R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 9) [2019] NSWSC 1785

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 9) [2019] NSWSC 1785

Although the charged conspiracy involved an element requiring objective assessment according to community standards, and that consideration carried very considerable weight in favour of jury trial, the nature and extent of sustained and continuing adverse pre-trial publicity about Edward Obeid and Ian Macdonald created a very real risk that a prospective juror would be infected by the publicity or that further publicity would cause the trial to be aborted. Having considered the evidence and submissions, the interests of justice required the joint trial to proceed before a judge without a jury.

Jurisdiction
Australia
Judgment Date
13 December 2019
Procedural Posture
Criminal Proceedings; Application for Trial by Judge Alone / Pre Trial Application by Notices of Motion Filed on 22 November 2019
Outcome
Applications granted; the joint trial is to be convened before a judge without a jury.
Legal Topics
['trial by Judge Alone' 'pre Trial Publicity' 'fair Trial' 'jury Trial' 'conspiracy to Commit Wilful Misconduct in Public Office' 'objective Community Standards']
['criminal Law' 'criminal Procedure'] ['trial by Judge Alone' 'pre Trial Publicity' 'fair Trial' 'jury Trial' 'conspiracy to Commit Wilful Misconduct in Public Office' 'objective Community Standards']

Case Brief

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Procedural Posture

Criminal Proceedings; Application for Trial by Judge Alone / Pre Trial Application by Notices of Motion Filed on 22 November 2019

Legal Issues

  1. 1 ['Whether the joint trial of the accused should be convened before a judge without a jury pursuant to s 132A of the Criminal Procedure Act 1986 (NSW).' 'Whether, in the absence of Crown consent, the Court was satisfied under s 132(4) of the Criminal Procedure Act 1986 (NSW) that it was in the interests of justice to order a judge alone trial.' 'Whether the presence of a factual issue requiring application of objective community standards under s 132(5) of the Criminal Procedure Act 1986 (NSW) weighed against a judge alone trial.' 'Whether adverse pre-trial publicity concerning the accused created a real risk to a fair jury trial or of the trial being aborted after commencement.' 'Whether complexity, trial length and jury management considerations supported a judge alone trial.']

Ratio Decidendi

Although the charged conspiracy involved an element requiring objective assessment according to community standards, and that consideration carried very considerable weight in favour of jury trial, the nature and extent of sustained and continuing adverse pre-trial publicity about Edward Obeid and Ian Macdonald created a very real risk that a prospective juror would be infected by the publicity or that further publicity would cause the trial to be aborted. Having considered the evidence and submissions, the interests of justice required the joint trial to proceed before a judge without a jury.

Court Disposition

Applications granted; the joint trial is to be convened before a judge without a jury.

Orders

  • ['Pursuant to to s 132A of the Criminal Procedure Act 1986 (NSW), the joint trial of the accused Ian Michael Macdonald, Edward Moses Obeid and Moses Edward Obeid us to be convened before a judge without a jury.']