Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Macdonald, Ian v R; Edward Obeid v R; Moses Obeid v R [2023] NSWCCA 250 Hearing dates: 17 – 20 April 2023 Date of orders: 6 October 2023 Decision date: 06 October 2023 Before: Bell CJ; Basten AJA; Button J Decision: In each matter: (1) To the extent necessary, grant leave pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 to appeal against conviction. (2) Dismiss the appeal. Catchwords: CRIME – conspiracy – conspiracy to commit common law offence of wilful misconduct in public office – elements of conspiracy – element of misconduct created by conflict between self-interest and public duty – need to establish causal element – whether agreement to do undertake a particular act(s) required – whether each participant in the conspiracy must agree to carry out act(s) in furtherance of unlawful purpose – whether motive of parties to be established – need to prove parties agreed as to quality of misconduct – conduct to be serious and meriting criminal punishment CRIMINAL PROCEDURE – elements of a conspiracy – each element and fact that are necessary links in the chain to conviction to be established beyond reasonable doubt – whether Shepherd direction required CRIMINAL PROCEDURE – judge alone trial – nature of warnings – warning to be "taken into account" – whether to be recorded in reasons – application of Criminal Procedure Act 1986 (NSW), s 133(3) CRIMINAL PROCEDURE – conviction – appeal – verdict unreasonable or not supported by the evidence – appeal court to conduct independent assessment of evidence – consideration of all circumstantial evidence – relevance of reasons of trial judge – Criminal Appeal Act 1912 (NSW), s 6(1), first limb – challenge to individual findings – whether finding indispensable to conviction – standard of review EVIDENCE – admissions – hearsay rule – conduct of one conspirator admissible as admission by other conspirator – operation of Evidence Act 1995 (NSW), ss 57(2), 87(1)(c) EVIDENCE – admissions – lies – consciousness of guilt – need for direction in accordance with Edwards v The Queen EVIDENCE – unreliability – description of map – whether tantamount to identification evidence – whether warning required under Evidence Act 1995 (NSW), s 165(2) Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 6, 8 Criminal Procedure Act 1986 (NSW), ss 132, 133 (former ss 32, 33) Evidence Act 1995 (NSW), ss 38, 55-57, 81, 87, 165 Mining Act 1992 (NSW), ss 13, 14, 22, 368 Mining Regulation 2016 (NSW), Pt 3, Div 1 Cases Cited: Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321; [2007] FCA 794 Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7 Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 EE v R [2023] NSWCCA 188 Elomar v The Queen (2014) 300 FLR 323; [2014] NSWCCA 303 Fennell v The Queen (2019) 93 ALJR 1219; [2019] HCA 37 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8 Glasser v United States (1942) 315 US 60 Higgins v R [2020] NSWCCA 149 HKSAR v Hui Rafael Junior (2017) 20 HKCFAR 264 Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 IW v City of Perth (1997) 191 CLR 1 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kanaan v R [2006] NSWCCA 109 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 Mohana v R [2023] NSWCCA 61 Mulcahy v The Queen (1868) LR 3 HL 306 Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 Peacock v The King (1911) 13 CLR 619 Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 R v Agius [2011] NSWSC 367 R v Boulanger [2006] 2 SCR 49 R v Clout (1995) 41 NSWLR 312 R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 R v Gill and Henry (1818) 2 B & Ad 204, 205; 106 ER 341 R v Kurtic (1996) 85 A Crim R 57 R v Llewellyn-Jones (1966) 51 Cr App R 4 R v Macdonald, Edward Obeid, Moses Obeid (No 15) [2020] NSWSC 1949 R v O'Brien (1974) 59 Cr App R 222 R v O'Donoghue (1988) 34 A Crim R 397 R v Speechley [2005] 2 Cr App R (S) 75; [2004] EWCA Crim 3067 Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19 Romeyko v Samuels (1972) 2 SASR 529 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25 Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The King and the Attorney-General (Cth) v The Associated Northern Collieries (1911) 14 CLR 387 The King v Boston (1923) 33 CLR 386; [1923] HCA 59 The King v Kidman (1915) 20 CLR 425; [1915] HCA 58 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 The Queen v LK (2010) 241 CLR 177; [2010] HCA 17 The Queen v Quach (2010) 27 VR 310; [2010] VSCA 106 The Queen v Rogerson (1992) 174 CLR 268; [1992] HCA 25 Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 Trudgeon v R (1988) 39 A Crim R 252 Waterways Authority v Fitzgibbon(2005) 79 ALJR 1816; [2005] HCA 57 Western Australia v Marchesi (2005) 30 WAR 359; [2005] WASCA 133 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Texts Cited: Australian Law Reform Commission, Interim Report on Evidence, No 26 (AGPS, 1985) Vol 1; Vol 2, Draft Bill de Smith Woolf & Jowell, Judicial Review of Administrative Action, 5th ed (1995) Review of Commonwealth Criminal Law, Interim Report: Principles of Criminal Responsibility and Other Matters, (July 1990) Russell on Crimes 7th ed, Vol 1 Category: Principal judgment Parties: Ian Michael Macdonald (First Appellant) Edward Moses Obeid (Second Appellant) Moses Edward Obeid (Third Appellant) The Crown (Respondent) Representation: Counsel: C Parkin (First Appellant) A Francis (Second Appellant) B Walker SC / M Kalyk (Third Appellant) D Staehli SC / E Nicholson / N Wootton (Respondent) Solicitors: HWL Ebsworth (First Appellant) M Bowe (Second Appellant) Murphy's Lawyers (Third Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/212910; 2015/214251; 2015/212851 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Crime Citation: [2021] NSWSC 858 Date of Decision: 19 July 2021 Before: Fullerton J File Number(s): 2015/212910; 2015/214251; 2015/212851 HEADNOTE [This headnote is not to be read as part of the judgment] In 2020, the appellants, Ian Michael Macdonald, Edward Moses Obeid and Moses Edward Obeid were charged with conspiracy to commit misconduct in public office. The prosecution alleged that the appellants agreed, no later than 9 May 2008, that Mr Macdonald, in his capacity as Minister for Mineral Resources, would take steps in connection with the grant of an exploration licence with respect to a coal reserve believed to exist under a property owned by the Obeid family at Mount Penny in the Bylong Valley for the improper purpose of advantaging the Obeids, their family and associates. The agreement envisaged that Mr Macdonald would wilfully breach his Ministerial duties and obligations of confidentiality and impartiality. The trial before Fullerton J, sitting without a jury, commenced in February 2020, with final submissions in February 2021 and a verdict delivered on 19 July 2021. The prosecution case proceeded on the basis that Mr Macdonald committed eight acts of misconduct in carrying out the agreement. The appellants were convicted and each was sentenced to a term of imprisonment. There are three appeals, each appellant challenging his conviction. The grounds of appeal included five grounds (with several subgrounds) common to all three appellants and some additional individual grounds. The issues on appeal fell into three broad categories: (1) Challenges to the indictment, including the elements of the offence; (2) Assertions that the verdicts were unreasonable or could not be supported having regard to the evidence; and (3) Miscellaneous assertions of legal error and factual errors. The Court (Bell CJ, Basten AJA and Button J) held, dismissing the three appeals: As to ground 1(1) – no agreement to do a particular unlawful act (1) Absence of agreement as to specific acts to be undertaken was not fatal to the existence of a conspiracy; so long as an unlawful purpose was sufficiently identified, the precise means by which it was to be effected need not be known or agreed upon. The context, providing a process by which steps were to be taken to seek expressions of interest, assess applicants and grant exploration licences, identified with sufficient precision the nature of the conduct that was the subject of the agreement between the parties: [23], [39]. Gerakiteys v The Queen (1984) 153 CLR 317; Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7; R v Gill and Henry (1818) 2 B & Ad 204; 106 ER 341, applied As to ground 1(2) – requirement of act by Obeids (2) A conspiracy may involve the recipient of favours not being actively involved through his or her own unlawful conduct; there is no requirement that each party to the conspiracy agree to be responsible for some unlawful overt act in carrying out the agreement: [42], [43], [47]. R v LK (2010) 241 CLR 177; [2010] HCA 17, distinguished (3) Nor was it necessary to establish a motive for Mr Macdonald, namely that he would benefit from his participation: [53]. As to ground 1(3) – no misconduct 'but for' agreed improper purpose (4) There did not need to be an agreement that Mr Macdonald would not have taken the unlawful steps he took "but for" the agreement. The elements of the offence are not expressed in the language of causation. It was the creation of a conflict between self-interest and public duty that constituted the element of misconduct and in circumstances where that conflict is perceived, the relevance of a causative element was expressly denied in Boston: [61]-[62]. HKSAR v Hui Rafael Junior (2017) 20 HKCFAR 264, The Queen v Boston (1923) 33 CLR 386; [1923] HCA 59, applied; Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 distinguished As to ground 1(5) – no agreement that conduct serious and meriting criminal punishment (5) It was not necessary either that Mr Macdonald believe his conduct to involve a particular level of moral culpability, or that the conspirators agree that his conduct would involve that level of moral culpability: [81]. As to ground 3 – absence of Shepherd direction (6) Each element of an offence and every fact which is a link in a chain necessary to establish an element of an offence and is therefore an indispensable step to conviction must be established beyond reasonable doubt; a jury must be so directed. However, there is no further direction required in all cases: [102]. The common knowledge which formed a substratum to the agreement, and was known to the participants, was that the Obeid family had an interest in land at Mount Penny. No special direction that Moses Obeid knew that Macdonald knew that fact was required: [104]. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 applied As to ground 4 – failure by prosecution to call evidence (7) The judge did not err in declining to give herself a direction that she could infer from the failure of the prosecutor to call particular witnesses, without a sufficient explanation, that the evidence they might have given would not have assisted the prosecution case: [115]. If the prosecution leaves gaps in the evidence, that may result in an acquittal; except to the extent necessary to achieve a fair trial, the prosecutor is not otherwise obliged to call persons who may possibly be able to give relevant evidence: [121]-[123]. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3; Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 applied As to ground 6 – admissions by co-accused (8) The representation of a co-conspirator may be used to support a finding of the existence of the common purpose, and is admissible to that end if it were open to the fact-finder to be satisfied that there is a common purpose. It is not necessary to prove the existence of a conspiracy before giving in evidence of the acts of the alleged conspirators: [149], [152]. Evidence Act 1995 (NSW), ss57(2), 87(1)(c) applied R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 applied As to ground 7 – use of inadmissible evidence (9) Five matters were relied on as unavailable to support a conclusion of involvement of Mr Obeid Snr in the conspiracy: none involved evidence not available for that purpose. And none was conclusive: the degree of reliance placed on each by the trial judge was open to her. As to ground 8 – admissions and consciousness of guilt (10) Having addressed the principles discussed in Edwards v The Queen in R v Macdonald (No 15) in terms which were not the subject of criticism on the appeal, and having identified which particular representations were capable of demonstrating consciousness of guilt, no further direction was required: at [196]-[197]. Each of the relevant factors was in fact applied: [205], [207]. Accordingly, the requirement to take the warning into account was met: [210]. Criminal Procedure Act 1986 (NSW), s 133(3) applied Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 applied As to ground 5(1) – conversation with Fitzhenry in early 2008 (11) It was open to the judge to find that a conversation took place prior to 9 May 2008, in which Mr Moses Obeid demonstrated excitement as to the prospect of an exploitable resource under Cherrydale: [232]-[233]. As to ground 5(2) – Minister's "strong suggestion" of small area "in the east" (12) The finding by the trial judge as to what Mr Macdonald said to Mr Mullard at a meeting with Mr Macdonald on 6 June 2008, based on the latter's evidence, was open and the criticisms of the finding lacked substance: [243]. As to ground 5(3) – whether Bylong area considered by DPI at May meeting (13) It was open to the judge to find that the Bylong Valley was not an area that officers in the Minister's department discussed with Monaro Mining NL in early May 2008. The competing evidence was identified and discussed by the judge; the suggestion that the finding was not open was without substance and should be rejected: [248], [253]. As to ground 5(4) – the fourth misconduct (the Wiles maps) (14) It was open to the trial judge to find that the Wiles Map 2 was shown to Mr Brook at a meeting on 7 July 2008 with Paul and Moses Obeid at the Wentworth Hotel. That finding depended on acceptance of the reliability of Gardner Brook's evidence and the absence of evidence that the map had been provided to the Obeids by anyone other than Mr Macdonald. Three complaints relating to the fact that Mr Brook had been shown the map at the ICAC hearings but was not shown the map in giving evidence, and gave a flawed description of the map, were addressed by the judge and provided no basis for concluding the judge's finding of fact was not open: [262], [268], [270]. As to ground 5(5) – warning as to unreliability of Mr Brook (15) The judge expressly addressed the appellants' claim that Mr Brook's evidence as to the map was tantamount to identification evidence and required a warning as to unreliability compliant with s 165 of the Evidence Act. Correctly noting that this was not "identification evidence" as defined in the Evidence Act, the trial judge nevertheless addressed the manifold criticisms of Mr Brook's evidence, applied the necessary degree of scepticism and detachment required by the warnings, and explained her process of reasoning: [291]. As to ground 5(6) – basis of finding as to Wiles Map 2 (16) The challenge to the judge's reliance on Mr Brook's unprompted reference to a "contiguous area" in describing the extent of the coal seam, on the basis that the judge misunderstood the evidence, did not show that her reliance on that evidence was not open: [301]. As to ground 5(7) –finding that eighth act of misconduct proved (17) The finding that Mr Macdonald caused a member of the Obeid family to be provided with a memorandum and map identifying proposed coal release areas dated 21 July 2008 was open on the evidence. The evidence of this matter was properly regarded in its historical context, and with specific regard to the evidence of Mr Brook. The evidence did not demonstrate that the conclusion that Mr Brook did not receive the Wiles Map 2 from Monaro Mining was not open: [329], [337]. As to common ground (2) – legal principles (18) In considering a challenge to the reasonableness of a verdict under the first limb of s 6(1), the appeal court must undertake an "independent assessment of the evidence, both as to its sufficiency and its quality": [351]. Criminal Appeal Act 1912 (NSW), s 6(1) M v The Queen (1994) 181 CLR 487; [1994] HCA 63 applied (19) In circumstances where an appeal ground invokes the first limb of s 6(1), but on the basis of specific errors, if the errors are not made out, there is no obligation on the appeal court to review the whole of the judgment to determine whether it entertains a reasonable doubt: [368]. Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, referred to (20) Ground 2 in the present case was not expressly articulated by reference to specific errors of fact, but ground 5 was. As to ground 5, the appellants were required to demonstrate that the findings were not reasonably open; considering ground 2, the question was whether the Court entertained a reasonable doubt as to the ultimate finding of guilt, or as to a step essential to that finding, which doubt was not assuaged upon having regard to the advantage of the trial judge having seen and heard the evidence at trial: [372]-[374]. Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, applied (21) In a circumstantial case, to establish that particular findings leave open a reasonable hypothesis consistent with innocence (and thus permit a reasonable doubt as to the verdict), the Court must be satisfied that having regard to all of the circumstantial evidence, the doubt remains: [378]. (22) Rejection of a challenge to specific findings on the basis that the findings were open to the trial judge may not preclude the formation of a reasonable doubt as to the outcome: [378]. As to common ground (2) – whether verdicts unreasonable (23) Having engaged in an assessment of the whole of the evidence, the court was satisfied that the indispensable elements were established beyond reasonable doubt. The Court was of the view that the prosecution had proved beyond reasonable doubt the existence of a conspiracy as alleged in the indictment, and that each of the co-accused were participants in it at the time at which it was formulated, namely prior to 9 May 2008: [559]-[560]. INDEX TO JUDGMENT PART A INTRODUCTION The indictment and elements of the offence [10] Brief factual overview Terms of indictment [13] Particulars – acts of misconduct [14] PART B SPECIFIC GROUNDS Common ground 1 [20] Ground 1(1) – no agreement to do particular unlawful act Nature of challenge [22] Process for granting exploration licences [32] Coal resources in Bylong Valley [37] Conclusions – ground 1(1) [38] Ground 1(2) – no act required of Obeids Nature of challenge [40] Authorities [44] Ground 1(3) – no agreement Macdonald would not act "but for" improper purpose [55] Ground 1(4) – conduct not "in connection with" granting of exploration licence at Mount Penny [71] Ground 1(5) – no agreement that conduct serious and meriting criminal punishment [77] Ground 1(6) – duties of impartiality "and/or" confidentiality The pleading point [82] Material not confidential [86] Conclusions: Ground 1 [98] Common ground 3 – absence of Shepherd direction [99] Common ground 4 – failure by prosecution to call evidence [106] Specific grounds – Edward Obeid Identifying further grounds [131] Ground 6 – admissions by co-accused [135] Legal principles [139] Failure to explain deployment at trial [155] Ground 7 – use of inadmissible evidence [173] Ground 8 – admissions and consciousness of guilt [195] Common ground 5 – critical findings of fact [211] Ground 5(1) – conversation with Fitzhenry in early 2008 [214] Ground 5(2) – Minister's "strong suggestion" of small area "in the east" [234] Ground 5(3) – whether Bylong area considered by DPI at May meeting [244] Ground 5(4) – the fourth misconduct (the Wiles Maps) [254] Ground 5(5) – warning as to unreliability of Mr Brook [273] Ruling of trial judge [284] Conclusions at to warnings [289] Ground 5(6) – basis of finding as to Wiles Map 2 [292] The possibility of a second map [303] Absence of evidence on question of maps [312] Ground 5(7) - finding that eighth act of misconduct proved [314] PART C UNREASONABLE VERDICTS Common ground 2 – unreasonable verdicts [341] Applicable legal principles [348] Criminal Appeal Act, s 6(1), first limb [350] Trial without a jury [353] Unreasonable verdict challenge in a judge alone trial [360] Key challenges [377] (1) Reasoning of trial judge [379] (2) Existence of agreement before 9 May 2008 [385] (3) Events of 9 and 14 May 2008 [390] (4) Period 26 May – 16 June 2008 [406] (5) Period 17 June – 30 June 2008 [427] (6) Period 1 July 2008 – 14 July 2008 [439] (7) Seventh act of misconduct – list of companies [489] (8) Eighth act of misconduct – coal allocation areas [506] Other matters Other particulars [527] Distancing Obeid name from coal activities [544] Statements to journalists [553] Ground 2 – Conclusions [559] PART D ORDERS [561] JUDGMENT PART A INTRODUCTION 1. THE COURT: Following a series of interlocutory rulings in 2019, the appellants, Ian Michael Macdonald, Edward Moses Obeid and Moses Edward Obeid, stood trial before Fullerton J on a single count of conspiring together that Mr Macdonald would wilfully misconduct himself in public office, namely as Minister for Mineral Resources. (The precise terms of the charge will be considered shortly.) The trial, commencing in February 2020, proceeded over 77 days before the judge sitting without a jury, with final submissions in February 2021. 2. On 19 July 2021, the judge delivered her verdict and reasons, finding each of the appellants guilty. [1] In a further judgment delivered on 21 October 2021, Fullerton J sentenced each of the appellants to a term of imprisonment. 3. Each appellant has filed a notice of appeal in relation to his conviction; Mr Macdonald, who was sentenced to imprisonment for nine years and six months, with a non-parole period of five years and three months, has sought leave to appeal the severity of his sentence. At the time of the hearing of the appeal, each of the appellants remained in custody serving a non-parole period which had commenced on the date of sentencing. 4. The nature of the conspiracy was unusual in that it alleged an agreement between the three persons charged that one person, namely Mr Macdonald, should conduct himself in a manner which constituted the underlying offence (described in submissions as the predicate offence) of wilfully misconducting himself in public office. Members of the Obeid family were said to be the beneficiaries of Mr Macdonald's misconduct. The prosecutor did not particularise any acts of either Edward Obeid (Mr Obeid Snr) or Mr Moses Obeid in furtherance of the conspiracy. 5. The factual circumstances of the matter were complex, as were the grounds of appeal. Many grounds were common to all three appellants, but some had additional grounds. It will be convenient to deal with the facts as necessary to engage with the particular grounds of appeal and submissions. The grounds may conveniently be divided into three categories, namely: 1. Challenges to the indictment, including the elements of the offence; 2. Assertions by each appellant that the verdict against him was unreasonable or could not be supported having regard to the evidence, under the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW); and 3. Miscellaneous challenges to the fact finding and specific allegations of legal error on the part of the trial judge. 1. Grounds not involving a question of law alone require leave pursuant to s 5(1) of the Criminal Appeal Act, as does Mr Macdonald's appeal against sentence. As many grounds satisfy the requirement for an appeal as of right (including category (a) grounds), and as others (though not all) are reasonably arguable, it is convenient to grant leave so far as necessary to cover all grounds. (Hereafter the applicants will be referred to as appellants.) 2. With respect to the challenges to the judge's fact finding in category (b), it will be necessary to identify the nature of the exercise based on the first limb of s 6(1) of the Criminal Appeal Act, and, in particular, the relationship between those generic challenges and challenges to specific findings of fact which require that a miscarriage of justice be demonstrated under the third limb of s 6(1). 3. In addition to the complexity of the evidence there is complexity in the reasons. The judgment was lengthy (comprising over 670 pages and 2,047 paragraphs) and precise in its references to transcript and documentary material (there were over 2,000 footnotes). [2] Although to a large extent the prosecution case was circumstantial, the judge adopted a highly structured and step by step process in reaching her conclusions. She was meticulous in stating the extent to which a particular finding was probative of an element of the offence or an intermediate fact. While it will be necessary to summarise the judge's reasoning, it must be understood that the strength or otherwise of ultimate findings depended upon the cumulative effect of earlier findings. 