Obeid v R [2017] NSWCCA 221

Obeid v R [2017] NSWCCA 221

The Court unanimously held that the common law offence of misconduct in public office applies to Members of Parliament; the duty owed by such members to act solely in the public interest and not for private gain is supported by law; issues raised at trial and on appeal did not fall within the exclusive cognisance of Parliament or privilege; the directions on duty, seriousness, and wilfulness were proper; the jury's finding was open on the evidence; and no miscarriage of justice occurred regarding evidence or counsel's conduct. The sentencing judge did not err in using s 249B as an analogue, findings on motivation and seriousness were proper, and the sentence was not manifestly excessive.

Jurisdiction
Australia
Judgment Date
13 September 2017
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Judgment on Conviction and Sentence
Outcome
Conviction appeal dismissed; sentence appeal dismissed. Leave to appeal granted on identified grounds.
Legal Topics
['misconduct in Public Office' 'parliamentary Privilege' 'sentencing' 'appellate Review']
['criminal Law' 'constitutional Law'] ['misconduct in Public Office' 'parliamentary Privilege' 'sentencing' 'appellate Review']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal Judgment on Conviction and Sentence

Legal Issues

  1. 1 ['Whether the duty breached by the applicant was bad in law' 'Whether the issues at trial were within the exclusive cognisance of the NSW Parliament' 'Whether the offence of official misconduct covers members of Parliament acting in their capacity' 'Whether the trial judge misdirected the jury on seriousness and wilfulness' 'Whether the verdict in relation to wilfulness was unreasonable or unsupported by evidence' 'Whether miscarriage of justice occurred due to failure to adduce certain evidence or tender documents' 'Whether the correct statutory analogue was identified for sentencing purposes' 'Whether trial judge erred on motivation, seriousness, or procedural fairness under sentencing law' 'Whether sentence imposed was manifestly excessive']

Ratio Decidendi

The Court unanimously held that the common law offence of misconduct in public office applies to Members of Parliament; the duty owed by such members to act solely in the public interest and not for private gain is supported by law; issues raised at trial and on appeal did not fall within the exclusive cognisance of Parliament or privilege; the directions on duty, seriousness, and wilfulness were proper; the jury's finding was open on the evidence; and no miscarriage of justice occurred regarding evidence or counsel's conduct. The sentencing judge did not err in using s 249B as an analogue, findings on motivation and seriousness were proper, and the sentence was not manifestly excessive.

Court Disposition

Conviction appeal dismissed; sentence appeal dismissed. Leave to appeal granted on identified grounds.

Orders

  • ['Grant applicant leave to appeal on Grounds 5 and 7 of the amended grounds of appeal filed on 8 March 2017.' 'Pursuant to r 4 of the Criminal Appeal Rules, grant applicant leave to raise Grounds 1, 2, 3, 4 and 6 of the amended grounds of appeal filed on 8 March 2017.' 'Appeal against conviction dismissed.' 'Grant...