Obeid v R [2017] NSWCCA 221: Misconduct in Public Office

On 13 September 2017, the NSW Court of Criminal Appeal (NSWCCA) dismissed an appeal brought by former Labour leader, Eddie Obeid. The matter concerned the applicant’s sentence of five years, handed down in December 2016 (R v Obeid (No 12) [2016] NSWSC 1815) for the offence of misconduct in public office.

Background

The issue concerned acts of corruption in relation to cafe leases, which were managed by a family business. The applicant was a former member of the Legislative Council of NSW and he was convicted of the offence of misconduct in public office. The offence consisted of making representations in the course of lobbying a public servant with the intention of securing benefits for himself and his family, primarily involving the company Circular Quay Restaurants ('CQR'). The sole director and shareholder of CQR was the applicant’s brother-in-law, Mr John Abood. In late 2002 CQR purchased two businesses operating at the Circular Quay Wharves. It was an agreed fact that 90 percent of the interest in this business flowed to the Obeid Family Trust No 2. However the business was having issues with the Maritime Authority regarding the cafe leases.

On 17 August 2007, the applicant spoke to Stephen Dunn, who had taken up appointment as Deputy Chief Executive Officer of the Maritime Authority and was then appointed General Manager of the Maritime Property Division. The applicant told Mr Dunn that he was unhappy about the way the group of tenants at Circular Quay had been treated by the Authority and asked Mr Dunn to speak to the relevant authorities on the matter. He did not reveal that he had a financial interest in the businesses at Circular Quay. Mr Dunn stated he thought the applicant was stating his grievances on behalf of the constituents. This misrepresentation formed the basis of the charge.

Issues at Appeal

The issues at hand in this appeal were divided into appeal of the conviction, and appeal of the sentence.

The issues arising from the appeal against the conviction were:

• Whether the duty said to be breached by the applicant was actually bad law;
• Whether the charge was within the exclusive cognisance of the Parliament;
• Whether there was misdirection by the trial judge on the element of ‘wilfulness’;
• Whether there was a misdirection on the element of seriousness;
• Whether there occurred a miscarriage of justice arising from the conduct of the applicant’s legal representatives.

The issues arising from the appeal against the sentence are:

• Whether the offences found in the Crimes Act 1990 (NSW), Part 4A were the relevant provisions parallel to the common law offence;
• Whether the judge at trial made an error in finding that the applicant was solely motivated to benefit himself or his family’s pecuniary interests;
• Whether the judge at trial erred in taking into account that the jury was satisfied beyond reasonable doubt that the conduct merited criminal punishment;
• Whether the applicant was denied procedural fairness by the judge at trial because it was found that the mitigating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW) has not been made out;
• Whether damage caused to government institutions can constitute loss or damage’ for the purposes of section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW);
• Whether the sentence was manifestly excessive.

NSWCCA Decision

The court of criminal appeal unanimously granted the applicant leave to appeal, but then dismissed the appeal on all grounds.

Responses to the Decision

ABC News reported that Minister for Corrections David Elliot stated that if the applicant did not appeal to the High Court, the Government will start proceedings to strip him of his parliamentary pension estimated to be about $100,000 per year, and more than $280,000 in legal aid he was entitled to as a former minister:

According to the Sydney Morning Herald, the applicant’s son, Moses Obeid was asked outside of the courtroom whether his father would seek leave to appeal in the High Court, and he replied “We’ll see what happens.”

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Obeid v R [2017] NSWCCA 221, and judgement summary.

Jamelle Wells, 'Eddie Obeid loses appeal against misconduct in public office conviction,' (ABC News Online) 13 September 2017.

Michaela Whitbourn, 'Eddie Obeid loses appeal over misconduct conviction,' (Sydney Morning Herald) 13 September 2017.