4. It is convenient to start with the terms of the indictment and the nature of the offence. The indictment and elements of the offence Brief factual overview 1. There were two critical factors which underlay the prosecution of the appellants. The first was that on 27 September 2007 a company associated with the Obeid family, Locaway Pty Ltd, entered into a contract to purchase a property known as Cherrydale Park to the west of Mount Penny at Bylong, which is north of the Hunter Valley. Locaway was a trustee for the Moona Plains Family Trust, the beneficiaries of which were members of the Obeid family. The directors of Locaway were Paul Obeid and Damian Obeid, sons of Mr Obeid Snr. Settlement occurred on 15 November 2007. The location of Cherrydale Park may be seen on the map which is annexure A to these reasons. 2. The second material fact is that the Department of Mineral Resources had identified a coal seam which followed the general direction of the Bylong Valley, between the towns of Bylong in the east and Wollar in the west. The coal area is also marked on the map which is annexure A to these reasons. The area was described as being in the shape of a sideways S with the eastern (north-south) section lying under three properties of which the most southerly was Cherrydale Park. Directly to the north of Cherrydale Park was a second property, Donola, and to the north of that a third property, Coggan Creek. A short distance to the east of Donola was the Mount Penny trig point, which gave the area its name, variously described as north Bylong-Mount Penny and the Mount Penny area. 3. At the time the Obeid family purchased Cherrydale Park it was used as fertile grazing land and had an attractive house and surrounding gardens. At that time, an area which included the three properties was the subject of an exploration licence (EL) granted under the Mining Act 1992 (NSW) known as EL6676, which was held by the Department of Primary Industries. There was, in late 2007, no intention on the part of the Department to release the area for private exploration because the extent and value of the coal resource had not been assessed. In broad terms, the charge was directed to steps taken by Mr Macdonald as Minister for Mineral Resources to release the area for exploration, with potential benefits for the Obeid family through their ownership of Cherrydale Park. Terms of indictment 1. The trial proceeded on an indictment dated 11 February 2020 by which the Director of Public Prosecutions charged the appellants that: "Between about 1 September 2007 and about 31 January 2009 at Sydney and elsewhere in the State of New South Wales, each of the accused conspired together that Mr Macdonald would, in the course of or connected to his public office as Minister for Mineral Resources in the Executive Government of the State of New South Wales, wilfully misconduct himself, without reasonable cause or justification, by doing acts: (a) in connection with the granting of an exploration licence at Mount Penny in the State of New South Wales; and (b) concerning the interests of Edward Moses Obeid, and/or Moses Edward Obeid and/or their family members and/or associates; and (c) knowingly in breach of: (i) his duties and obligations of impartiality as a Minister in the Executive Government of the State of New South Wales; and/or (ii) his duties and obligations of confidentiality as a Minister in the Executive Government of the State of New South Wales, such misconduct being serious and meriting criminal punishment having regard to the responsibilities of the Office Mr Macdonald occupied as Minister for Mineral Resources and his responsibilities as the holder of that Office, the importance of the public objects which the Office and Officeholder serve and the nature and extent of the departure from those objects." Particulars – acts of misconduct 1. The prosecution did not provide a statement of the acts which it was agreed Mr Macdonald would undertake: rather, it relied on establishing an agreement to undertake acts falling within the cumulative elements of the charge. (The primary legal challenge to the convictions on the appeal was directed to the alleged inadequacy of that course.) The prosecutor did, however, provide particulars, which were revised during the trial, of the acts said to have been undertaken by Mr Macdonald pursuant to, and in furtherance of, the agreement reached with Mr Obeid Snr and Mr Moses Obeid. The case ultimately addressed in closing submissions was particularised in a document dated 30 October 2020 and identified eight acts of misconduct alleged to have been committed by Mr Macdonald. As will be seen, the first act of misconduct was said to have occurred on or about 9 May 2008. For that to have occurred pursuant to and in furtherance of the agreement charged, that agreement must have been in place by 9 May 2008. The prosecution case proceeded on that basis. 2. The revised statement of particulars omitted what had been the third act of misconduct originally relied upon. The remaining particulars were not renumbered, and were as follows: "FIRST MISCONDUCT: On or about 9 May 2008, Mr Macdonald sought information, via his chief of staff Mr Jamie Gibson, from the Department of Primary Industries (DPI) as to the volume of coal reserves in the area of Mount Penny (in the Bylong Valley, New South Wales) (Mt Penny). He did so in breach of his duty of impartiality as he knew the Obeid family owned property in this location. SECOND MISCONDUCT: On or about 14 May 2008, Mr Macdonald sought further information, via his chief of staff Mr Jamie Gibson, from the Department of Primary Industries about coal reserves in the area of Mt Penny including whether it was possible for the DPI to open its holdings for tender. He did so in breach of his duty of impartiality as he knew the Obeid family owned property in this location. … FOURTH MISCONDUCT: In the period 9 May to 9 July 2008, Mr Macdonald caused Mr Edward Obeid, Mr Moses Obeid or another member of the Obeid family, to be provided with a copy of: (i) a map titled 'Mt Penny' area, prepared by Ms Leslie Wiles dated 9 May 2008 (Wiles Map 1); and (ii) a map titled 'North Bylong – Mt Penny Area' prepared by Ms Leslie Wiles dated 30 May 2008 (Wiles Map 2). He did so in breach of his duty of impartiality as he knew the Obeid family owned property in this location, and in breach of his duty of confidentiality as both maps were confidential. FIFTH MISCONDUCT: Between 4 and 16 June 2008, Mr Macdonald directed that the 'potential open cut area' depicted in Wiles Map 2 be reduced to a smaller area comprising the eastern portion only. He did so in breach of his duty of impartiality as he knew the Obeid family owned property in this location. SIXTH MISCONDUCT: Between 17 June and 23 July 2008, Macdonald communicated to Edward Obeid and/or Moses Obeid that the EOI process for Mt Penny was to commence at the end of July 2008. He did so in breach of his duty of impartiality, as he knew the Obeid family owned property in a location proposed to be included in the EOI (ie Mt Penny), and in breach of his duty of confidentiality as this information was confidential. SEVENTH MISCONDUCT: On or after 7 July 2008, Macdonald caused Edward Obeid, Moses Obeid or another member of the Obeid family, to be provided with: (i) a document titled 'Company EOI 2 July 2008' containing a list of companies proposed to be invited to participate in the EOI; or (ii) information as to the companies on that list. He did so in breach of his duty of impartiality, as he knew the Obeid family owned property in a location proposed to be included in the EOI (ie Mt Penny), and in breach of his duty of confidentiality as the list was confidential. EIGHTH MISCONDUCT: On or after 23 July 2008, Macdonald caused Edward Obeid, Moses Obeid or another member of the Obeid family, to be provided with: (i) the page [of a memorandum titled 'Coal allocation' dated 5 August 2008] with the heading 'MEDIUM COAL ALLOCATION AREAS'; and (ii) a map titled 'Proposed Coal Release Areas for EOIs' prepared by Fred Schiavo dated 21 July 2008 (Schiavo Map 3). He did so in breach of his duty of impartiality, as he knew the Obeid family owned property in a location proposed to be included in the EOI (ie Mt Penny), and in breach of his duty of confidentiality, as the information in this document was confidential. NINTH MISCONDUCT: Between 27 November 2008 and 13 January 2009, Macdonald communicated to Edward Obeid and/or Moses Obeid that the EOI process was to be (or was) reopened to allow the 'White Group' of companies (including Cascade Coal P/L) to apply. He did so in breach of his duty of impartiality, as he knew the Obeid family owned property in a location included in the EOI (ie Mt Penny), and in breach of his duty of confidentiality as this information was confidential." 1. The manner in which the prosecutor deployed the particulars was described by the trial judge in the following terms: "179 The Crown has sought to prove the existence of the conspiracy of the object and scope alleged in the indictment by proving Mr Macdonald committed each of eight separate acts of wilful misconduct particularised in the Revised Statement of Particulars. In the Crown's submission, those acts of misconduct committed by Mr Macdonald between May 2008 and January 2009, as the opportunity presented for him to fulfil his agreement with Edward Obeid and Moses Obeid (forged as at 9 May 2008) that he would intentionally do things in connection with the granting of an EL at Mount Penny for the improper purpose of advancing or benefitting Edward Obeid and/or Moses Obeid and/or members of their family and/or associates, in wilful breach of his Ministerial duties of confidentiality and/or impartiality. 180 The Crown submitted that those proven acts of misconduct, viewed in combination, are available to the Crown to prove that the conspiracy alleged was in existence before the first act of misconduct was committed by Mr Macdonald on 9 May 2008, that it continued up to 30 January 2009 (with the ninth act of misconduct committed no later than 13 January 2009) and that each of the eight acts of misconduct were acts of misconduct committed by him in furtherance of the conspiracy to which he was a party and from which his participation in the conspiracy is proved." 1. As will be explained in detail below, the judge found that the first and second acts of misconduct were established, but that, taken alone, they did not provide a sufficient basis for her to be satisfied beyond reasonable doubt as to the existence of the conspiracy. The judge further found that the fourth, seventh and eighth acts of misconduct were established. She was not satisfied that the fifth, sixth and ninth acts were established in the terms in which they were pleaded, although she was satisfied as to aspects of each. 2. It may be noted that the indictment charged that Mr Macdonald misconducted himself in public office in breach of his duties and obligations of "impartiality" and "confidentiality" as a minister. Each of the acts of misconduct, other than the first, second and fifth, alleged a breach of both duties: the first, second and fifth alleged a breach only of his duty of impartiality. 3. The judge then summarised the manner in which the case was presented based on the particulars: "185 In proving the existence of the conspiracy (that is, in proving an agreement of the kind alleged in the indictment), the central and dominating fact in issue framing the way the trial was conducted was whether the Crown could establish that between May 2008 and January 2009 Mr Macdonald committed any of the eight successive acts of wilful misconduct particularised by the Crown and, if he acted in that way, whether he did so pursuant to the conspiracy alleged, including whether he did so for the improper purpose alleged. 186 The allied question whether the Crown can also prove that were it not for the improper purpose alleged, Mr Macdonald would not have acted in connection with the granting of an EL at Mount Penny as he has been shown to have acted (that is, by deliberately breaching his duties and obligations of confidentiality and/or impartiality as the Minister for Mineral Resources) was also a dominating fact in issue in the trial. 187 A further and discrete fact in issue was whether the Crown could prove that Mr Macdonald knew that the Obeids owned a rural property (Cherrydale Park) situated near Mount Penny in the Bylong Valley. That fact was conceded by the Crown to be indispensable to proof of the conspiracy and, for that reason, it was a fact which needed to be established beyond reasonable doubt. That fact is hereinafter referred to as the Shepherd fact." PART B SPECIFIC GROUNDS Common ground 1 1. The structure of the cases run by the appellants on appeal was, as reflected in the written submissions, that Mr Moses Obeid presented the primary arguments on the five common grounds, with some supplementation by the other appellants, who also had separate grounds for which they took primary responsibility. Ground 1 in each notice of appeal was as follows: "1 The Trial Judge erred in finding that the conspiracy alleged was available at law or in the alternative misdirected herself as to an essential element to establish guilt for the conspiracy alleged." [3] 1. The ground itself was uninstructive as to the nature of the challenge. However, the written submissions identified six separate bases of challenge in the following terms: 1. No agreement to do any particular unlawful act; 2. No "agreement" to do any act alleged against Moses Obeid; 3. No agreement that Macdonald would not act "but for" the improper purpose; 4. Conduct not defined by the phrase "in connection with the granting of an exploration licence at Mount Penny"; 5. No agreement that conduct was serious and meriting criminal punishment; and 6. Error in referring to duties of impartiality "and/or" confidentiality. Ground 1(1) – no agreement to do any particular unlawful act Nature of challenge 1. The gravamen of the challenge under this sub-ground was threefold. First, the charge was said to be formulated at too high a level of generality to constitute a conspiracy at law. What was required was an agreement to do a particular act or acts. Secondly, an agreement that one conspirator would commit an offence, namely misconduct in public office, did not cure the problem: no particular act (or acts) was (or were) identified by the use of the phrase. Thirdly, where no particular act had been identified at the date of the agreement, it could not be said that there was a concluded agreement, as opposed to a common intention, expectation or discussion of possibilities. [4] 2. The principle that the formulation of an intention, albeit common between two persons, or the expectation of two persons that a particular course will be followed, or discussion of the possibility of taking a particular course will not, singularly or in combination, constitute an unlawful conspiracy. So much must be accepted; in the words of McHugh J in Peters v The Queen, [5] "there can be no conspiratorial agreement unless the accused and his or her co-conspirators also intend that the common design should be carried out". However, it is also true, as was accepted by the appellants, that an agreement to do an unlawful act or to do a lawful act by unlawful means, constitutes the actus reus of the conspiracy, although no overt acts have been undertaken at that time. [6] (Because the crime is one of agreement, the distinction between the mental element and the physical act is fraught, if not meaningless. [7] ) It is also common ground that a conspiracy, for example, to defraud an insurance company, may be complete although the precise means or method by which the conspiracy is to be effected is not known, nor agreed upon. [8] 3. Statements of principle in different language may be found in different cases, often determined by the particular facts under consideration and the nature of the substantive offence, the subject of the conspiracy. Further, there is no bright line to be drawn between an agreement to carry out unlawful acts or an unlawful purpose where the means or method by which the purpose will be carried out has not been identified, on the one hand, and an inchoate agreement on the other. 4. As the respondent submitted, the appellants failed adequately to address the terms of the indictment which did not leave the nature of the unlawful conduct at large, but identified it in a series of descriptive phrases. First, par (a) in the indictment described the acts in question as being undertaken "in connection with the granting of an exploration licence at Mount Penny". That consideration limited the scope of the particular acts by reference to a power of the Minister conferred by the Mining Act. There was an element of uncertainty as to the precise acts which would be required, but they would fall within the class reflected in the process required to be carried out for the granting of an exploration licence, which will be outlined below. The charge did not require that the actual acts in connection with granting the exploration licence were unlawful in the sense of not complying with the requirements of the Mining Act, other than the implied requirement of being done for a proper purpose. 5. Secondly, and cumulatively, pursuant to par (b) the acts were to be done "concerning the interests of [the Obeid family]". The "interests" may be understood as matters of benefit to the Obeid family. That element required that steps taken towards the granting of an exploration licence must be undertaken in a manner and with the intention of benefiting the Obeid family. There was no expectation or intention that the Obeids would obtain an exploration licence; rather, the prosecution case was that steps would be taken by the Minister to release the Mount Penny area for exploration and to ensure that the Obeids were involved in the process so as to allow them to benefit from the opportunity to negotiate with the successful grantee. It may be noted that there was no initial proposal from the Department to release the Mount Penny area: the departmental view was that further assessment needed to be done to establish the prospects of financially viable recovery of coal from the area. 6. Thirdly, in taking those steps, the Minister, it was agreed, would knowingly act in breach of his obligations of impartiality and/or confidentiality. That constituted the mental element of the predicate offence. 7. The effect of the three descriptive limbs of the acts which were agreed to be done, understood in the context of the Obeids' ownership of land in a particular area and the possibility of an exploration licence being granted over or in relation to that land, involved a degree of particularity in relation to the nature of the acts the subject of the charge. 8. It is important to note, however, as senior counsel for Mr Moses Obeid (Mr Walker SC) submitted, that there is an important distinction to be drawn between the acts which would constitute the element of the substantive offence of misfeasance in public office and the particular acts of misconduct which, it was said by the prosecutor, demonstrated the existence of the conspiracy. While the distinction is important, the function served by the particulars of misconduct may engage both limbs, although the primary function is the second (evidential) limb. The particulars may also be seen as illustrating the class of acts which, although not agreed upon in advance, could fall within the class which must have been in contemplation, albeit at a higher level of generality. 9. In the course of submissions, various examples were explored to illustrate what might be essential for a properly pleaded conspiracy. That required discriminating between the "acts" which must be agreed upon, and the "method" by which those acts might be carried out, which did not need to be foreseen and agreed upon in advance. Simple examples were referred to, such as a conspiracy to rob a bank and illegal entry of premises. However, while simplification may be a valuable aspect of illustration, it carries an inherent risk of distortion. Thus, the examples of bank robbery and illegal entry of premises each involves a singular act. By contrast, the offence of misfeasance in public office may, but does not necessarily, involve a single act. Rather, it may involve a process carried out over some months, as occurred in the present case. As has been stated, this was not a case in which the underlying misconduct was the issue of an exploration licence to one company, on the basis of an expression of interest formulated with knowledge, improperly obtained, of the content of the offers of other appellants. 10. Further, the examples of simple conspiracies involved underlying offences with well understood elements. That contextual element was missing in relation to the activities the subject of the present charge. Little attention was given in the appellants' submissions to the process and activities required for the issue of an exploration licence, which might involve multiple steps taken "in connection with" the grant of such a licence. At least a brief explanation of that process is necessary. Process for granting exploration licences 1. This exercise was undertaken by the trial judge in some detail. [9] The judge noted that the power to grant an exploration licence was conferred on the Minister for Mineral Resources by s 22 of the Mining Act. A skeleton of statutory requirements was set out in the Mining Act, with minor procedural matters found in Pt 3, Div 1 of the Mining Regulation 2003 (NSW). [10] The source of the requirements for ELs in Pt 3, Div 1 of the Mining Act included the following provisions: [11] 13 Applications (1) Any person may apply for an exploration licence. (2) An application for an exploration licence: (a) must specify the group or groups of minerals in respect of which it is made, and (b) must be lodged with a mining registrar, and (c) must be accompanied by the required particulars, and (d) must be accompanied by the appropriate lodgment fee. (3) The required particulars are as follows: (a) a description, prepared in the manner prescribed by the regulations, of the land over which the exploration licence is sought, (b) particulars of the financial resources available to the applicant, (c) particulars of the technical advice available to the applicant, (d) particulars of the program of work proposed to be carried out by the applicant on the land over which the exploration licence is sought, (e) particulars of the estimated amount of money that the applicant proposes to expend on prospecting. (4) An application that relates to land within a mineral allocation area may not be made, except with the consent of the Minister, in relation to any group of minerals that includes an allocated mineral. 14 Invitations for tenders (1) This section applies only in relation to allocated minerals in land within a mineral allocation area. (2) The Minister may, by notice published: (a) in a newspaper circulating generally throughout the State, and (b) in one or more newspapers circulating in the locality in which the land concerned is situated, invite tenders for an exploration licence for an allocated mineral. (3) An invitation: (a) must describe the land to which it relates, and (b) must identify the allocated mineral to which it relates, and (c) must specify the place at which, and the date on or before which, tenders for the exploration licence should be lodged. 15 Tenders (1) A tender for an exploration licence: (a) must be lodged with the Director-General in accordance with the invitation for the tender, and (b) must be accompanied by the required particulars, and (c) must be accompanied by the appropriate lodgment fee. (2) The required particulars are as follows: (a) particulars of the financial resources available to the tenderer, (b) particulars of the technical advice available to the tenderer, (c) particulars of the program of work proposed to be carried out by the tenderer on the land over which the exploration licence is sought, (d) particulars of the estimated amount of money that the tenderer proposes to expend on prospecting. (3) A tender may specify that, in the event that the tender is successful, the tenderer will pay a specified amount in addition to the cash reserve price (if any) specified in the invitation for the tender. (4) A tender may be made in respect of the whole or any part of the land described in the invitation for the tender. 16 Minister may require further information The Minister may require the applicant or tenderer to furnish further information in connection with the application or tender, including (if the applicant or tenderer is a corporation) information as to the extent to which the controlling power in the corporation's affairs is held by: (a) a foreign company within the meaning of the Corporations Act 2001 of the Commonwealth, or (b) a company registered under that Act that is taken for the purposes of that Act to be registered in a State or Territory other than New South Wales, or (c) an individual who is a resident of a foreign country. 