R v Obeid (No 2) [2015] NSWSC 1380

R v Obeid (No 2) [2015] NSWSC 1380

As a matter of law, an MLC is a public officer for the purposes of the offence of wilful misconduct in public office. The scope of an MLC's functions includes scrutinising, advising, and communicating with the executive government. MLCs owe a negative duty not to use their office to advance their own pecuniary interests where there is or may be a conflict with their public duty. The facts alleged are capable of amounting to a breach of this duty, are sufficiently connected to the office, and sufficiently serious for the charge to be sustained. Parliamentary privilege and exclusive cognisance do not preclude prosecution in these circumstances, and the Court has jurisdiction.

Jurisdiction
Australia
Judgment Date
22 September 2015
Procedural Posture
Criminal / Ruling on Demurrer and Notice of Motion to Quash or Stay Indictment
Outcome
Demurrer overruled; notice of motion to quash or stay indictment dismissed; accused to answer the charge.
Legal Topics
['wilful Misconduct in Public Office' 'members of Parliament—duties and Powers' 'parliamentary Privilege—bill of Rights S 9' 'exclusive Cognisance of Parliament' 'public Officers—definition' 'conflict of Interest—fiduciary Duties of Parliamentarians']
['criminal Law' 'constitutional Law' 'parliamentary Privilege'] ['wilful Misconduct in Public Office' 'members of Parliament—duties and Powers' 'parliamentary Privilege—bill of Rights S 9' 'exclusive Cognisance of Parliament' 'public Officers—definition' 'conflict of Interest—fiduciary Duties of Parliamentarians']

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Procedural Posture

Criminal / Ruling on Demurrer and Notice of Motion to Quash or Stay Indictment

Legal Issues

  1. 1 ["Whether a Member of the Legislative Council (MLC) is a 'public officer' for the purpose of the offence of wilful misconduct in public office" 'Whether the alleged conduct by Mr Obeid was in the course of and connected to his public office' 'Whether the facts alleged are capable of establishing a breach of duty by Mr Obeid as an MLC' 'Whether the offence as alleged is sufficiently serious to merit criminal punishment' 'Whether the prosecution is precluded by parliamentary privilege or exclusive cognisance of Parliament under s 9 of the Bill of Rights' 'Whether this Court has jurisdiction to try the charge']

Ratio Decidendi

As a matter of law, an MLC is a public officer for the purposes of the offence of wilful misconduct in public office. The scope of an MLC's functions includes scrutinising, advising, and communicating with the executive government. MLCs owe a negative duty not to use their office to advance their own pecuniary interests where there is or may be a conflict with their public duty. The facts alleged are capable of amounting to a breach of this duty, are sufficiently connected to the office, and sufficiently serious for the charge to be sustained. Parliamentary privilege and exclusive cognisance do not preclude prosecution in these circumstances, and the Court has jurisdiction.

Court Disposition

Demurrer overruled; notice of motion to quash or stay indictment dismissed; accused to answer the charge.

Orders

  • ["The Accused's demurrer be overruled." 'The Accused answer over to the charge against him.' "The Accused's notice of motion filed 9 September 2015 be otherwise dismissed."]