R v Obeid (No 2)

[2015] NSWSC 1380

Supreme Court of NSW

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Catchwords

1. CRIME — common law offence of wilful misconduct in public office — accused former Member of Legislative Council of New South Wales (“MLC”) — accused alleged to have intervened in negotiations between government department and commercial leaseholders — accused alleged to have undisclosed interest in the leases — accused raises demurrer and applies to quash or stay indictment — public officer — whether MLC is a public officer for purposes of the offence — functions and duties of MLC — whether functions of MLC extend to making representations to employees of the executive — duties owed by MLC — whether MLC has any duty not to use their position to advance their own commercial interests — analogy with fiduciaries — avoidance of conflict between private interests and public duty as MLC — elements of the offence — whether sufficient if alleged offence committed in the course of or connected to the public office — whether R v Quach [2010] VSCA 106; 201 A Crim R 522 clearly wrong and should not be followed — whether evidence available to Crown capable of establishing that the accused “covertly lobbied” an employee of the Executive conducting lease negotiations — whether that of any significance to the validity of the charge — whether evidence capable of establishing that alleged breach of duty was wilful — whether evidence capable of establishing that the alleged breach was sufficiently serious to merit criminal punishment — jurisdiction of Court — whether prosecution inconsistent with parliamentary privilege — s 9 of the Bill of Rights — whether subject matter of prosecution within exclusive cognisance of the Legislative Council — demurrer overruled and notice of motion to quash indictment or stay proceedings dismissed.