17 Minister may exclude land from application or tender (1) The Minister may, by order in writing, direct that any part of the land to which an application or tender relates be excluded from the application or tender. (2) A direction takes effect on the date on which written notice of the direction is served on the applicant or tenderer. (3) A tenderer affected by any such direction may amend the tender by written notice lodged with the Director-General on or before such date as may be specified in the direction. 1. The prosecutor lead evidence of the processes within the Department at the relevant time from the Deputy Director-General Mineral Resources, Alan Coutts, and the Director of Coal and Petroleum Development, Brad Mullard. 2. Mr Mullard gave evidence that prior to the publication in the Gazette in December 2007 of an order of the Governor designating the whole State as a "mineral allocation area", specific areas had been designated as "mineral allocation areas" for coal. [12] The purpose of the change was to ensure the orderly development of coal resources, which was not possible when an application for an exploration licence could be made for an area outside the mineral allocation areas. The result had been the speculative land-banking of areas with unknown potential by large miners. [13] 3. The trial judge identified the process for seeking an exploration licence in the following terms: "693 The particular process by which an EL was granted under the Mining Act was firstly determined by: (1) Whether the coal resource in respect of which the EL application was made was part of a Mineral Allocation Area for coal; and (2) Having regard to the Coal Allocation Guidelines, whether the EL would be granted via direct allocation or subject to the outcome of a competitive EOI process. 694 Where an EL was granted subject to the outcome of a competitive EOI process, as was the case with the Mount Penny EL, the EOI process involved: (1) The DPI collecting data about coal resources which coal mining companies were interested in exploring. (2) Recommendations by the DPI to the Minister with respect to the release of particular coal resources to tender. (3) The preparation and launch of an EOI process which was either open any coal mining company could apply) or limited (restricted to companies the DPI invited to apply). The EOI process in which the Mount Penny Coal Release Area was included was a limited tender process. (4) The evaluation of the EOI applications received by the DPI by an independent Evaluation Committee and probity auditor. (5) The issue of a Ministerial Submission by the Evaluation Committee recommending the preferred applicant for the EL(s). (6) Upon the Minister accepting the Evaluation Committee's recommendation, the Minister granting consent for the preferred company to apply for the EL pursuant to the regime in s 13(4) of the Mining Act. (7) The company making an application for the EL under s 13 of the Mining Act. (8) The grant of the EL to that company by the Minister under Division 3 of the Mining Act." 1. The judge then dealt with each of the steps set out in [694] separately. It is convenient to set out the judge's summary of the evidence, although it is lengthy and detailed. [14] "Recommendations by the DPI to the Minister about releasing particular coal resources to tender 700 The usual process for the allocation of ELs for coal resources in New South Wales involved the Department identifying a particular coal resource, or a group of coal resources, and recommending to the Minister that those areas be made the subject of either a competitive process or, in certain circumstances, granted by direct allocation. 701 Between May and June 2008, officers of the DPI were involved and at the Minister's request, in designating the boundaries of a number of new small to medium coal release areas in the Western, Hunter and Gunnedah Coalfields for inclusion in a proposed EOI process. 702 That process was undertaken by the DPI in accordance with the Coal Allocation Guidelines. The Guidelines for Allocation of Future Coal Exploration Areas (Coal Allocation Guidelines) 703 Coal Allocation Guidelines operated to guide the DPI's Coal Allocation Committee in the decisions it made concerning the nomination of future coal exploration areas. Various iterations of the Coal Allocation Guidelines were produced by the DPI and amended and adjusted over time for various purposes with the approval of the Minister. 704 The Coal Allocation Guidelines dated January 2008 were in place at all relevant times during the currency of the conspiracy, replacing … the Coal Allocation Guidelines issued by the DPI in March 2006. 705 The Coal Allocation Guidelines were issued subsequent to the allocation of New South Wales as an MAA for coal for the 'controlled and rational release of potential coal development areas and the setting of special conditions for each allocation'. The Coal Allocation Guidelines confirm the statutory requirement for the Minister's consent to the making of any application for an EL in respect of a coal resource in a MAA. 706 The Coal Allocation Guidelines do not apply to any existing coal titles but to only to 'future coal exploration areas'. 707 Mr Mullard gave evidence about the grouping of potential coal allocation areas into four subcategories: (1) Subcategory (i) concerns major standalone areas identified as areas containing sufficient coal to develop a 'large' new mine. (2) Subcategories (ii) and (iii) concern, respectively, substantial additions to existing mines and minor additions to existing mines. The former are considered to have potential to be major standalone areas, being coal mined from a continuation of an existing mine over areas adjacent to an existing mine. The latter are not considered large enough to develop major standalone mines, being small areas adjacent to existing mines which could be mined for a continuation of existing operations. (3) Sub-category (iv) concerns the allocation of 'small areas unrelated to existing mines,' including remnant coal resources left from previous mining operations' and 'small deposits with some development potential'. 708 Allocation methods were nominated for each of the four subcategories. Two allocation methods are nominated: allocation by 'priority of application or by some limited form of expression of interest'. 709 The eleven small to medium coal release areas the subject of the EOI process launched on 9 September 2008 which included Mount Penny as 'Area 7' concerned small areas within subcategory (iv), that is, remnant coal resources and small deposits with some development potential. 710 In contrast to major standalone areas, or substantial/minor additions to existing mines (subcategories (i), (ii) and (iii) of the Coal Allocation Guidelines), under subcategory (iv) the minimum financial contribution of an applicant for the issue of an EL is 'based on tonnages of saleable coal, as specified in the appendix attached to the Coal Allocation Guidelines, ranging from $250,000 for a saleable tonnage of coal less than 5Mt to greater than $20 million (as a minimum contribution) for saleable tonnage of coal greater than 100Mt. As the appendix to the Coal Allocation Guidelines makes clear, the minimum financial contributions are indicative only, with the contributions varying depending upon whether the mining method is underground or open cut; the quality of the coal; whether it is for domestic or export purposes; and the size of the resources. 711 Mr Mullard gave evidence that for a mining company to lodge an EOI for the grant of an EL for any one of the four coal allocation categories in the Coal Allocation Guidelines, the company needed to have the capacity to assess the potential return from a successful mining of the coal resource, including the cost of establishing a mine, in order to assess the amount of coal that might be extracted under the terms of a mining lease. He also emphasised the need for the company to assess the cost of environmental studies and any other constraints that might impact on the company's capacity to undertake mining activities in the area. To that end, borehole data together with geological or geophysical surveys are essential to the preparation of reliable modelling. That model also needs to take into account the method of extraction and other indices. 712 Mr Mullard gave the following evidence: If you basically don't have any information, there is no basis for the company ‑ it is very high risk. So a company really doesn't have an understanding of what the coal is like, how deep it is, can it be mined by underground, what are the other geological constraints or other constraints that might apply. So you would be very reluctant to bid a substantial amount of money because the uncertainty was too high. The more information you have on a coal deposit, the less uncertainty there is in terms of your ability to mine it and the potential cash flows from that mining operation and that enables companies then to formulate a bid or an offer with a relevantly high degree of certainty; there is no guarantee, but they would be prepared to give a much better offer, generally a substantial offer, than where they had no information. 713 Mr Mullard made clear that while the DPI had information resources of various kinds including, relevantly, its own drilling data for the ELs that the Department held on behalf of the State of New South Wales, a mining company would also need to critically assess its capacity to make an informed assessment of where the coal resources within a coal exploration area might be located, the thickness of the available and accessible coal seam, and the quality of the coal itself. He gave the following evidence as to the significance, as he saw it, of an applicant for a coal EL in a small-to-medium coal release area having access to that general body of information as to which he said: Well, small to medium areas really were ‑ some of those were remnant areas, some of them were areas that didn't really have a lot of interest and the additional information really wasn't warranted by the Department to do a lot of work in those areas because they were never going to generate significant income. … By way of additional financial contribution. And there was a risk, significant risk, that if the department drilled these areas they might find there wasn't anything there worthwhile. So by and large where the department did its drilling focused on the larger stand‑alone areas. 714 The Coal Allocation Guidelines, in their various iterations, were available to the public on request. Mr Mullard gave the following evidence: So all of that information essentially was public information and companies could go to the Department and obtain information on those areas. And, in fact, the Department used to say 'we are looking at releasing areas in the Gunnedah Coalfield' or 'we are looking at releasing areas in the Western Coalfield' … What was confidential was the very specific 'this is the area that's going to be released'. Identifying coal resources for direct allocation and competitive tender 715 In the ordinary course of events, if a company wished to apply for an EL, it would write to the Minister or to the Department seeking the Minister's consent to apply by direct allocation. 716 Preliminary to any application being considered by the Minister, applications for consent to apply for ELs were considered at meetings of the Department's Coal Allocation Committee against, amongst other criteria, the Coal Allocation Guidelines. Departmental geologists on the Committee would verify the coal figures put forward by an applicant. Public interest considerations were also assessed, as was fairness to other applicants who had previously registered an interest or sought the Minister's consent to apply for an EL in respect of a subject area. 717 If the Coal Allocation Committee determined that a company's application for the direct allocation of an EL for coal was successful, the Committee would prepare a recommendation to the Minister so that he could, by way of invitation, provide his consent for that company to formally apply for the coal EL by direct allocation. In these circumstances, the Department would ordinarily draft a letter to the successful applicant which the Minister would sign. All unsuccessful applicants were informed by the DPI of that outcome. 718 A record of all applications for ELs by direct allocation and the outcomes of Coal Allocation Committee meetings, including successful and unsuccessful direction allocation applications, was maintained in the Coal Register in the form of a spreadsheet created and maintained by the DPI. 719 Mr Mullard gave evidence that the DPI also used the Coal Register to collect information about which unallocated coal resources were attracting interest in the industry. Those areas were released by the DPI from time to time under competitive EOI processes. 720 The inclusion of a particular coal resource in an upcoming EOI process was considered confidential information until such time as the EOI process was publicly released. The Coal Register was not publicly available. The information it contained was treated confidentially because, as Mr Mullard described it, 'it may contain … expressions of interest by companies that may contain commercial-in-confidence information so we did not make [the Coal Register] publicly available'. 721 The dual possibilities of assigning ELs via direct allocation or subject to competitive tender is particularly relevant to the fourth subcategory of potential coal allocation areas under the Coal Allocation Guidelines, namely 'small areas unrelated to existing mines,' including 'remnant coal resources left from previous mining operations' and 'small deposits with some development potential' which, as noted above, are allocated via 'priority of application or by some limited form of expression of interest'. A limited form of expression of interest 722 Mr Mullard explained that 'all of the allocations within mineral coal allocation areas were subject to an EOI process... which effectively wasn't a process that was defined in the [Mining Act] but it was a way of formalising the way the Minister made his decision to give consent' to a company to apply for an EL. EOI processes, including the EOI process launched in September 2008 in relation to eleven small to medium coal release areas including Mount Penny, were undertaken 'as a precursor to the power that might be exercised by the Minister in section 13(4)' of the Mining Act where the Minister gave consent to a particular company to apply for an EL. 723 That EOI process was limited in the sense that a limited number of companies, having been selected by the DPI referable to their expressions of interest in the types of coal resources being released to tender (as recorded on the Coal Register), were invited to participate and provided with an EOI Process Information Package prepared by the DPI. 724 While s 14 of the Mining Act provided for the allocation of ELs for allocated minerals in land within an MAA via a process of 'invitations for tender', Mr Mullard explained that provision was not used during his time at the DPI and that it was distinct from the EOI process with which the this trial was concerned. The Evaluation Committee's selection of a preferred mining company 725 Upon the receipt of expressions of interest from companies invited to participate in an EOI process, an independent Evaluation Committee and an external probity auditor were appointed to evaluate those applications against the criteria provided in the Coal Allocation Guidelines and elaborated upon in the EOI Process Information Package issued to invitee companies. Evaluation Committees and probity auditors were used in the Caroona and Watermark EOI processes together with the EOI process in respect of eleven small to medium coal release areas including Mount Penny. 726 The Evaluation Committee would identify the preferred applicant for an EL to the Minister in writing and recommend that the preferred applicant be granted consent to apply for an EL. The granting of consent by the Minister for the preferred company to apply for the EL pursuant to the regime in s 13(4) of the Mining Act 727 Whether a coal resource was to be directly allocated or released as a result of a competitive process, the Minister was required to consent to the making of the application. 728 The Minister invited applicants to make the necessary application on the basis of the Evaluation Committee's advice. Application by the recommended company for the EL under s 13 of the Mining Act 729 If the successful applicant then wished to proceed with its application, it would apply to the Department using the forms supplied on the Department's website, which require confirmation of certain administrative issues such as available financial resources, particulars of proposed program of work and a statement providing an estimate of the amount of money proposed to be spent on prospecting. Subject to adequate confirmation of these administrative issues by Departmental officers, an EL in the form of a deed would be prepared." Coal resources in Bylong Valley 1. The judge also summarised the history of the assessment of coal resources in the Bylong Valley, which had been the subject of two studies undertaken by the Department. The second (later) study, known as the "Dwyer report", prepared in 2005, recommended that further exploration programs were required to assess the coal resources in the region. [15] What followed was the grant to the DPI of EL 6676 on 21 November 2006. The purpose was to allow the Department to undertake exploration activities to assist in determining whether the area could be released to public tender. As the judge noted, Mr Mullard gave evidence that, as of May 2008, there had been little by way of a drilling program in EL 6676. [16] Conclusions – ground 1(1) 1. In a passage preceding the detailed discussion of the process, the judge concluded that there was a relevant connection between the steps taken prior to the EOI process and the process itself which demonstrated a relevant connection between those steps and the ultimate grant of the Mount Penny EL. [17] 2. The contextual material as to the process by which steps were taken to release land for expressions of interest, assess those expressions and finally grant an EL (if thought appropriate) provided a firm basis for concluding that the activities the subject of the pleaded agreement were sufficiently described to allow the parties to understand what was in contemplation. If it were assumed that each of the elements of the charge was established on the evidence, and it was established that those steps were taken for the pleaded purpose of benefiting the Obeid family interests, and putting to one side the other issues raised by the appellants, the charge would not be invalid on the basis that it did not identify with sufficient precision the nature of the conduct, the subject of the agreement between the parties. Accordingly, the challenge to the validity of the indictment based on the first element in ground 1 should be rejected. Ground 1(2) – no act required of Obeids Nature of challenge 1. The second element of the challenge in common ground 1 was that only one person to the agreement was expected to do anything, namely Mr Macdonald. The written submissions for Mr Moses Obeid succinctly stated the issue in the following terms: [18] "While a criminal conspiracy may not need to adhere to the same requirements as a contract for the purpose of the civil law, the concept of an 'agreement' requires that there be mutual promises or actions on the part of the parties." 1. At one level, this statement appeared to deny its own premise, namely that this was not a form of agreement which required consideration in the contractual sense. From a practical perspective, the proposition might mean no more than that Mr Macdonald was unlikely to act in a way which rendered him liable to criminal prosecution if he were to obtain no benefit from it. However, as a matter of principle it is unclear why there can be no conspiracy in which one, or indeed more than one of the conspirators, take no unlawful step except to be the recipients of favours for which they have not agreed to provide any benefit in return. 2. Further, it was not the case that the Obeids were not expected to take any step or do any act. The clear expectation was that they would coordinate with Mr Macdonald to take steps to obtain a benefit from the grant of the exploration licence, together with full knowledge of the process by which the grant would be achieved (as in fact happened). Whether or not those steps constituted criminal conduct was not the issue. If, for example, the act of a conspirator was to receive stolen money, he or she would commit the offence of dealing with the proceeds of crime. Whether such an offence would arise with respect to non-pecuniary benefits need not be addressed. Further, it was no part of the conspiracy, the subject of the charge, that Mr Macdonald obtained a benefit for his part in the arrangements. As will be seen in relation to issues considered below, there was evidence that the Obeids considered it either necessary or appropriate to distance themselves from the grant of the exploration licence by seeking to undertake dealings with the successful grantee through a corporate structure which did not readily reveal their involvement. 3. Again, apparently as a pragmatic consideration, Mr Moses Obeid drew attention to what he described as a difficulty the trial judge had in identifying any level of moral culpability on his part when it came to imposing a sentence. That matter can be put to one side. The sentence itself (which is not challenged) involved a significant period of imprisonment. The description of Mr Obeid's moral culpability may or may not be satisfactory; it does not, however, demonstrate that a conspiracy in which the recipient of favours is not actively involved in the substantive offending through his own unlawful conduct cannot be a valid charge of conspiracy. Authorities 1. The substantive argument in support of this ground relied upon statements in cases of high authority, which undoubtedly articulate the elements of a conspiracy as involving agreement for unlawful acts by more than one person, and perhaps all conspirators. The question is, in this circumstance, whether those descriptions were intended as identifying an essential element of all conspiracies, or whether they were descriptive of the circumstances of the case before the court. 2. First, it should be acknowledged that the following passage in the third appellant's written submissions is a correct statement of the law. "152 To establish a common law conspiracy, there must be an agreement; it is not sufficient to establish merely that there is an intention that an unlawful act be committed: R v Rogerson … at 280-281. Nor is an intention that an unlawful act be committed established merely by knowledge of, or an expectation that, such an act will occur: Trudgeon at 256. Even a (mere) coincidence of two or more minds to effect this object or objects will not amount to a conspiracy: Murphy (1837) 8 Car & P 297 at 310-311; 173 ER 502 at 508; Cunningham (1978) 39 CCC (2d) 169 at 180-181." 1. None of those statements, however, addresses the present issue. For that purpose, the appellants relied upon the following passage in the reasons of French CJ in The Queen v LK: [19] "62. A concise enunciation of the elements of conspiracy was given by the Court of Queen's Bench in Mulcahy v The Queen in 1868 in answer to questions proposed by the Lord Chancellor in relation to a prosecution under the Crown and Government Security Act. Willes J, delivering the opinion of the judges, said: 'A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means.' The House of Lords concurred. Notwithstanding its statutory context, the statement of the common law in Mulcahy has been accepted and applied in this Court." 1. The thrust of the principle which French CJ was considering, and which was articulated in Mulcahy v The Queen [20] , was that it was "not sufficient that the accused had intended to agree to commit the offence" but he "had to have intended to put the common design, the commission of the offence, into effect". [21] By contrast, the suggestion in Mulcahy that the agreement involved consideration, "capable of being enforced, if lawful", was expressly (and correctly) disavowed by the appellants. Otherwise, there is no authority for the proposition that each party to the conspiracy must agree to be responsible for some unlawful overt act in carrying out the agreement. 2. No passage in the joint reasons of the other members of the Court in LK (Gummow, Hayne, Crennan, Kiefel and Bell JJ) is relied upon in support of the principle espoused by the appellants. 