duty as formulated was wrong, because there was no duty owed to “the public”, because the content of the duty was not revealed, and because there was further error in the application of the notion of informed consent in the circumstances. He also submitted that the parties were bound by what had been said, citing Rogers v The Queen (1994) 181 CLR 251 and Bass v Permanent Trustee Company Ltd [1999] HCA 9; 198 CLR 334 at [57]. The essence of the submission was captured as follows:

5. [147]

   There is nothing in this ground.

6. [148]

   First, the primary judge did not find that members of Parliament were fiduciaries. Indeed, his Honour went out of his way to state that the duty encapsulated by him was merely analogous to that of a fiduciary (“Just as with the duties of a fiduciary”). The duty enunciated by the primary judge substantially conformed with what had been said by Meagher JA in Sneddon at [218]. The duty formulated at [75] drew upon, and on one view conflated, the two overlapping themes to which Deane J referred in Chan v Zacharia (1984) 154 CLR 178 at 198-199. Obviously there are similarities (hence, for example, the pecuniary interests register referred to above, and Lord Mansfield’s reference to “office of trust” in R v Bembridge), and it is to be recalled that the term “trust” is not a term of art in public law: see Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; 195 CLR 566 at [47]. But there was not on any fair reading of the reasons a finding that a member of Parliament was a fiduciary in the strict private law sense on which Mr Obeid’s submissions rested.

7. [149]

   Secondly, his Honour said that “subject to hearing from the parties in this case”, the jury would be instructed in the terms stated. The primary judge was, expressly, indicating merely a preliminary view as to the content of the duty. Nothing was determined by the primary judge, so as to engage the proposition mentioned by the High Court in Bass at [57] that “[o]nce an issue is determined at the interlocutory stage, and the trial continues, the primary judge’s hand is tied ...” The precise formulation of the directions to the jury would, inevitably, turn upon the course of the trial, and the way the evidence unfolded. It is, with respect, impossible to read the reasons of the primary judge as somehow binding the parties, or for that matter the Court, in relation to the directions to be given to the jury.

8. [150]

   This ground should be dismissed.

9. [151]

   The following may be added. It will be an issue for the jury whether there was wilful misconduct. Accepting that the Crown case to date has proceeded on the basis that the misconduct involved a breach of duty, the precise articulation of that duty, to the extent it goes beyond the case as particularised, can, and should, await the course of the trial.

Orders

1. [152]

   A non-publication order made by a single judge constituting the Court of Criminal Appeal applied to the hearing. However, during the course of the hearing, it was indicated that it should be reviewed whether this Court’s judgment, and that of the primary judge, should be the subject of such an order. Because the considerations which arise relate to the conduct of the trial, that review is best left to the trial judge.

2. [153]

   The formal orders will be:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal dismissed.

   3. (3)

      Subject to order (4) below, order that, pursuant to s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW), it being necessary to prevent prejudice to the proper administration of justice, this judgment not be published pending the determination of the trial.

   4. (4)

      Remit for the consideration by the trial judge whether an order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) should be made in relation to this judgment and the judgments at first instance R v Obeid (No 2) [2015] NSWSC 1380 and R v Obeid (No 3) [2015] NSWSC 1441.