R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858 (19 July 2021)

The accused were charged of conspiracy to commit the common law offence of wilful misconduct in public office.  In disputing their charge, they alleged that their indictment did not disclose and offence known to law.  A joint trial of the three co-accused was commenced, discussing the elements of conspiracy and the overt acts of the accused. 

Facts:

Ian Michael Macdonald (Macdonald) in the course of or connected to his public office as Minister for Mineral Resources was doing acts in connection with the granting of an exploration licence at Mount Penny without impartiality and in breach of Macdonald's duties of proper confidentiality.   The Crown notified its intention to seek a grant of leave to amend the indictment dated 13 July 2017 and to have the accused re-arraigned on a reformulated charge of conspiracy to commit the common law offence of wilful misconduct in public office.   

The application for leave to amend the indictment was opposed by each of the accused alleging it was defective for latent duplicity and/or a lack of particularity in the identification of what the Crown alleged to be the acts of wilful misconduct. 

On 3 - 9 April and 6 May - 6 June 2019, a draft indictment dated 8 April 2019 was served on the parties.   It contained a minor amendment to the indictment dated 13 July 2017 upon which the accused were originally arraigned on 6 October 2017.   The accused were not re-arraigned on the amended indictment.   The accused did not oppose leave being granted to file the further amended indictment.   On 12 February 2020, the Crown formally presented an indictment.   On their arraignment each of the accused entered a plea of not guilty. 

Issue:

Whether or not the indictment disclosed an offence known to law. 

Applicable law:

Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 - provides that the offence of misconduct in public office and a conspiracy to commit that offence are common law offences. 

Evidence Act 1995 (NSW) s 87(1)(c) - provides for the co-conspirators rule and evidence which may be used to prove the participation of each of the accused in the conspiracy beyond reasonable doubt.

Analysis:

In any trial where a conspiracy is alleged, a clear distinction must be made and maintained between the existence of the conspiracy that is alleged and the participation of each of the alleged conspirators in it.  Proof of both facts, to the criminal standard, is essential to proof of guilt. 

The Crown stated that Edward Obeid and Moses Obeid had the hope or expectation, however fervently held, that Mr Macdonald would misconduct himself as the Minister for Mineral Resources in connection with the granting of an exploration licence (EL) at Mount Penny in a way that would be to their ultimate benefit.   

Each of the accused knew that Mr Macdonald was subject to a duty of confidentiality and a duty of impartiality in the discharge of the public office he held as the Minister for Mineral Resources, and that they each knew that what he agreed that he would do in that public office would constitute a breach of either or both of those duties and obligations.

Conclusion:

The Court held that each of the accused are guilty on the charges of conspiracy to commit misconduct in public office 2020.  An entry of conviction against each of them is directed.