3. French CJ in LK noted that the statement from Mulcahy had been approved in earlier decisions of the High Court. (It has also been criticised.) The first was a reference to The King v Kidman, [22] but that was only for the proposition that "the agreement to do an act itself is, in itself, an overt act in advancement of the intention to do the ultimate act agreed upon", a matter which does not support the appellants' contention. The second was a reference to The King v Boston, [23] but there the proposition was limited to the first limb of the statement in Mulcahy, namely that "[a] conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means". 4. The third authority was The Queen v Rogerson. [24] It is true that Brennan and Toohey JJ (at p 281) quoted the whole of the extract from Mulcahy referred to by French CJ in LK, but they did so for a limited purpose. Thus, in introducing the extract, Brennan and Toohey JJ stated: "What makes a conspiracy unlawful is the unlawfulness of its intended object or the unlawfulness of the means intended to effect its object." 1. Following the quote, which was set out to explain that proposition, the joint reasons continued: [25] "As the 'very plot' is the actus reus of the offence, the offence is complete before any further unlawful act is done or any further lawful act is done to carry the unlawful object into effect. When Willes J [in Mulcahy] spoke of an 'unlawful act', he was speaking of an act which has not occurred when the conspiracy is formed." 1. It should be added that no issue arose in Rogerson as to the acts done in furtherance of the conspiracy to pervert the course of justice. All the co-conspirators were involved in acts in the course of carrying out the conspiracy. However, the purpose of the conspiracy was to benefit then Detective Sergeant Rogerson who had been found with a known criminal closing a bank account and removing a large amount of money. The purpose of the conspiracy was to manufacture evidence that the money was legitimately obtained by Mr Rogerson by the sale of a car. The steps taken by two of the conspirators, Paltos and Karp, involving evidence of a sale by Rogerson and Nowytarger of a Bentley car to Karp, were not shown to have benefited either Mr Karp or Mr Paltos. The question in the High Court was whether there was sufficient evidence to support a finding that each of the respondents had the intent that, by producing the contract of sale to support a false story, police would be deflected from instituting a prosecution for an offence, the specific offence not being identified. [26] The offence was ultimately identified as possession of unlawfully obtained money resulting from the sale of drugs. There was nothing in the case concerned with the liability of a person who had taken no step in the course of the conspiracy, nor was to take any step pursuant to the conspiracy. [27] 2. It is not necessary to determine whether Mr Macdonald would obtain some benefit from the carrying out of the unlawful acts. A conspiracy does not cease to be one in circumstances where one party acts out of friendship for another, or in the belief that he will benefit from such conduct, whether the belief is reasonable or misguided. However, in the present case the evidence supported an inference that Mr Obeid Snr was an influential member of a faction within the governing Labor party. Mr Macdonald was not a member of that faction but was a member of another faction with less power within the government and therefore might well have thought it valuable to provide a favour to a powerful powerbroker. However, to repeat the dispositive response, the validity of a charge of conspiracy does not depend upon the motives, good, bad or misguided, of one of the conspirators. 3. The second element of common ground 1 should be rejected. Ground 1(3) – no agreement that Macdonald would not act "but for" the improper purpose 1. The third element of ground 1 was encapsulated in the following written submission: [28] "The alleged conspiracy could not amount to a conspiracy in law because the Crown did not allege that the parties agreed that Macdonald would conduct himself in the sense that he would not have done the acts the subject of the agreement 'but for' an identified improper purpose…." 1. The basic submission was that "[i]t is a necessary component of the concept of 'wilful misconduct' that Macdonald would not have exercised the power but for the illegitimate purpose". [29] The only authority for that proposition was a reference to Maitland v R; Macdonald v R [30] ("Maitland"). Maitland did not involve a charge of conspiracy but a charge of the underlying offence in the present conspiracy, namely wilful misconduct in public office. The facts involved the grant of an exploration licence by the Minister to a company known as Doyles Creek Mining Pty Ltd with the intention of benefitting Mr Maitland, a chairman and a shareholder of the company. The Court concluded that the rationale for the offence was "to prevent public officers (in the case of misfeasance) from exercising their power in a corrupt and partial manner". [31] From that it was inferred: "72 Having regard to the rationale for the offence, it would be surprising if it was necessary for the improper purpose to be the sole purpose. If, for example, a Minister of the Crown embarked upon a transaction for the purpose of conferring a benefit on himself or his friends, it would not seem to matter that he also has a belief that the transaction would or might benefit some members of the public. In these circumstances, if the transaction in question would not have been undertaken but for the improper purpose, then subject to the other elements being made out, the offence, in our opinion, would have been committed." 1. The precise terms of the complaint are of some importance. The appellants said that the prosecutor had accepted that she must establish that Mr Macdonald would not have committed the acts of misconduct but for an improper purpose, but they alleged a further requirement, namely that the conspirators agree that he would not have done the acts but for the improper purpose. In the alternative, the appellants submitted that the trial judge had misdirected herself as to this element of the offence. 2. Before addressing the submissions with respect to this ground, it is necessary to turn to the key statements as to the elements of the underlying offence, namely wilful misconduct (or misfeasance) in public office. When that is done, it will be seen that nowhere in the conventional statements of the law is there reference to an element of the offence expressed in the language of causation. The adoption of that language becomes bizarre when applied to the offence of conspiracy, where the underlying offence need not be committed and yet the unlawful agreement contains an inbuilt element of a causal relationship. On one view it may, but not in the sense relied on by the appellants. 3. In HKSAR v Hui Rafael Junior [32] the Hong Kong Court of Final Appeal stated: "45 For the purposes of the law of Hong Kong, the elements of the common law offence of misconduct in public office were stated by Sir Anthony Mason NPJ in Sin Kam Wah v HKSAR [33] as follows: 'The offence is committed where: (1) a public official; (2) in the course of or in relation to his public office; (3) wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.'" 1. A number of propositions (discussed in the following paragraphs in Hui) follow from these defined elements. First, the nature of the conduct which will constitute misconduct "defies precise definition because of the range of conduct that it is designed to cover". [34] Secondly, the conduct must have a necessary link to official powers, duties or responsibilities, but need not be an exercise of the powers of the office. The Hong Kong Court of Final Appeal continued: "47 … Yet, not every breach of the law by a person when he or she is a public official is in the course of or in relation to the office held. In Sin Kam Wah v HKSAR the relevant conduct was not in the performance of the police officer's duties, but was found to have such a relationship with his public office as to bring that office into disrepute. In The Queen v Quach [35] Redlich JA, with whom the other members of the Victorian Court of Appeal concurred, approved Professor Finn's statement that 'the kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position' and said: [36] 'In my opinion the relevant misconduct need not occur while the officer is in the course of performing a duty or function of the office. Certain responsibilities of the office will attach to the officer whether or not the officer is acting in the course of that office. Where misconduct does not occur during the performance of a function or duty of the office, the offence may be made out where the misconduct is inconsistent with those responsibilities. It may be connected to a duty already performed or to one yet to be performed or it may relate to the responsibilities of the office in some other way. The misconduct must be incompatible with the proper discharge of the responsibilities of the office so as to amount to a breach of the confidence which the public has placed in the office, thus giving it its public and criminal character.' 48 The characterisation of the misconduct alleged may involve both a descriptive element (of the facts of the transaction) and a value judgment (of its effect). For example, the Australian case of The Queen v Boston concerned a conspiracy to make a corrupt payment to a member of the New South Wales Parliament to induce him to use his official power in an improper way. The criminality of the alleged agreement lay in its tendency to produce a public mischief. [37] Members of the High Court characterised the public mischief. Knox CJ said: [38] 'Payment of money to a member of parliament to induce him to persuade or influence or put pressure on a minister to carry out a particular transaction tends to the public mischief in many ways, irrespective of whether the pressure is to be exercised by conduct inside or outside parliament. It operates as an incentive to the recipient to serve the interest of his paymaster regardless of the public interest, and to use his right to sit and vote in parliament as a means to bring about the result which he is paid to achieve. It impairs his capacity to exercise a disinterested judgment on the merits of the transaction from the point of view of the public interest, and makes him a servant of the person who pays him, instead of a representative of the people.' This, of course, is a reference to a specific transaction. But Isaacs and Rich JJ put the public mischief in wider terms in the following passage: [39] '[The member] has … placed himself in a situation embarrassing and inconsistent with that independence to criticize or censure which he is bound to preserve; he has fastened upon himself golden fetters which preclude his freedom of action. The natural fear of exposure or reproach, or the sense of personal obligation, must inevitably operate to dissuade him from fearlessly pursuing the path of true service….' 49 The public mischief that was the object of the conspiracy in The Queen v Boston did not lie either in the bare financial transaction involved in the payment or in the making by a parliamentarian of representations about government action. It lay in the connection between the two: the representations were to be made in return for the payment. The payment took its character from the purpose for which it was made, and by accepting it the recipient placed himself in a situation incompatible with the responsibilities of his office." 1. In Hui, the payments were made in advance of the officer obtaining a senior public office, and were not made for any more precisely defined purpose, nor having in contemplation any specific act or omission, "but in order to secure an improper inclination and that, in return for the payments, [the officer] agreed to be or remain favourably disposed, in office, to commercial interests associated with the other appellants". [40] The conviction based on such conduct was upheld. 2. It is difficult to see any scope for a "but for" test of causation in such circumstances. It is the creation of a conflict between self-interest and public duty that constitutes the element of misconduct. In Obeid v R (2015) [41] , the self-interest was not created by a payment from a third party, but a family interest in tenants of business premises at Circular Quay of which the landlord was a government body corporate. Representations were made by an agent of Mr Obeid Snr, at his instigation, as to the proper payments from licensees to be made to the tenants. These constituted misconduct by him as a Member of the Legislative Council. 3. Further, in circumstances where the misconduct turns on a perceived conflict between private interest and public duty, the relevance of a causative element has been expressly denied. In Boston, Isaacs and Rich JJ stated: [42] "A public ministerial officer who for private gain prefers one applicant to another is guilty of a crime, even though such preference would be otherwise fully justifiable. And equally, if a member of Parliament agrees for private advantage to act contrary to law in relation to his duty with respect to the public acquisition of land, it is utterly immaterial that the land has not been overvalued or that, apart from the illicit agreement, the same result might, or even would, have followed." 1. In Maitland the "but for" test was derived from two English authorities, the earlier being R v Llewellyn-Jones [43] , the later being R v Speechley [44] . There are, indeed, a number of respects in which English law in this area departs from Australian law. [45] Further, it is unclear on what basis the test of validity of a resolution of the board of a company, or of an administrative law challenge to the validity of an administrative decision, also relied on in Maitland, find their way into the elements of the criminal offence. 2. The "administrative law" cases relied on in Maitland involved local government acquisitions for purposes found to be beyond power. Neither involved a deliberate breach of a duty of confidentiality, nor a breach of a duty of impartiality. To release confidential information in circumstances where you know you should not release it cannot usefully engage a test of "causation". In the case of partiality, both statute and common law principles dictate a different approach. The relevant administrative law principles are those in relation to bias, which encompasses both prejudgment and partiality based upon an interest or association. Both actual bias and a reasonable apprehension of bias disqualify a decision-maker and, if a decision has been made, invalidate the decision. In a statement of principle adopted by Gummow J in IW v City of Perth: [46] "Even though the decision-maker may in fact be scrupulously impartial, the appearance of bias can itself call into question the legitimacy of the decision-making process." 1. Public confidence in public administration justifies such a principle, which cannot be diminished by asking whether the decision-maker would have made the same decision absent the appearance of bias. 2. It was not submitted in the present case that Maitland was clearly wrong and should not be followed and it is not necessary to advert further to the reasoning in that decision. As the respondent submitted, the causation test appears to have no ready operation in relation to a conspiracy which is constituted by an agreement, not by the wilful misconduct the subject of the agreement. And if the prosecution establishes beyond reasonable doubt that the parties agreed that one will wilfully misconduct himself in public office, that is sufficient to satisfy the charge in the indictment. 3. It was telling that Mr Macdonald submitted: [47] "The manner in which the trial judge directed herself as to the proper application of the 'but for' test (see Maitland v R… at [84]) in the context of a conspiracy to commit misconduct in public office was entirely unclear. This is a novel question which is not the subject of any authority. Mr Macdonald contends that the proper approach is to consider the issue from first principles." 1. Three points flow from this proposition. First, given the lengthy history of the criminal liability for misconduct in public office, [48] and the lengthy history of the common law offence of conspiracy, a return to first principles might have suggested that the "but for" test was an aberration. As noted above, Maitland did not involve a conspiracy. Secondly, the following discussion did not explain the role of a "but for" causation test in circumstances where the substantive offence was one of wilful misconduct and the agreement had to extend to the element of wilful misconduct. Thirdly, as noted by the respondent, the trial judge expressly stated that the "but for" test "needs to be satisfied in this case by the Crown proving that each of the accused knew, appreciated, and intended that Mr Macdonald would not have agreed to act in connection with the granting of an EL at Mount Penny favouring their private interests 'but for' that improper or illegitimate purpose". [49] Thus, if the judge applied that understanding of the agreement the complaint fell away. 2. The third limb of common ground 1 must be rejected. Ground 1(4) – conduct not "in connection with" granting of exploration licence at Mount Penny 1. According to Mr Moses Obeid's written submissions, the argument in respect of this element of ground 1 had two aspects, the first of which was: [50] "The first aspect of it is that the words 'in connection with the granting of an exploration licence at Mount Penny' in the indictment were impermissibly vague, such that there cannot be a meeting of the minds in the sense of an agreement to commit an unlawful act." 1. The second aspect was, "that even if there could be a meeting of … minds as to an unlawful act alleged by that phrase, the case fails because the Crown did not allege that Ian Macdonald agreed to do any specific act". This second aspect is in substance a repetition of the first element of ground 1, namely the failure to allege a specific unlawful act to be undertaken pursuant to the agreement. It is not necessary to repeat the reasons for rejecting that complaint. 2. The first aspect apparently involves the same element, being the need for an agreement to commit "an unlawful act", alleging that criterion (a) was impermissibly vague for the purpose of identifying such an act. 3. The selective dissection of the charge is not apt to identify error. For the reasons already indicated, the limbs in paragraphs (a), (b) and (c) of the indictment, together with the chapeau and the final (fifth) element are to be read together. It is undoubtedly necessary that the alleged misconduct be related to some aspect of Mr Macdonald's public office. As has already been noted, the aspect in question was the specific power to grant exploration licences with respect to identified areas and specified mineral resources. The geographical reference to Mount Penny did not identify an area by metes and bounds, but was not required to do so. In the context of the disposition of exploration licences with respect to coal resources, the area was sufficiently defined. The use of the phrase "in connection with" was deliberate, in circumstances where there was no question of the exploration licence being granted to interests associated with either Mr Obeid Snr, Mr Moses Obeid, or other members of the Obeid family. As was stated in Obeid v R (2015) after referring to the elements of the offence of misconduct in public office identified by the Victorian Court of Appeal in Quach: [51] "It will be seen that the words 'or connected to' in the indictment adhere to the second element of the formulation in R v Quach." 1. Numerous other challenges were rejected in Obeid v R (2015), the Court concluding: "141 Turning to Mr Obeid's third submission, what delineates this offence is not the presence or absence of connection between the conduct and the office, but rather the qualitative assessment required by the fifth element …. Far from leaving the boundaries of the offence 'entirely at large', it is a necessary condition that the misconduct have the requisite serious quality, meriting criminal punishment, in light of the nature and importance of the office and the public objects served. It is this requirement, ultimately, which confines the scope of the offence." 1. There was no substance to the separate challenge identified as a fourth element in ground 1. Ground 1(5) – no agreement that conduct serious and meriting criminal punishment 1. This element of ground 1 did not deny the need for or the pleading of what has been identified as the fifth element of the offence of wilful misconduct. Rather it turned on the proposition that the fifth element was a matter for agreement between the parties in the case of a conspiracy. The respondent contended that the appellants' submissions were entirely correct in stating that a person charged with the conspiracy must have "actual knowledge of all the essential facts necessary to constitute the commission of the offence". The respondent continued: [52] "That is, the Crown must prove the accused knew and intended that Macdonald would wilfully misconduct himself in the manner alleged, motivated by an improper purpose, without reasonable excuse or justification. However, the question of whether that misconduct that the conspirators agree Macdonald would engage in, as a matter of characterisation, was serious and meriting criminal punishment, is left to the tribunal of fact. It is not a matter about which the conspirators must agree." 1. With respect, that submission should be accepted. It is consistent with the explanation for the additional requirement (the fifth element) adopted by Mason NPJ in Shum Kwok Sher v HKSAR. [53] That approach is also consistent with Boston, where Knox CJ stated: [54] "It is settled law that an agreement or combination to do an act which tends to produce a public mischief amounts to a criminal conspiracy. In such a case the tendency of the agreement is a conclusion of law and there is no necessity for a finding by the jury of intent." 1. In Rogerson, Brennan and Toohey JJ reasoned to similar effect: [55] "To establish a conspiracy to pervert the course of justice, it is necessary to prove an agreement to do an act which the conspirators either know will have a manifest tendency to pervert the course of justice or which the conspirators intend to have such an effect. In this context, knowledge and intent relate to the acts and circumstances contemplated by the conspirators; the legal complexion of those acts and circumstances is a question of law." 1. It was also consistent with the statement of the common law by the Gibbs Committee Report, [56] set out with apparent approval in the joint reasons in The Queen v LK at [105]: "The mental element necessary to constitute the crime of conspiracy has been said to be the intention to do the unlawful act which was the subject of the agreement, but it seems more accurate to say that what is required is an intention to be a party to an agreement to do an unlawful act and that such an intention must involve also an intention to carry out the unlawful purpose. Such an intention on the part of the alleged conspirator is required notwithstanding that the agreement is to commit a crime which may be committed recklessly or a crime of strict liability. It is not necessary that the parties to the agreement should have known that what was agreed was unlawful. If on the facts known to them what they agreed to do was an unlawful act it is no excuse that they did not know that it was unlawful …." If the parties need not know that the agreed upon acts are unlawful, it must follow that they need not know or believe, let alone agree, that the acts were serious and meriting criminal punishment. 1. That being so, as it was not necessary for Mr Macdonald to believe that his conduct should be characterised at a particular level of moral culpability, nor was it necessary that the conspirators agree that he should conduct himself in a manner which would be characterised as involving that level of moral culpability. To repeat the principles stated earlier, the offence of conspiracy requires a common intention as to the states of mind and proposed acts of those involved in the conspiracy; it does not require agreement as to matters of law. Indeed, were it otherwise, those with no sense of moral culpability would escape conviction and those with a higher level of sensitivity to such matters could be convicted. Ground 1(6) – duties of impartiality "and/or" confidentiality The pleading point 1. The sixth element of common ground 1 differed from the earlier elements in that it did not allege that the indictment did not disclose an offence known to law. Rather, it focused on the aspect of the pleading in par (c) of the description of the acts, namely that Mr Macdonald would act knowingly in breach of his duties and obligations of "impartiality … and/or … confidentiality". The appellants submitted that the alternative form of the pleading allowed that there might only be a breach of a duty of confidentiality and that, in the circumstances of the case, no breach of a duty of confidentiality was established. Extensive written submissions analysed the various aspects of Mr Macdonald's conduct disclosed either in the particulars of misconduct or in the evidence in order to demonstrate that none involved a breach of the duty of confidentiality. 2. As the respondent submitted, this was not really a pleading point. As a matter of pleading, it was sufficient if the acts involved a breach of either duty as either could constitute wilful misconduct. 3. This was not a case of duplicity, nor was it submitted by the appellants to be such. It was, in the language used by Bray CJ in Romeyko v Samuels, [57] not a pleading of separate acts, but rather one act possessing one or more forbidden characteristics. In the latter case "there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics". [58] 4. Three of the particulars of misconduct (1, 2 and 5) alleged only a breach of the duty of impartiality; each of the others alleged a breach of both duties but would have been satisfied if either were established. It follows that there is no need in this context to address the factual circumstances of the various acts of misconduct alleged in order to determine whether there was a breach of a duty of confidentiality. The charge was formulated in permissible terms. Material not confidential 1. As presented in the written submissions and in oral argument, the problem could be illustrated by an analogy. The analogy had apparently been used at the trial, though it was deployed in a more precise form on appeal. [59] The analogy asserted that there could be no conspiracy to commit a robbery with a dangerous weapon, where "dangerous weapon" was defined to include a firearm, but not a knife, if the parties agreed that the robbery would be committed with either a gun or a knife. [60] 2. On that approach, the indictment could be satisfied by establishing only breach of a duty of confidentiality. That duty was equated to the use of a knife (as the dangerous weapon in the analogy), not because there was no duty of confidentiality, but because none of the information supplied or shared by Mr Macdonald was "capable of being found to be in breach of any duty of confidentiality". [61] The assertion that the evidence presented at the trial was not capable of constituting confidential information was then explored over some 75 pages of written submissions: it was not elaborated upon orally. [62] The heavy burden of submitting that the material lacked the capacity to be confidential derived from the formulation of this submission in the context of ground 1. As senior counsel for Mr Moses Obeid submitted early in his oral argument: [63] "The whole purpose with respect of ground 1 is to allege that this is not an indictment that can support the conviction because it does not allege any acts to comprise the predicate offence …." 1. The submission may, however, be disposed of succinctly. First, there was no challenge to the reasoning of the trial judge with respect to the formulation of the duty. Secondly, there was significant evidence supporting a factual finding that the information which Mr Macdonald shared with members of the Obeid family was indeed confidential. 2. Before turning to that material, it should be noted that the bright line sought to be drawn between partiality and disclosure of confidential information involved no clear dichotomy. Partiality refers to the conferring of a favour or benefit on one person for improper reasons. However, what is provided or conferred may not necessarily be money or an available asset, but an opportunity to obtain money or an asset. In that case, the conferral of the opportunity may occur by the provision of information not generally available to others who might have an interest in seeking the benefit. In that situation, which applied to this case, the duties of impartiality and maintaining confidentiality in certain information are closely related and, indeed, interdependent. 3. The trial judge dealt with the duties of confidentiality and impartiality of the Minister over an extended passage of more than 100 paragraphs. [64] This material need not be revisited, as there was no challenge to the finding that the Minister did indeed owe duties of impartiality and confidentiality. These duties were reflected in broad terms in the Ministerial Code of Conduct and elaborated upon by evidence given by former Premier, Mr Morris Iemma. The judge also relied upon oral testimony of the senior public servants and staff within the Minister's office as to the confidential nature of much of the information the subject of the charge. 4. Although it may be doubted that it fell squarely within the terms of ground 1, a challenge was raised to a particular passage in a final paragraph summarising the Minister's duty of confidentiality. The summary included the proposition that the prosecution must: "(i) identify the information that it contends is confidential, including information that may not be confidential per se because it is otherwise publicly available, but information that was or became 'confidential' in the hands of Mr Macdonald (in the office of Minister for Mineral Resources) because of the form in which it was communicated or imparted by him (inclusive of the fact that the information was and remained confidential in the view of the DPI at the time it was allegedly provided by him." 1. It is true that both the syntax and the intended meaning of this passage are obscure. The concept of confidential information should not have been complex and, in its application to the particular circumstances of the trial, created few difficulties. However, two criticisms of the judge's approach should be addressed. 2. The first was that the judge conflated evidence of departmental officers as to their own obligations of confidentiality with those of the Minister. [65] That criticism lacked substance. Officers in the Department did not give evidence as to their opinions as to their own duties of confidentiality in abstract terms, but rather were asked as to whether they considered particular information or documents to be confidential, and why. It was not in dispute that the Minister, like officers in the public service generally, was under a duty of confidentiality. Two principles identified in the Ministerial Code of Conduct stated: [66] "1. Ministers will perform their duties impartially, disinterestingly [sic] and in the best interests of the people of New South Wales. 2. Ministers will be frank and honest in official dealings with their colleagues and will maintain the confidentiality of information committed to their secrecy." 1. At a level of generality, confidentiality was self-evidently important in relation to commercially sensitive information. The real question was whether particular documents enjoyed a level of confidentiality which engaged the duty of the Minister to act appropriately in their dissemination and use. These were questions of fact to be determined in the course of the trial and did not give rise to a pleading issue under ground 1. 2. Returning to the challenged passage in the judgment, little is to be gained by reading it out of context. The curious form of the inclusion of information which "became 'confidential' in the hands of" the Minister may well have been so formulated to encompass material like a map, which contained much information which was in the public domain, but upon which a coal release area had been superimposed. The result of taking that step was to render that copy of the map a confidential document. The fact that the map showed the position of the town of Bylong, clearly a fact in the public domain, did not prevent the map becoming confidential in the circumstances noted. 3. As to the reference to "the form in which it was communicated or imparted by him", although the appellants submitted that the judge had introduced an element of "improper use" into the definition of confidentiality, the better reading of the passage is that the judge was identifying the relevant time for determining the issue of confidentiality. 4. The remainder of the submissions on this topic sought to address whether particular documents relied upon by the prosecution were or were not confidential in the hands of the Minister at the time they were said to have been provided to the Obeids. However, that analysis cannot be deployed in support of ground 1. Suffice it to say that in each case there was express evidence of confidentiality attaching to the document; in several cases, the evidence was given by departmental officers or the staff member handling the documents in the Minister's office. The evidence of these officers was set out by the judge in this section of her judgment. Conclusions: Ground 1 1. With respect to ground 1, the matters raised involved issues of law, which had been raised at trial. There was an appeal as of right, no grant of leave being required. However, for the reasons set out above, ground 1 should be rejected. Ground 3 – absence of Shepherd direction 1. At trial the prosecution accepted that it was an indispensable intermediate fact that Mr Macdonald knew that the Obeid family-owned property near Mount Penny. (It was true that that fact needed to be proved beyond reasonable doubt, but whether it was an "intermediate fact" or an essential element of the conspiracy as pleaded is open to doubt.) The appellants, however, pressed for a further finding and direction identified in Mr Moses Obeid's written submissions in the following terms: [67] "For the purposes of the present appeal, the appellant contends that a miscarriage of justice occurred by failing to give the direction sought by the appellant that it was an essential fact that Moses Obeid knew prior to 9 May 2008 when the conspiracy was said to have been formed that Macdonald knew the Obeid family owned property at Mount Penny. That is, it was an intermediate fact that was indispensable to guilt that Moses Obeid knew the "Shepherd fact" as it was referred to by the trial judge." 1. Ground 3 of the appeal asserted that the trial judge erred in failing to consider the request for, and failing to give, a Shepherd direction as sought by the appellant at trial. As with many labels, the phrase "a Shepherd direction" was embraced by some counsel with more enthusiasm than precision. Indeed, as Mr Walker SC ultimately accepted, the facts as to which directions were sought were better conceived as ultimate facts which were required to be proved beyond reasonable doubt and, even if described as "intermediate" facts, because they formed a necessary link in a chain of reasoning, they were also required to be proved beyond reasonable doubt. The appellants' case was primarily that the evidence did not provide a sufficient basis for the necessary inference. 2. The judgments in Shepherd v The Queen [68] are sometimes invoked as authority for principles which are an extrapolation of the reasoning. Special leave was granted in Shepherd in order to clarify aspects of the reasoning in the earlier decision of Chamberlain v The Queen (No 2). [69] In substance, the misapprehension raised by Chamberlain was that a jury should be directed, in any case based on circumstantial evidence, that it must be satisfied of all the facts beyond reasonable doubt, before they could be relied upon to support a guilty verdict. In Shepherd, Dawson J (with the agreement of Mason CJ, Toohey J and Gaudron J) noted that a case based on circumstantial evidence may involve some intermediate factual conclusions falling between findings of primary fact and an ultimate inference of guilt. Dawson J continued: [70] "For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed. On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable, it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence … - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." 1. That carefully worded statement of principle, reflecting the great diversity within the class of cases turning on circumstantial inference, should not have led in this case to a search for what were described as "Shepherd facts". The purpose of the search was to invite the Court to set aside the verdicts on the basis that the trial judge had not given herself an appropriate warning as to the need to be satisfied beyond reasonable doubt of each necessary element of a circumstantial case. 2. The circumlocution involved in the formulation of this challenge (that Moses Obeid knew that Macdonald knew that …) suggests that any such direction would have been more likely to confuse a jury than to assist it in resolving a circumstantial case. If that were so, the complaint that the judge did not give herself such a warning must fall away. 3. However, the objection is not merely one of the potential to confuse a jury; it is one of substance. The charge spoke of Mr Macdonald doing acts in connection with the grant of an exploration licence at Mount Penny, being acts concerning the interests of the Obeid family. The evidence demonstrated, and it was an underlying contextual assumption at trial, that the only interests of the Obeid family which would be affected by the grant of an exploration licence at Mount Penny arose from the family's interest in Cherrydale Park. The basis for the charge was, therefore, the congruence of the area over which the exploration licence might be granted and the proprietary interests of the Obeids. It would not be possible for Mr Macdonald to take steps towards the granting of an exploration licence at Mount Penny in a way which would benefit the Obeid family unless he was aware that they owned property in the area. If those were the acts as to which there was agreement, it must follow that all three of the conspirators shared the common knowledge that the Obeid family had an interest in land at Mount Penny. That common knowledge was an essential substratum of the agreement. If Mr Moses Obeid did not know or believe that Mr Macdonald knew or believed that the Obeids had a property at Mount Penny, he could not be a co-conspirator in the terms of the indictment. The essential knowledge of each as to such matters was a necessary condition of any finding of guilt based on the common agreement. If there was a reasonably available inference that Moses Obeid did not believe that Mr Macdonald knew that the Obeid family had interests in property at Mount Penny, he would be entitled to an acquittal. No special direction was needed in that respect. 4. It follows that ground 3, to the extent that it was not expressly abandoned by senior counsel at the hearing of the appeal, is without substance and must be rejected. Ground 4 – failure by prosecution to call evidence 1. There was a degree of ambiguity as to the terms of ground 4. In Mr Moses Obeid's written submissions, the ground was stated as involving a failure by the trial judge "to consider whether the Crown's failure to call important evidence meant that her Honour should have entertained a reasonable doubt about whether the Crown had established the case". [71] As appeared from the next paragraph in the submissions, the reference to a failure to "call important evidence" was intended to identify a failure to call "a witness who might have been expected to be called and to give evidence on a matter". [72] Reliance was placed on statements in the High Court in RPS v The Queen [73] and Mahmood v State of Western Australia. [74] So expressed, the ground appeared to invoke the third limb of s 6(1) of the Criminal Appeal Act, that "on any other ground whatsoever there was a miscarriage of justice". 2. The written submissions identified the approach of the trial judge as encapsulated in the following paragraph of the judgment: "2030 Having already found the existence of the conspiracy and the participation in it of each of the accused proved beyond reasonable doubt and having regard to all of the evidence which was probative of those facts, it is clear beyond question, to my mind, that none of the witnesses in respect of whom a Jones v Dunkel direction was sought could have given evidence which was capable of raising a reasonable doubt about the guilt of the accused." 1. As to that conclusion, the submissions stated that the reasoning was "speculative, circular and contrary to authority". It was submitted that the "relevant question is to be asked prior to drawing the ultimate inference; it is not a question to be asked, and has no utility if asked, after having found guilt established". Finally, it was submitted that: [75] "There is also no basis to infer that the witnesses not called were not capable of giving evidence which was capable of raising a reasonable doubt." 1. There are a number of difficulties underlying these submissions. The first is that the trial judge addressed the issue by reference to submissions from the appellants that she give herself a Jones v Dunkel [76] direction in relation to various witnesses. The judge noted that counsel for Mr Macdonald had sought such a direction with respect to Craig Munnings, who was Mr Macdonald's departmental liaison officer. Further, counsel for Mr Moses Obeid had sought such directions in relation to 17 categories of witnesses, including members of the Obeid family and their associates and their chartered accountant. [77] 2. Having set out the list of individuals who were not called, the judge then noted that she had indicated earlier in her reasons that she would "deal with the direction sought by the accused in respect of those individuals when considering whether the Crown has proved its case". [78] She identified that approach as being "in accordance with [Mahmood]". 3. The earlier passage appears in a footnote to [664], in the course of dealing with the topic of "staff structures within the Minister's office and the DPI". After noting that neither Mr Munnings nor any ministerial staff member other than Mr Gibson had given evidence in the trial, the judge set out in a footnote the passages in the transcript where Jones v Dunkel directions had been sought in relation to Mr Munnings and in relation to other witnesses. The full list of witnesses was set out in the footnote. The judge concluded the lengthy footnote stating: "I will deal with that aspect of the accused's case when considering whether the Crown has proved its case. This approach is in accordance with [Mahmood]." 1. Not only did the judge refer to the submissions twice, but she addressed them and made rulings when she said she would. Clearly she did not overlook the requests. 2. Two further passages in the judge's reasoning revealed the basis for her conclusion: "2023 Mr Neil submitted that the Crown's failure to call 'numerous significant and important witnesses' whose evidence would have covered a 'range of important topics' leaves critical gaps in the Crown case to the effect that there must be a reasonable doubt as to the guilt of the accused … 2029 As noted by the Crown in closing submissions, Mahmood sets out the test for whether a Jones v Dunkel direction is appropriate in a criminal trial: [W]here a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused." 1. Although the judge declined to give herself a Jones v Dunkel direction, [79] it is significant that the appellants framed their request in those terms. The first and self-evident response to the present ground of appeal is that the judge did not fail to consider the submissions put to her: rather, she identified the submissions of both parties and reached a conclusion, albeit not the one sought by the appellants. It cannot be said that a miscarriage resulted from a failure to consider the issue. 2. Secondly, it is important to bear in mind the nature of a Jones v Dunkel direction. It would be in terms that the jury could infer from the failure of the prosecutor to call particular witnesses, without a sufficient explanation for their absence, that the evidence they might have given would not have assisted the prosecution case. [80] That is consistent with the submission made by counsel for Mr Moses Obeid that the absence of that evidence left "critical gaps in the Crown case". The judge's conclusion, criticised on the appeal, was a response to that submission: she was satisfied that there were no such gaps which led her to find that the prosecution had not established its case. 3. The manner in which the complaint was raised on appeal, namely that there was no basis to infer that the evidence of the missing witnesses would not have raised a reasonable doubt, is not consistent with the limited assistance to be obtained from a Jones v Dunkel direction. It involves a speculative assumption that the missing evidence could have raised a reasonable doubt. Although the trial judge used that language in her final concluding paragraph set out above, that was an unnecessary finding and did not correctly reflect the proper basis of the request for a Jones v Dunkel direction. The passage did, however, correctly identify the earlier finding, inconsistent with the possible existence of gaps in the prosecution case. 4. The appellant's test, requiring an assumption that the witnesses not called were capable of giving evidence which was capable of raising a reasonable doubt, is not supported by the authorities relied upon. 5. First, there is the passage in RPS: [81] "28 In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations. 29. If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor 'has the responsibility of ensuring that the Crown case is presented with fairness to the accused' and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused." 1. The other statement of principle relied upon by the appellants was taken from the joint reasons of Gleeson CJ, Gummow, Kirby and Kiefel JJ in Mahmood to the following effect: "27 It was neither necessary nor appropriate for the trial judge to direct the jury that an inference adverse to the case for the prosecution could be drawn because the presence of blood in the appellant's trouser pocket had not been the subject of evidence by the prosecution's witnesses. In the joint reasons in RPS v The Queen it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused." 1. The question whether the judge's conclusion that, on the evidence, the prosecution had proved its case beyond reasonable doubt, was open must be assessed under ground 2, asserting that the verdicts were unreasonable or such that they could not be supported on the evidence. 2. The conclusion reached by the trial judge with respect to appropriate directions was not legally flawed and did not give rise to a miscarriage of justice for any other reason. Three further factors support that conclusion. 3. First, the prosecution is not required to call every person who might conceivably give evidence relevant to some issue at trial. The trial in this matter ran for 77 days before a judge: it may be assumed that it would have taken considerably longer before a jury. Some 38 witnesses were called. A prosecutor should properly be alert to the fact that lengthy trials impose heavy burdens on all those involved, and on the administration of justice. The prosecutor has a largely unfettered discretion as to who will be called and what evidence will be tendered. If, in so doing, he or she fails to establish some element of an offence beyond reasonable doubt, the result will be an acquittal. That is a judgment to be made by the prosecutor, subject to one qualification. 4. The qualification is that the prosecutor is obliged to call a witness if it is necessary to ensure the fairness of the trial. [82] As stated by Dawson J in Whitehorn: "In Richardson v. The Queen … this Court pointed out that although the choice made by a Crown Prosecutor of the witnesses to be called in support of the Crown case may be said to involve the exercise of a discretion, that means no more than that he is called upon to make a personal judgment bearing in mind the responsibilities of his office. It is not a discretion which he can be compelled to exercise in a particular manner, although his failure to call witnesses who ought to be called may constitute misconduct and may result in a miscarriage of justice which will constitute a ground for setting aside a conviction and granting a new trial. It is in this context that it is possible to speak of a Crown Prosecutor being bound, or under a duty, to call all available material witnesses. It is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor. Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court." 1. That principle was developed at a time prior to the current procedures for pre-trial disclosure of the prosecution brief. In circumstances where full disclosure is made, as a practical matter an accused will be able to identify witnesses he or she wishes the prosecution to call if they are not on the list of those to be called. 2. The respondent noted that in fact a list of witnesses had been furnished before the trial and updated during the trial. (Reference was made to transcript pp 4, 111, 201, 652, 1026, 1217, 1920, 3285 and MFI 1.) The respondent also noted that Mr Macdonald had specifically requested the addition of two witnesses, who had been called. Had any other request been made and rejected, it may be assumed that the accused would have raised the issue with the trial judge. That did not happen. 3. There is merit in giving weight to this contextual material in determining whether there has been a miscarriage of justice. Although there may be potential risks for an accused in calling a witness in the defence case, there are also risks in having the prosecutor call the witness. If the witness turns out to be "unfavourable" the prosecutor may obtain leave to cross-examine the witness including as to matters relevant to the witness's credibility: Evidence Act 1995 (NSW), s 38. [83] The results may be highly damaging to the defence, especially if the prosecutor has a prior inconsistent statement from the witness. 4. In the present case, with one exception, the appellants did not request the prosecutor to call any witnesses, and in particular the lengthy list of witnesses whose absence is now said to have given rise to a miscarriage of justice. (The fact that the Obeids did not themselves call members of their own family correctly attracted no adverse comment or Jones v Dunkel direction.) 5. The list of witnesses not called that was apparently put to the trial judge was not identical with the list relied upon on appeal. The reasons for the variations were not explained. One witness common to both lists was Mr Munnings. He had been working in Mr Macdonald's office at the time of the events in question. If Mr Macdonald did not wish to call him, but thought that he might have relevant evidence to give, it was at all stages open to him to invite the prosecutor to call Mr Munnings. It is not for this Court to speculate as to why that did not happen, in the absence of evidence. 6. The respondent noted the absence of demonstration of miscarriage, submitting that it was incumbent on the appellants to identify both an error, and one which had the capacity for practical injustice, so that there was a "real chance" that it had affected the verdict of the judge. [84] That was not done. It is true that there were lengthy written submissions identifying particular findings by the trial judge as to events about which particular witnesses might have been able to give evidence, but without any basis for drawing inferences as to what they might have said, if anything, the submissions fell well short of demonstrating practical injustice. 7. Ground 4 should be rejected. Specific grounds – Edward Obeid Identifying further grounds 1. Ground 2, as articulated in the grounds of appeal filed for Mr Obeid Snr, involved two limbs. The second, par (b), was a reflection of common ground 5, noting that the verdict was unreasonable or unable to be supported by the evidence. However, the first limb, par (a) was in the following terms: "The trial judge erred in law in failing as an aspect of her duty to give reasons and to address central factual matters in contest why such reasonable hypotheses consistent with innocence advanced on behalf of the appellant has [sic] been excluded." 1. The written submissions identified the hypotheses as including: [85] "(a) that any communication between the parties about coal and plans for the relevant area was, as at 9 May 2008, preliminary to a meeting of the minds in respect of conduct Macdonald might undertake concerning the grant, (b) given that Macdonald was simply making enquiries as to coal reserves in the area in early May this tended to suggest he could not have agreed by this time any means by which his supposed misconduct might be exercised in respect of "the grant", (c) an agreement which did not resolve that Macdonald would act partially raised a reasonable doubt as to the necessary mens rea, (d) the indeterminate nature of the agreement raised a reasonable doubt including as to the fifth element as at 9 May 2008 and, (e) because of the indeterminate character of the supposed "advantage" to the Obeids as at early May the possibility remained that it was insignificant measured against Macdonald's perception of the likely benefit of the people of NSW by doing acts in connection with the release of the area." 1. The written submissions alleged that these were "substantive and articulated arguments", but no detail was given as to where and in what terms they were articulated during the trial. In any event, they are best dealt with as particulars of the unreasonable verdict ground and will be considered in that context. 2. Grounds 6, 7 and 8 were identified as additional grounds and were the same additional grounds relied on by Mr Macdonald. Accordingly, they will be dealt with in turn by reference to the submissions of both appellants. Ground 6 – admissions by co-accused 1. Ground 6, as formulated by Mr Obeid Snr, read as follows: "6 The trial judge erred in law in proceedings [sic] on the basis that section 87(1)(c) of the Evidence Act 1995 (NSW) deemed various 'representations' on the part of Appellant Macdonald and Appellant Moses Obeid to be 'admissions' on the part of the Appellant and in relying upon as much to provide the Appellant's guilt." 1. There are three elements to this ground, namely (i) identification of the representations, (ii) the manner in which s 87(1)(c) of the Evidence Act was deployed and (iiii) the consequential findings. 2. The relevant representations of both Mr Macdonald and Mr Moses Obeid involved their conduct in taking steps in furtherance of the conspiracy, the subject of the charge. [86] If reliance on that material was legitimate as giving rise to implied representations by Mr Macdonald and Mr Moses Obeid which could be attributed as made with the authority of Mr Obeid Snr, and therefore as admissions by him, the detail of the representations can be considered in addressing the consequences of that approach. 3. The substance of the ground was directed to the alleged error on the part of the trial judge in her deployment of s 87(1)(c) of the Evidence Act as a basis for using the conduct of the two men as admissions by the third. Legal principles 1. Before turning to the specific terms of s 87(1)(c) of the Evidence Act, it is convenient to identify the relevant legal principles. 2. First, evidence by A as to what was said by a party against his or her own interest is hearsay. The rule excluding hearsay evidence does not, however, apply to evidence of an admission: Evidence Act, s 81(1). However, generally, an admission by B as to what C may have done is not admissible against C. That rule is subject to an exception where B has authority to speak on behalf of C as to the matter, the subject of the admission. Under the general law, an analogous authority was presumed with respect to assertions made by one co-conspirator implicating another. That general law principle was explained in the judgment of the High Court in Ahern v The Queen. [87] The passage commenced with a statement by Isaacs J in the Coal-Vend Case: [88] "Two things must be carefully kept distinct, viz, the fact of combination, and acts done in pursuance of the combination. There is a tendency to confuse the two, because in many instances acts of individual defendants may be regarded as evidence of the first as well as of the second. But it is an error to say that acts of one defendant, however numerous, and however pointedly in furtherance of the prohibited purpose, are necessarily admissible as overt acts of offence against a co-defendant charged with conspiring with the first. They are not so admissible unless the two defendants are shown to be associated for that purpose, so as to make the purpose common to both. Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge." 1. In Ahern, the Court continued: "However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would excluded as hearsay or its equivalent were it not admissible upon some other basis. That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: …. [89] Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime." 1. Relevantly for the operation of s 87(1)(c) of the Evidence Act, Ahern (decided some seven years before the enactment of the Evidence Act) continued: "The implied authority on the part of one conspirator to act or speak on behalf of another will only arise if the latter is part of the combination. Evidence of the acts or declarations of the former may, however, be led to prove that very fact. That is where the dilemma lies in cases of conspiracy because, to assume the participation of the latter in order to admit the evidence on the basis of implied authority is to assume the very fact which is sought to be proved by that evidence. If there were no prerequisite to the admission of such evidence 'hearsay would lift itself by its own bootstraps to the level of competent evidence'…. [90] … In accordance with accepted principle, such evidence was held to be admissible 'only if there is proof aliunde that is he connected with the conspiracy. [91] " 1. The apparent purpose of two provisions in the Evidence Act is to overcome the "bootstraps" problem. Thus, s 57 states: 57 Provisional relevance (1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant— (a) if it is reasonably open to make that finding, or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. (2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed. 1. Sections 55-57 appear in Pt 3.1 of the Evidence Act under the heading "Relevance". Although s 57(2) is directed specifically to the existence of an unlawful conspiracy, the two provisions should be read together, so that the use the court may make of the evidence itself in determining whether the common purpose existed, must be directed towards whether it is reasonably open to make that finding. Secondly, as recorded in s 56, whether evidence is or is not relevant is a determinant of admissibility (subject to other provisions of the Act). Accordingly, s 57 is directed to a finding of admissibility, not to the ultimate use which may be made of the evidence, although if admissible for the purpose of establishing a common purpose, it must be capable of use by the trier of fact for that purpose. Further, s 57 is not directed to the admissibility of hearsay evidence, but will apply to any act undertaken in the course of the conspiracy. 2. Section 87 appears in Pt 3.4, under the heading "Admissions". Part 3.4 includes s 81 which provides that the hearsay rule does not apply to evidence of an admission. Section 87(1) is as follows: 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that— (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. 1. As explained by Simpson AJA in R v Dolding, [92] s 87 is directed to the question, "[s]hould a representation made by a third party be admitted '[f]or the purpose of determining whether a previous representation made by a person' … is to be taken to be an admission by a party 'to the substantive proceedings'". [93] That slightly awkward construction sought to explain that s 87(1) was directed to the question of admissibility and was not directed to the substantive proceeding. It is directed to a decision to permit the use of the representation in the trial as evidence against a party, not being the person making the representation. This reading caused Simpson AJA to doubt the accuracy of statements made in two other decisions of this Court, namely R v Macraild [94] and Elomar v R. [95] 2. It is true that, as with most rules of evidence s 87 is directed to admissibility and is to be applied by the judicial gatekeeper, not by the ultimate fact-finder, be it judge or jury. However, an apparent purpose of the two provisions set out above is to avoid the need to establish the existence of the common purpose by evidence extraneous to the representation, the admissibility of which is in dispute. If the general law principle required that, there is nothing in the language of s 87(1)(c) to suggest that the general law principle is being preserved in that respect. [96] 3. The statement in Macraild (set out in Dolding at [24]) that "section 87 reproduces the common law relating to representations made by co-conspirators", referring to Ahern and Tripodi, should also be treated with caution. Consistently with the submission made on behalf of Mr Obeid Snr, these provisions do not so much "reproduce" (in the sense of give effect to) the common law principle as assume the existence of that principle but remove the requirement that there must be evidence extraneous to the evidence in question to establish the common purpose. 4. The operation of ss 57(2) and 87(1)(c) proposed here is consistent with the expressed intention of the Australian Law Reform Commission in its report supporting the introduction of such a provision. [97] In dealing with provisional relevance, the Commission noted that "[e]vidence of statements made by an alleged conspirator A and tendered as evidence of acts done pursuant to the alleged conspiracy will continue to be admissible against A and against alleged conspirator B". Noting that the relevance of the act of A to the case against B will depend upon "a finding that there was a common purpose", the Commission noted that "the proposal provides that, as at present, the evidence of A's acts may be considered with evidence of B's acts and collateral circumstances to prove the common design". That statement was supported by a passage from the Coal-Vend Case at 401, which appears to pick up the following statement from Russell on Crimes: [98] "It is not necessary to prove the existence of a conspiracy before giving in evidence of the acts of the alleged conspirators, and isolated acts may be proved as steps by which the conspiracy itself may be established." 1. Indeed, Dolding noted that s 87 imposed an undemanding test, namely that it was "reasonably open to find" both that a "representation" had been made and that it had been made "in furtherance of the common purpose". With respect to the first issue, the judge, after noting the finding of the trial judge that the representations were in effect devoid of factual content, concluded: "51 In my opinion, that was not correct. The statements, in the light of the accompanying conduct, were capable of interpretation by a jury as containing assertions of fact such as to constitute representations." 1. In dealing with the second question, the judge considered the statements made by Ms Maniskas to RS, for whom she was allegedly purchasing the drugs from the accused, in the context of that separate evidence. The common purpose as between Ms Maniskas (the maker of the statements) and the accused could not be derived from the content of the statements because they contained no reference to the accused. Insofar as the conduct of Mr Maitland and Mr Moses Obeid contained implied representations, the same is true in the present case. Accordingly, in such circumstances, it is necessary as a practical matter that the evidence be extraneous to the representations. 2. Further, although these provisions govern a finding as to admissibility, they must have operation with respect to the substantive exercise to be undertaken by the trier of facts, be it the judge or a jury. In other words, if evidence of a representation can be admitted because it was reasonably open to the judge to find that the representation was made in furtherance of a common purpose, it must be open to the fact finder to determine whether or not it was so made. Similarly, a finding that it is reasonably open to find that the evidence itself can be used in determining whether the common purpose existed (pursuant to s 57(2)), must mean that the trier of fact can make a finding in this respect. These provisions are in common form with statements of general rule allowing the admissibility of evidence. The fact that evidence is said to be relevant if it were accepted, because it could "rationally affect… the assessment of the probability of the existence of a fact in issue" (s 55(1)) does not mean that the jury or judge deciding the fact in issue need necessarily accept that it has that affect. It is true that the language of the Evidence Act is not consistent in this regard: the qualification in s 55 (if it were accepted) will apply to evidence generally; similarly, the fact that a statement has been admitted and accepted by the jury as having been made, does not mean that the jury are bound to give it any particular weight. So it is with evidence of a common purpose. The representation of the co-conspirator may be used to support a finding of the existence of the common purpose, but whether or not it is so used is entirely a matter for the trier of fact. 3. That conclusion gave rise to a second limb to ground 6, namely that the trial judge did not explain how in fact she used the evidence, having accepted that it could be used to support a common purpose. 4. That is not to deny, as noted in Dolding and accepted in Higgins v R [99] there may be other reasons why the evidence should not be admitted in the substantive proceeding. That, of course, is true of any evidence which survives one basis of exclusion. Failure to explain deployment at trial 1. Whether in fact the judge failed to explain the basis upon which the conduct of Mr Macdonald and Mr Moses Obeid was relied upon to demonstrate the involvement of Mr Obeid Snr in the conspiracy requires reference to a number of passages in the judgment. 2. The submissions for Mr Obeid Snr noted that the issue of admissions had been agitated on a voir dire and rulings made in the course of the trial. [100] However, while that judgment referred in passing to s 87(1)(c) it was expressly noted that s 87(1)(c) was not relied upon by the prosecution in relation to alleged admissions by Edward and Moses Obeid in interviews conducted with journalists "three years after the conspiracy had been fully executed" so that the representations could not be said to be "in furtherance of the common purpose comprehended by the conspiracy during its currency". [101] 3. In the final judgment, the prosecution submissions as to the evidence relied upon to prove the participation of Mr Obeid Snr in the conspiracy was set out at [335]; particulars which were not relied upon in closing submissions were listed at [337]. It is not necessary for present purposes to identify each passage in the judge's reasons which set out evidence inculpating Mr Obeid Snr: that exercise has been/will be undertaken in considering ground 2. The judge returned to consider whether a conspiracy had been established beyond reasonable doubt at [1822]-[1881]. At [1879]-[1881] the judge expressed her satisfaction beyond reasonable doubt that the acts of misconduct committed by Mr Macdonald were committed in furtherance of the specific conspiracy alleged. She was also satisfied beyond reasonable doubt that the conspiracy was in existence when the first act of misconduct was committed by Mr Macdonald on 9 May 2008. 4. The judge then turned to the financial motives attributed by the prosecutor to Mr Obeid Snr and Mr Moses Obeid. That element, the judge observed, was of relevance in relation to the involvement in the conspiracy of the Obeids, rather than Mr Macdonald: at [1896]. However, before addressing that issue, the judge turned to consider evidence that both Mr Obeid Snr and Mr Moses Obeid "sought to conceal their participation in the conspiracy by taking steps to distance their family's ownership of Cherrydale Park, each of them making concerted efforts in achieving that objective in 2008 and 2009": at [1898]. That passage concluded with the following statement: "1950 I am also satisfied that the evidence establishes that the steps taken to change the ownership of Cherrydale Park were taken with the involvement of both Edward Obeid and Moses Obeid. Those steps are a source of evidence of their participation in the conspiracy alleged, as steps taken coordinate with the acquisition of the adjacent properties by their friends or associates." 1. The judge then turned to determine whether Mr Moses Obeid's participation in the conspiracy had been proved beyond reasonable doubt, and addressed the question without considering material which might fall within s 87(1)(c) of the Evidence Act. On that limited basis, the judge stated: "1955 In finding Moses Obeid's knowing participation in the conspiracy proved beyond reasonable doubt, I have relied principally, but not exclusively, on what I have found were his direct dealings with Mr Macdonald in July and August 2008, as he sought to secure a mining deal with a mining company that would best position his family to take advantage of their ownership and/or control of the three rural properties within the Mount Penny Coal Release Area, pending the ultimate release of that area for coal exploration at the conclusion of the EOI process for the granting of an EL at Mount Penny." 1. Noting that the participation of Mr Moses Obeid had been proved "in a multiplicity of ways" the judge stated: "1958 … That evidence includes, but is not limited to, the steps he took to implement and exploit the value or benefit of the successive acts of misconduct Mr Macdonald committed in furtherance of the conspiracy, and the steps he took to implement and exploit his receipt of other valuable information disseminated by Mr Macdonald during the currency of the conspiracy, information which he either received directly from Mr Macdonald or via members of his family, including his father, concerning the creation of the Mount Penny Coal Release Area and its inclusion in the EOI process for the grant of an EL." The judge then identified 14 categories of conduct relied upon for that finding. 1. Finally, with respect to Mr Moses Obeid, the judge turned to 10 lies, which she had accepted were capable of demonstrating consciousness of guilt in Macdonald (No 15). [102] She expressed her satisfaction that each of the 10 lies was "a deliberate misstatement of the truth", and that each was told "in an attempt by him to conceal both the existence of the conspiracy" and his active participation in it. The lies relied upon were identified at [1970]-[1978]. 2. At [1981], the judge turned to the question of participation by Mr Obeid Snr in the conspiracy. Again, this was not the beginning of the analysis. The reasoning commenced: "1981 In finding the first, second, fourth, seventh and eighth acts of misconduct established (in the course of which I was ultimately satisfied beyond reasonable doubt of the existence of the conspiracy), I made a number of factual findings which are probative of the question whether the Crown has proved beyond reasonable doubt that Edward Obeid also intentionally entered into the conspiracy at the time that I am satisfied it was forged, that is, prior to 9 May 2008." 1. The judge then summarised some of the findings. The various factors relied upon by the trial judge are addressed in considering common ground 2. None was treated as ultimately determinative. The judge then turned to the admissions at [1993]-[1997]. The judge then turned to consider the operation of the co-conspirators rule, noting that she had not found it necessary to rely upon such material with respect to Mr Macdonald or Mr Moses Obeid: at [1998]-[1999]. The judge then stated: "2000 However, given that the evidence capable of establishing Edward Obeid's participation in the conspiracy reflects (for whatever reason) a less overt role than the role played by Moses Obeid and, for that reason, the Crown seeks to prove Edward Obeid's participation largely, although not exclusively, as a matter of inference from the combined force of all the evidence adduced in the Crown case in the trial in the way that I have described, to the extent that gives rise, or might give rise to a reasonable doubt as to his participation in the conspiracy, and in that way a reasonable doubt as to his guilt, I propose to give consideration to the operation of the inclusionary rule in s 87(1)(c) of the Evidence Act as a further source of evidence in proof of Edward Obeid's participation." 1. Contrary to the submissions for the appellant, the judge was not, at that stage, making a finding that the prosecution case would not establish participation by Mr Obeid Snr absent some further material, but rather, as it happened in earlier passages, identified it as what might potentially be a critical step in the process of determining his involvement. 2. After setting out the terms of s 87(1)(c), the judge noted: "2002 The Crown submitted that in the context of this trial, s 87(1)(c) provides a statutory basis for the operation of the co-conspirators rule at common law, a rule which provides that the acts and declarations of an individual accused are an available source of evidence of the participation of others alleged to be complicit with the accused in the conspiracy alleged, where there is reasonable independent evidence of that accused's participation in the conspiracy. 2003 That rule is embodied in s 87(1)(c) of the Evidence Act by providing that there must be reasonable evidence, extraneous to the representations sought to be relied upon as an admission by a party, of both the existence of a common purpose and that the 'representation' sought to be admitted was made in furtherance of that common purpose." 1. Although the language used in these paragraphs reflected the language used in cases dealing with the provision which were binding on the trial judge, for the reasons stated above, it may be unhelpful to describe s 87(1)(c) as providing "a statutory basis for the operation of the co-conspirators rule at common law" and as providing that "there must be reasonable evidence, extraneous to the representations…, of both the existence of a common purpose" and that the representation was "made in furtherance of that common purpose". Nevertheless, the approach adopted was, if anything, unduly favourable to the accused. Further, despite the statements of counsel in this Court that submissions below had been directed to the application of the co-conspirators rule rather than the operation of s 87(1)(c), it is clear that the rule itself was correctly identified in the statement of the prosecution submission, at [2002]. 2. On this assumption that extraneous evidence was required of Mr Obeid Snr's participation in the conspiracy, the judge was satisfied that "[f]or the reasons already given in considering the evidence probative of Edward Obeid's participation" she rejected the submission: at [2007]. Whether the rule was properly said to be "embodied in s 87(1)(c)" as a relevant authority at the time held, or whether the rule was an independent aspect of the general law, it is clear that counsel's submissions were carefully and directly addressed. In short, the finding that there was a conspiracy involving Mr Macdonald and Mr Moses Obeid had already been explained and that the acts undertaken by each were undertaken in the furtherance of that conspiracy. With respect to the challenges to the engagement of the rule, the judge concluded: "2015 In the result, I am satisfied, and direct myself accordingly, that there is reasonable evidence that Edward Obeid (and Mr Macdonald and Moses Obeid) were parties to the conspiracy alleged (that is, put simply, an agreement that Mr Macdonald would commit wilful acts of misconduct in connection with the granting of an EL at Mount Penny for the improper purposes alleged) and that there is also reasonable evidence that each of Moses Obeid and Mr Macdonald made 'representations' in furtherance of achieving that common objective." 1. In the following two paragraphs, the representations made by Mr Macdonald and Mr Moses Obeid respectively were identified. They involved the conduct undertaken in furtherance of the conspiracy. 2. As has been noted, counsel for Mr Obeid Snr submitted forcefully that, having identified the "representations" constituted by the conduct of the co-conspirators in furtherance of the conspiracy, the judge did not explain how she relied upon those "representations". 3. In our view, there is substance to that complaint. However, what the judge's concluding paragraphs revealed was that she relied upon the conduct as conduct which would not have been undertaken absent participation by Mr Obeid Snr in the conspiracy. The problem for the appellant is that such reasoning is entirely open: reliance upon s 87(1)(c) was in the circumstances both unnecessary and misconceived, because there was no reliance on an admission admissible by way of an exception to the hearsay rule. The error is, however, entirely immaterial: it gives rise to no possibility that, for this reason, Mr Obeid Snr lost an opportunity for acquittal. 4. The reasoning of the judge in this respect should be set out in full: "2018 In ultimately reasoning to the conclusion that Edward Obeid's participation in the conspiracy is proved beyond reasonable doubt (both on the basis of the evidence I have reviewed in proof of that fact and upon application of the co-conspirators rule in s 87(1)(c) of the Evidence Act), I am unable to countenance as a reasonable or rational possibility that the conspiracy would have been forged between Moses Obeid and Mr Macdonald, and progressively executed by each of them from May 2008 through to and including January 2009, so as to strategically position the Obeid family to seek to exploit the monetary value of the coal underlying Cherrydale Park and to the detriment of its appointment as a fine piece of agricultural land purchased at considerable expense by the family as a rural retreat, without Edward Obeid's intentional participation with them in an agreement of the scope and object alleged. 2019 I also accept the Crown's submission that it is implausible that Mr Macdonald would make what I was satisfied was a 'strong suggestion' that the DPI designate a new coal release area in the precise location where he knew that Edward Obeid, a friend and Parliamentary colleague, had recently acquired a significant rural property, without Edward Obeid's knowledge and express approval, and without a preparedness on Edward Obeid's part to sacrifice the beauty and amenity of the property in pursuit of the profit on its sale to a mining company. 2020 I am also unable to countenance as a reasonable or rational possibility that the mining deal, so vigorously pursued by Moses Obeid from July 2008 (enabled by Mr Macdonald's provision of confidential information on multiple occasions at that time), would have occurred at the pace at which it did, at the presumed expense that it entailed and with the potential commercial outcome of those arrangements that were settled, first between Voope P/L and Monaro Mining NL within the currency of the conspiracy, and then between Buffalo Resources P/L and Cascade Coal P/L after the conspiracy had been executed, without Edward Obeid being kept informed as to the progress of those arrangements as they were unfolding or, I am also prepared to infer, without with his active input and express sanction." 1. For these reasons, ground 6 must be rejected. Ground 7 – use of inadmissible evidence 1. Ground 7 as pleaded by Mr Obeid Snr and relied upon by Mr Macdonald had two limbs. However, the second limb was, in effect, a restatement of grounds 2 and 5 and was not pressed at the hearing of the appeal. Ground 7 as pressed, read as follows: "7 The trial judge erred in the conclusion that there was reasonable evidence of the appellant's participation in the conspiracy by — (a) relying upon evidence which was either not admitted for the purpose or not available for the use ascribed to it." 1. It should be observed that, if the analysis set out above of the nature of the case is correct, the judge did not rely upon the conduct discussed in relation to ground 6 as giving rise to any particular representation, but rather as conduct in furtherance of the conspiracy, and therefore as evidence of the existence of the conspiracy. Accordingly, insofar as ground 7, by using the phrase "reasonable evidence of the appellant's participation in the conspiracy", was directed to the question of admissibility, only s 57(2) was engaged, which expressly states that the court may use the evidence in determining whether the common purpose existed. However, the particular in (a) suggests that the challenge was not to admissibility, but rather to the conclusion reached by the trial judge as to Mr Obeid Snr's involvement in the conspiracy. The written submissions directed to the reasoning of the trial judge supported that understanding, as did the oral argument on the appeal. Accordingly, the submission that the judge made findings which were "not open" on the evidence had the same character as ground 5, to the extent that particular findings were identified, and as to ground 2, to the extent that the finding in issue was simply Mr Obeid Snr's involvement in the conspiracy, which was an ultimate fact in issue. Nevertheless, it is convenient to deal with the submissions made in support of ground 7. 2. The written submissions commenced with the proposition that there were "five facts or matters underpinning her Honour's conclusion of reasonable participation". [103] This should be understood as an assertion that there were five findings of fact which underpinned the ultimate conclusion that the appellant was a participant in the conspiracy. As it was not submitted that any particular matter or fact was essential to that conclusion, it was necessary for the appellant to establish that a fact was not open to the primary judge. The passage in issue involved 17 paragraphs of the judgment under the heading "Is Edward Obeid's participation in the conspiracy proved beyond reasonable doubt?", but not reaching a conclusion on that question until the further consideration (discussed under ground 6) which relied upon the nature of the conduct of the other conspirators as demonstrating beyond reasonable doubt that such conduct would not have occurred without the active participation of Mr Obeid Snr. It followed that none of the "five matters" identified in the written submissions were determinative of that outcome; further, each was expressed in guarded terms. 3. The first matter identified in the submissions was to be found in the following passage in the judgment, which should be set out in full (with the finding complained of in italics): "1981 In finding the first, second, fourth, seventh and eighth acts of misconduct established (in the course of which I was ultimately satisfied beyond reasonable doubt of the existence of the conspiracy), I made a number of factual findings which are probative of the question whether the Crown has proved beyond reasonable doubt that Edward Obeid also intentionally entered into the conspiracy at the time that I am satisfied it was forged, that is, prior to 9 May 2008. Those findings include, for the reasons already given, that the strong probabilities favour a finding that it was Edward Obeid who asked Mr Macdonald for the information the subject of the first and second acts of misconduct knowing, in doing so, that Mr Macdonald would be breaching his duty of impartiality by providing 'inside information' about the available coal reserves in an unexploited area of the Bylong Valley near Cherrydale Park to the potential detriment of other landowners in the area and, more generally, contrary to the public interest." 1. The written submissions accepted that this was not an "act" relied upon by the prosecutor in opening, but rather an "inference" derived from other matters. That characterisation was correct: why the inference was not reasonably open was not explained. The substance of the complaint appeared to be that to acknowledge an inference as a "strong probability" was "a hypothesis entirely consistent with innocence". [104] 2. The intimation that the judge did not identify or address the reasonable hypothesis consistent with innocence cannot be accepted. Those hypotheses were identified on numerous occasions in the course of the judge's reasons, including, significantly, in her refusal to be satisfied of the guilt of the conspirators on the basis of the first and second acts of misconduct. Otherwise, it may be accepted that the finding of a "strong probability" did not exclude reasonable hypothesis consistent with innocence. As that is the very language used by the trial judge, it cannot be a basis of error in this respect. The first matter identified contains no error. 3. The second matter arose from the following paragraph in the judgment. That passage read as follows: "1982 I also accept, in part, the Crown's submission that Edward Obeid's enquiry of Mr Macdonald about any knowledge of a mine being planned 'for Bylong by Anglo' (a matter he volunteered in the Shanahan/Jiminez interview on 18 December 2012 shows a preparedness to seek information from a Parliamentary colleague, in keeping with what I have found as the strong probability that Edward Obeid was the direct source of the enquiries made of the DPI by Mr Macdonald in May 2008, the subject of the first and second acts of misconduct." 1. There was passing reference in the submissions to this being a use of a particular matter for tendency purposes, being a basis which was not relied upon by the prosecution. Much circumstantial evidence can, at least in a colloquial sense, be characterised as "tendency evidence": to suggest that particular evidence cannot be used in that way requires attention to the precise nature of the inference being drawn. That was not provided in the written submissions: the term "tendency" was not used in oral argument. This complaint should be rejected. 2. The second complaint is that preparedness to seek information from a parliamentary colleague was "not evidence of agreement and participation in a conspiracy". That complaint invokes the fallacy that the relevance of any item of evidence in a circumstantial case must be apparent by looking at the item taken out of context. That was precisely the problem which this Court identified in Dolding. The complaint is untenable. 3. The third matter complained of was in fact an extrapolation of the reasoning with respect to the second matter. The passage in the judgment continued: "1982 … However, on a careful review of the way in which that information was volunteered, I consider Edward Obeid's answer to a very direct question asked of him carries greater probative weight than what is contended for by the Crown. That evidence is extracted as follows: Shanahan: Eddie, if I might ask just on the record any involvement, any discussions you had with the former Minister, Ian [Macdonald] about this, this tender process. Either in, in general terms or directly about Mt Cherry [Penny] or any of the property that was owned by the Obeid family? Obeid E: Probably having looked at … the sequence of events, we spent the summer of 2008 up on the farm [Cherrydale Park] and the rumours were rife about a mine for Bylong Valley by Anglo and when I went back to Parliament and it's on record that I asked Ian [Macdonald] if the Department has any knowledge of a mine being planned for Bylong by Anglo. Within six or seven days one of his staffers called on my office and said to me that there was no plans, known… 1983 In my view, that answer is capable of being understood as an attempt on Edward Obeid's part to deflect the import of the question. On one view, his unguarded initial answer, 'probably', reveals more than the balance of his answer, which is largely unresponsive. I note the enquiry about any mine being planned by Anglo American P/L in the Bylong Valley is not an enquiry that the Crown has any evidence was 'on record' in contrast to Mr Gibson's emails to the DPI of the 9 and 14 May 2008, which were." 1. The only criticism of this reasoning was contained in two sentences in the written submissions in the following terms: [105] "The supposed 'deflection' is a species of consciousness of guilt [that is, an admission] and the evidence was not admitted for this purpose see the admissions judgment. Her Honour did not direct herself in accordance with Edwards v The Queen … in arriving at this conclusion. (An aspect of Ground 6)" 1. The failure to give a direction in accordance with Edwards v The Queen [106] was the subject of ground 8, not ground 6, and will be dealt with in that context. 2. The first objection has two elements. The first element related to the lengthy judgment on the admissibility of statements made to a number of journalists, which has been identified as R v Macdonald (No 15). [107] The written submissions referred in a footnote to that judgment at [63]. That passage related to a different interview with a different journalist. The intended reference was to line 63 of the Shanahan-Jiminez interview, identified at p 57 of attachment A to R v Macdonald (No 15). The passage was admitted under s 81 as "capable of constituting an admission against interest against Edward Obeid". As appears from the judgment, specific passages identified as lies, prevarication or deflection were accepted as capable of constituting admissions based upon a consciousness of guilt. The third challenge is untenable. 3. The fourth and fifth challenges had a different focus; however, before turning to that material, it is necessary to identify the preliminary statement in relation to which the evidence was addressed. That appears from the following passages: "1984 Additionally, on the basis of the various factual findings I have made in the context of all of the evidence adduced in the Crown case (and the inferences I have drawn from that evidence), I am satisfied there is reasonable evidence to support a finding that Edward Obeid agreed to enter into the conspiracy (in which I am satisfied Moses Obeid and Mr Macdonald were intentional participants). I am also satisfied that evidence supports the further finding that Edward Obeid knew that by Mr Macdonald agreeing to misconduct himself as Minister for Mineral Resources and for the improper purpose of advancing Edward Obeid's financial interests and/or those of his family and/or associates, he would breach his duties and obligations as a Minister without reasonable cause or excuse. 1985 That evidence comprises the following facts and the inferences I have drawn adverse to Edward Obeid from those facts." 1. The first passage complained of (the fourth matter) was as follows: "1986 I am satisfied of Edward Obeid's coordinated and persistent efforts to 'distance' ownership of Cherrydale Park from Locaway P/L (described by Moses Obeid to journalists in Edward Obeid's presence as 'the [family's] rural property entity') to UPG P/L during the currency of the conspiracy, first via separate solicitors and then directly with an approach to Mr Cherry as mortgagor and for no apparent or declared commercial purpose." [Footnote omitted.] 1. Several criticisms were made of this passage. First, it was said that "the evidence of matters described by Moses … were not admitted against the appellant as an admission". [108] However, the point was trivial. There was no submission that the description was controversial, and it patently was not. 2. The second criticism was that the finding was not the basis of the prosecution case and was not supported by any evidence. The basis of this submission was unclear. The matters relied upon by the judge, namely evidence as to Mr Obeid Snr instructing solicitors and contacting the former owner, Mr Cherry, who still had a security interest in the property, to change the identity of the registered proprietor, were referred to in the very sentence about which the criticism was raised. It was an important aspect of the prosecution case that attempts were made to disguise the Obeid family interest in the property, as demonstrating an understanding both of the impropriety of Mr Macdonald's conduct and of the Obeid family's involvement as the beneficiaries of his partiality. In closing written submissions, the prosecution identified as "evidence to establish participation in the conspiracy by Edward Obeid", a series of matters, including: "f. Edward Obeid's central involvement in attempting to change the ownership of Cherrydale Park to UPG in order to distance the Obeid family from property ownership at Mount Penny (see [478] and following below)." 1. The extensive evidence relied upon by the prosecutor in support of that proposition was set out in the written submissions at pars 478-521. The criticism raised by the appellant was untenable. 2. The fifth matter identified a phrase in one paragraph of the judgment, namely a finding as to "the degree of telephone contact between the appellant and Moses Obeid". The criticism was that it was inconsistent for the judge to purport to rely on that material as evidence in support of Mr Obeid Snr's involvement in the conspiracy while at the same time concluding that "in the absence of the content of any of those communications the weight of that evidence goes no higher than to establish the opportunity for the relaying of information in that way". What followed that finding, which is not directly the subject of criticism, was the conclusion reached by the judge, namely: "In my view, that fact is worthy of some additional weight as reasonable evidence of Edward Obeid's participation in the conspiracy, albeit as reflecting a role that was 'hands-off' as compared to the 'hands-on' role Moses Obeid performed." 1. The finding of limited weight, which the judge observed was accepted by the prosecutor, could not have been the subject of relevant criticism on appeal. Such a finding was self-evidently open to the trial judge. The complaint involving "matter five" must be rejected. 2. There remains one further factor which should be identified in relation to this aspect of the judge's reasoning. As has been noted, the judge did not in fact answer the question as to whether Mr Obeid Snr's participation was proved beyond reasonable doubt before turning to the use to be made of the co-conspirators rule and reliance on the nature of the conduct engaged in by Mr Macdonald and Mr Moses Obeid. It may be inferred that it was in anticipation of that further step that the judge consistently used the phrase "reasonable evidence" to describe the evidence which was being considered in relation to Mr Obeid Snr's participation in the conspiracy, which had already been found to exist. That is, the judge was making findings, extraneous to the evidence relied upon pursuant to the co-conspirators rule, to demonstrate the existence of the conspiracy in furtherance of which the acts of the co-conspirators could be relied upon against Mr Obeid Snr. 3. Nevertheless, it is clear that the judge was also making findings as to those elements of the evidence which she accepted and identifying the weight which she was prepared to give to them. This dual function was relevant for the purposes of considering in due course the unreasonable verdict ground. For present purposes, it is sufficient to note that ground 7 must be rejected. Ground 8 – admissions and consciousness of guilt 1. Ground 8 had two parts and read as follows: "8(a) The trial judge failed to direct herself as requested in respect of admissions relied upon to demonstrate a consciousness of guilt on appellant's part in accordance with Edwards v The Queen. (b) The trial judge failed to direct herself as requested in respect of admissions relied upon to demonstrate a consciousness of guilt on Moses' part in accordance with Edwards v The Queen." [109] 1. At the heart of the two limbs to ground 8 was the proposition that the trial judge was obliged, pursuant to s 133 of the Criminal Procedure Act 1986 (NSW) , to give herself a direction, which was to be recorded in the trial judgment, in accordance with the principles stated in Edwards v The Queen. [110] The principles, however, were referred to by the judge in R v Macdonald (No 15) in terms which were not the subject of criticism on the appeal. Thus, the judge stated: "40 It is an uncontroversial proposition that not all previous representations alleged by the Crown to be lies are capable, as a matter of law, of being relied upon by the Crown as a category or type of circumstantial evidence probative of guilt. 41 In Edwards v The Queen …, Deane, Dawson and Gaudron JJ made it clear that, ordinarily, a lie will affect only the credit of a witness, including an accused, and that it is only in 'limited circumstances' where the telling of a lie by an accused can amount to conduct which is 'inconsistent with innocence, and amount therefore to an implied admission of guilt': at 208. Their Honours said (at 209): 'But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realisation or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him.'" 1. Having then considered the way in which particular representations were capable of demonstrating consciousness of guilt with respect to the offence the subject of the indictment, the trial judge concluded that of 36 representations identified by the prosecutor, 10 were "capable of supporting the inference for which the Crown contends, namely lies told by either Edward Obeid or Moses Obeid at a time when they were conscious that they had both conspired with Mr Macdonald, in the way the Crown alleges, with the object of that unlawful agreement being the generation of a financial advantage to the accused and/or their family or associates". [111] The trial judgment then continued: "49 I am satisfied for the reasons which follow, when considered in the context of all of the evidence adduced thus far in the trial, and having considered the submissions by counsel about the evidence, that, for admissibility purposes, 10 of the 36 representations identified in the schedule to the judgment are capable of being considered as 'consciousness of guilt lies' and that they are admissible on that basis as part of the Crown case against each of the accused. 50 In short, that ruling reflects a finding, on the balance of probabilities, that the motive for each of the lie(s) was a realisation of guilt and a fear that the truth would expose the fact that confidential information had been received from Mr Macdonald concerning the potential for the granting of a coal exploration licence over the land the Obeid family owned or controlled in the Bylong Valley and the fact of their criminal complicity, more generally, with Mr Macdonald in the commission by him of the multiple acts of wilful ministerial misconduct. It also follows that I am satisfied that the ten 'consciousness of guilt lies' are capable, when the Court is sitting as the tribunal of fact on the ultimate question of whether guilt is proved beyond reasonable doubt, as revealing a consciousness of guilt of the specific offence with which the accused are charged and in that way are probative of that fact." 1. It is true that the judge anticipated giving herself a further warning in the final judgment, which she did not, in terms, do. However, the judge referred to Edwards on two occasions. The first was as a footnote to the summary of the prosecution submissions to the effect that "Mr Macdonald lied to Mr Gibson about the location of Cherrydale Park, both conscious of what he had done in execution of the conspiracy and with the intention of concealing both the existence of the conspiracy and his participation in it". [112] 2. The second occasion was in a passage which expressly referred to R v Macdonald (No 15): "1967 In the course of publishing that judgment, I made it clear that whilst I was satisfied that 10 of the 36 lies the Crown sought to attribute to Moses Obeid as lies told with a consciousness of guilt were capable of constituting an implied admission of guilt, in my deliberations to verdict I would direct myself in accordance with settled principle,fn as to whether I was ultimately satisfied that the inference of guilt for which the Crown contended is an inference that can be properly and safely drawn." [Footnote reference omitted.] The footnoted reference to "settled principle" was to Edwards v The Queen. 1. Further, with respect to Mr Obeid Snr, the judgment stated: "1992 Finally, but no less importantly, in the Crown case that Edward Obeid was a knowing participant in the conspiracy, the Crown also relied upon a wide and diverse range of admissions against interest (some of them internally inconsistent) Edward Obeid made to the journalists Ms Ong and Ms Davies and then Mr Shanahan and Ms Jiminez, after the conspiracy had been fully executed, as further proof of his participation in the conspiracy alleged. 1993 Not all of what I have ruled admissible as admissions against interest pursuant to s 81 of the Evidence Act in the interlocutory judgment published during the course of the trialfn carry the same weight in proof of the fact of Edward Obeid's participation in the conspiracy. However, in combination, they are of considerable probative force." [Footnote reference omitted.] The footnoted reference to the interlocutory judgment was to R v Macdonald (No 15). 1. The context in which the interlocutory judgment was delivered is also significant. The prosecution closed its case on day 68 (24 November 2020). There was no defence case and, following discussion of certain legal issues, the matter was adjourned on 26 November 2020 for two months and concluded with eight days of closing addresses between 1 February and 17 February 2021. Judgment was reserved on 17 February 2021 and delivered on 19 July 2021. The interlocutory judgment dealing with admissions and referring to the principle in Edwards v The Queen was delivered on 25 November 2020, after the evidence had been completed and in anticipation of closing addresses. 2. The written submissions for Mr Obeid Snr at trial (dated 9 February 2021) ran to 170 paragraphs. There was one sentence (par 89) which stated: "The evidence simple [sic] does not compel of the conclusion that this evidence reveals a consciousness of guilt and the accused seeks an Edwards direction." 1. The precise terms of the "Edwards direction", and any particular issues to be addressed, were not identified. Nothing further was said as to that matter in oral submissions. [113] 2. Finally, it is convenient to note the legal consequence of there being no "Edwards direction" set out in the final judgment. The respondent identified on the appeal two factors which needed to be addressed. First, it was contended that the trial judge both directed herself in accordance with the principles in Edwards and applied those principles. The respondent relied upon the passage at [1967], set out at [199] above which included the footnote to Edwards v The Queen. The respondent also relied upon the two following paragraphs which read as follows: "1968 Having regard to all the evidence in the trial and in light of the various factual findings I have made in the course of my deliberations to date, I am satisfied that each of the ten lies attributed to Moses Obeid was a deliberate misstatement of the truth. I am also satisfied that each lie was material to the issues in dispute in the trial and each was told by Moses Obeid in an attempt by him to conceal both the existence of a conspiracy in which Mr Macdonald as the Minister for Mineral Resources agreed to breach his Ministerial duties and obligations in connection with the granting of an EL at Mount Penny for the improper purpose alleged, being an agreement into which Moses Obeid had intentionally entered and in which he actively participated throughout its currency. 1969 I am further satisfied, and direct myself accordingly, that it is safe to draw an inference of guilt adverse to Moses Obeid from having told each of those ten deliberate lies, in circumstances where I am satisfied that had he truthfully answered the questions put to him and/or volunteered information to the journalists about the acquisition of the properties adjoining Cherrydale Park and the circumstances in which he and members of his family became involved with mining companies who had applied for an EL at Mount Penny including Cascade Coal P/L, the mining company ultimately granted that EL, he would, unquestionably, have been at risk of implicating himself as a co-conspirator in the conspiracy charged." 1. There are a number of elements to the direction that a jury should be given in relation to lies revealing consciousness of guilt, which thereby constitute admissions. First, the lie must be "deliberate"; secondly it must "relate to a material issue"; thirdly it should be "precisely identified", and fourthly, a jury should be instructed that "there may be reasons for the telling of a lie apart from the realisation of guilt if the truth were revealed". 2. There was no submission from the appellant that the trial judge did not apply these principles. As the respondent contended, she clearly did. For example, in dealing with Mr Moses Obeid, the trial judge stated: "1978 I am satisfied that the lies listed above were deliberately told by Moses Obeid to conceal his family's interests in the Mount Penny EL; their dealings with Monaro Mining NL in that connection; the role Mr Brook played in those dealings; his knowledge of Monaro Mining NL's application for the grant of an EL over the Mount Penny Coal Release Area; and the source of that knowledge." (Emphasis added.) 1. In the passages at [1994]-[1997], each of these factors was applied. What was lacking from submissions by the appellant was the identification of any element of an appropriate direction which was not given and which was, in a realistic sense, a matter which Edwards required be the subject of a direction. This leads to the other point raised by the respondent. 2. Secondly, the respondent noted that there was a difficulty arising from the appellant's reliance upon an alleged failure to comply with s 133(3) of the Criminal Procedure Act, as demonstrating error of law. There is a difference between the operation of s133 (2) and s 133(3). Subsection (2) requires that a judgment record "principles of law" applied by the judge and "findings of fact" on which the judge relied. Warnings are dealt with in subs (3), under which the judge is required "to take the warning into account in dealing with the matter". Generally, as noted in Dansie v The Queen, [114] the reasons of the judge must demonstrate that the judge did take the warning into account: however, it does not follow that the direction must be stated in the language which would be used in relation to a jury. For example, while it may be necessary to direct the jury that they be satisfied that a lie was "deliberate" before relying upon it, an express finding in the judgment that a lie was deliberate would demonstrate compliance with that aspect of s 133(3). Similarly, a jury may need to be directed as to what it may mean to identify a lie "with precision". However, where a judgment identifies in express terms the lies relied upon and found to have been deliberate, with sufficient precision, it should be inferred that the judge has complied with the terms of the warnings derived from Edwards v The Queen. 3. In support of that proposition, the respondent noted the observations in Zoneff v The Queen: [115] "The meaning of the phrase 'consciousness of guilt', the risk that its use by the trial judge may itself suggest guilt, which circumstances call for the giving of an Edwards-type direction, and the difficulty in distinguishing between lies going to credibility and those indicating guilt have been matters of some controversy… But as Hayne JA in Morgan [116] suggests, rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated." 1. As the respondent submitted, what was described, more than once, as an "Edwards-type direction", cannot be characterised as a "principle of law" for the purposes of s 133(2). It lacks the necessary degree of obligation and specificity. Obligation is missing because judgment must be exercised as to whether, and if so in what terms, a direction should be given. Accordingly, the fact that the findings of the trial judge demonstrated with a degree of clarity that the relevant principles identified in Edwards were applied, also demonstrated the absence of an error of law sufficient to engage non-compliance with either s 133(2) or s 133(3). Ground 8 should be rejected. Common ground 5 – critical findings of fact 1. Somewhat elliptically, ground 5 merely read: "5 The trial judge erred in making critical factual findings that were not open." 1. The written submissions of Mr Moses Obeid identified five specific factual errors under the following headings: "(1) Conversation with Fitzhenry in 'early 2008'; (2) Macdonald's 'strong suggestion' in relation to 'in the east'; (3) Report to Moses Obeid that the DPI was considering the Bylong Valley; (4) The fourth misconduct (the Wiles Maps); and (5) The eighth misconduct (Schiavo Map 3 / Medium Coal Allocation Document)." 1. The content of the factual errors is to be gleaned from the detailed written submissions. Ground 5(1) - conversation with Fitzhenry in early 2008 1. In order to understand the issue raised under this subheading, it is necessary to recall that the trial judge was satisfied as to the facts alleged with respect to the first and second acts of misconduct. Those acts involved enquiries by Mr Macdonald as to the coal reserves in the area of Mount Penny in the Bylong Valley. Such enquiries were made with knowledge that the Obeid family-owned property in that location. Further, Mr Macdonald sought further information from the department as to whether it was possible to open the holdings for tender. The judge held, undoubtedly correctly, that those findings did not of themselves implicate Mr Macdonald or the Obeids in a conspiracy. As the judge noted, there would remain a reasonable hypothesis that Mr Macdonald had so conducted himself "as a favour to Edward Obeid, knowing his family-owned Cherrydale Park and they were keen to gather information about the potential coal reserves under their property and surrounds, or to gain some perceived political leverage or in the hope or expectation of a financial benefit if the Obeids were able to exploit the information". [117] Thus, in order to establish that such activities occurred pursuant to the unlawful conspiracy as pleaded, it was necessary for the prosecution to establish some conduct of the Obeids demonstrating knowledge of an action in reliance upon the pleaded agreement. 2. One aspect of the benefits which might flow from development of the coal reserves was an increase in the value of all three properties which lay above the identified reserves, being Cherrydale Park, Coggan Creek and Donola. The prosecution case was that armed with knowledge of the potential exploitation of coal in the area, the Obeids saw a significant benefit in the three properties being under control of their friends or associates, partly to benefit their friends or associates, but also to permit a joint approach to any prospective miner which would wish to purchase the properties. One of the proposed purchasers was the Fitzhenry family, who were neighbours of Moses Obeid and had close social ties with the Obeids. 3. There was no dispute that there were conversations between Peter Fitzhenry and his wife Nicole Fitzhenry and Moses Obeid in the course of which coal resources in the Bylong Valley were discussed. The critical issue for the purposes of the trial was when those discussions took place. If, as the judge found, they took place in early 2008, that is before 9 May 2008, they provided potentially strong evidence of the plans to exploit the coal resource being undertaken by the Obeids before the critical date by which the agreement, on the prosecution case, had to have been formed. 4. The judge explained the relationship between the Fitzhenrys and the Obeids in the following passage: "821 Peter and Nicole Fitzhenry and their family lived in a property in Elizabeth Bay next to Moses Obeid's family home. Moses Obeid's family and the Fitzhenry family enjoyed a close relationship as neighbours for a period of years prior to and after September 2007. 822 Mrs Fitzhenry confirmed that the two families formed a close friendship to the extent that they took the fence down between the two houses between six months to a year after Moses Obeid's family moved in, estimating that to be 'maybe' in 2006. 823 Mr Fitzhenry gave evidence that he saw Moses Obeid and his wife 'pretty well every day', through combined social activity and the sharing of family meals." 1. The evidence of both Mr Fitzhenry and Mrs Fitzhenry supported a finding that there were a number of conversations about Cherrydale and the Bylong Valley coal resource. A number of objective circumstances were not in doubt. The first was that the Obeids were looking for a country property in late 2007. There was no dispute that contracts were engaged for the purchase of Cherrydale from Mr Kerry Packer's accountant, Mr Cherry, in September 2007 and that settlement occurred on 15 November 2007. 2. It was also uncontroversial that the Obeid family (in particular Paul and Gerard Obeid) were interested in finding purchasers for Coggan Creek and Donola in June 2008, some six weeks after 9 May 2008, the date of the first act of misconduct. The Obeid brothers, with another associated family, the Triulcios, purchased Donola on 6 August 2008. Mr Moses Obeid obtained a purchaser of Coggan Creek, Mr Justin Lewis, a personal friend, in October 2008. 3. The first act of misconduct relied upon alleged that Mr Macdonald sought information "as to the volume of coal reserves in the area of Mount Penny" on or about 9 May 2008. That formulation, which the trial judge accepted as established on the evidence, implied that the Minister had knowledge of the existence of coal reserves in the area prior to that date. For the conspiracy to have existed at that time, that information must also have been known to the Obeids. Part of the evidence relied upon for the judge's conclusion that that was in fact so was found in conversations between Mr Moses Obeid and Mr Fitzhenry. That evidence was partly supported by Mrs Fitzhenry, and there is no doubt that a number of conversations took place, over a period of time. It is also not in doubt that Mr Fitzhenry was at points of his evidence imprecise as to the period within which a particular conversation had taken place. After obtaining evidence as to conversations in relation to the Obeids' purchase of Cherrydale, the following evidence was led from Mr Fitzhenry: [118] "Q. Other than that conversation with Moses about Cherrydale, did he ever speak to you about the property again? A. Sometime later he told me there was coal underneath the – underneath Cherrydale. Q. When you say 'sometime later', are you able to recall how much time had passed after the purchase before that conversation occurred? A. It wasn't very long at all. Maybe a month. Q. And what, if anything, can you remember about that conversation other than saying there was coal underneath? A. He indicated to me that if the coal was to be taken up there, that he said to me that it would be a life-changing experience to – a life-changing situation that would just be fantastic, you know, money-wise." 1. In sequence, Mr Fitzhenry then gave evidence that there was a helicopter trip to Cherrydale because a friend was taking helicopter lessons and they flew there on a Saturday with Mr Moses Obeid. Thereafter, there was a further conversation about Mr Fitzhenry buying a property which was next door to Cherrydale. He imagined that that was about a month after the helicopter trip, during which there had been no discussion of coal. The purpose of the purchase was to make a "substantial amount of money" if the coal were to be extracted. [119] Mr Fitzhenry was also told "[t]here was a railhead that made the property valuable to a mining situation". [120] 2. If that evidence were accepted, it was apparent that Mr Moses Obeid was investigating the possibility of extracting coal both from Cherrydale and, by implication, from Coggan Creek. The Wiles Map, produced on 30 May 2008, and set out in the appendix to these reasons, showed a coal resource area running north-south under both Cherrydale Park and Coggan Creek, and continuing under Donola. 3. One possibility was that, although the vendor of Cherrydale Park, Mr Cherry, disclaimed any knowledge of affectation by an existing coal mining tenement, there was a large exploration licence to the east of Cherrydale Park, a small portion of which (120 hectares) impinged on the eastern boundary of Cherrydale Park. The affectation was minor in the sense that Cherrydale Park covered some 6,000 hectares. The resource which became the subject of the Mount Penny exploration licence, was far more extensive. It was therefore unlikely that Mr Moses Obeid had in mind possible mining under the eastern authority when discussing the likelihood of enrichment through the exploitation of coal "under" Cherrydale Park. 4. After considering the cross-examination of Mr Fitzhenry, the evidence given by his wife, together with her cross-examination, the judge reached a number of conclusions. First, little weight was placed on the evidence of Mrs Fitzhenry in relation to the events in 2007-early 2008. However, the judge took a different approach with respect to the evidence of Mr Fitzhenry, concluding: "870 I am satisfied, however, of the force in the Crown's allied submission that the timing of Moses Obeid's initial approach to Mr Fitzhenry to purchase Coggan Creek in the early part of 2008 is significant in proof of the Crown case in two ways. 871 Firstly, it undermines the truth of the assertion made jointly by Moses Obeid and Edward Obeid in their conversation with the journalists, Mr Shanahan and Ms Jiminez in December 2012 that they were only ever interested in the acquisition of the properties neighbouring Cherrydale Park as a so-called 'exit strategy' and that they had no interest in or engagement with any mining company to jointly exploit the coal resource they had learnt underlay Cherrydale Park. 872 Secondly, and more importantly, Moses Obeid's expressed enthusiasm for the money to be made by exploiting the coal underneath Cherrydale Park is a source of direct evidence capable of supporting the Crown case that before 9 May 2008 he was determined to secure the best means by which the coal in the area of Mount Penny in the Bylong Valley could be 'taken up' to secure the substantial profit that would be generated as a result. It is also a source of direct evidence probative of the fact that with that driving commercial motivation, he and his father approached Mr Macdonald to secure his assistance in achieving that objective, an approach which eventually matured into the unlawful agreement the subject of the conspiracy. Whether the Crown makes out that case must be determined having regard to all the evidence." 1. The appellant submitted that this finding was not open on three bases. 2. First, it was submitted that Mr Fitzhenry's evidence as to the timing of various events was "confused". [121] Aspects of his recollection of timing were undoubtedly unreliable. However, after referring to cross-examination on the basis of statements made to the ICAC, at a time when Cascade Mining or Cascade Coal was involved (which must have been in 2009) was addressing a different stage of the process. The judge noted: "850 In re-examination at trial, Mr Fitzhenry was asked the following leading question (without objection): Q. The conversation that you have been asked about with the syndicate and Cascade Coal, is your evidence that that was a different conversation to the conversation with Moses about the purchase of the property next door? A. Yes." 1. The judge accepted that the timing of the earlier conversation "where coal and the property adjoining Cherrydale Park (Coggan Creek) were mentioned in tandem, however, it seems to me, on Mr Fitzhenry's evidence, to be early in 2008". [122] Otherwise, the cross-examination of Mr Fitzhenry was relatively brief. Reliance was placed upon a suggestion put to him that the conversations with respect to the purchase of Cherrydale and the possibility of coal at Cherrydale took place in September or October 2008, a question which he was unable to answer. However, the question and answer should not be taken out of context. The relevant passage in the cross-examination was as follows: [123] "Q. Would you agree that they [Mr Moses Obeid and his wife] moved into that house next door to you in about September 2006? A. Look, I can't recall but if you say so, it's 2006. Q. Would you accept that the contract for sale of the Cherrydale property was dated 27 September 2006? A. I can't comment. Q. Would you accept that the settlement of the Cherrydale property was on 15 November 2007? A. I have no knowledge of that. Q. Would you agree that the helicopter trip took place approximately four to six weeks after 15 November 2007, in either late December 2007 or early January 2008? A. Look, I can't pinpoint it at this time, no, I can't. Q. Would you agree that after Mr Moses Obeid and/or his family purchased Cherrydale, the first time thereafter that there was any conversation between you and he on the topic of coal or the possibility of coal at Cherrydale was in about September or October 2008? A. Once again, I don't have a specific recall of that but, no, I don't know the exact dates." 1. It is clear that the trial judge did not consider that that cross-examination cast doubt upon Mr Fitzhenry's earlier evidence which placed the conversation about coal under Cherrydale within a few weeks after the settlement of the purchase, and therefore in the earlier part of 2008. It was undoubtedly open to the judge to make that finding. 2. Secondly, it was said that such a finding was inconsistent with the objectively known circumstances. 3. Apart from the dates put to Mr Fitzhenry in cross-examination, it was submitted that the timing of the suggestion that the Fitzhenrys mortgaged their house to buy Coggan Creek cannot have occurred within a month of the helicopter trip to Cherrydale. That was because "[t]here was no evidence that Coggan Creek was even up for sale until around June 2008". [124] 4. The force of that proposition, which was not put to Mr Fitzhenry in cross-examination is not entirely clear. If Mr Moses Obeid had been aware that there was coal under Coggan Creek, he might well have sought to identify people who might purchase it, without knowing whether it was "on the market", although it turned out to be for sale in the third week of June. 5. Thirdly, in the course of oral submissions, it was contended that it would be "quite impossible to understand how there [is] any corroborating circumstance for what might be called the discovery of coal, until obviously some time considerably later, in 2008. The Minister, after all, in the first two instances of misconduct, was seeking information he did not have concerning the availability of a resource". However, for reasons noted above, the first two instances of misconduct assumed knowledge of the existence of the resource, of which details were lacking at that time. That does not place significant doubt on the evidence of a conversation prior to 9 May 2008, in which Mr Moses Obeid demonstrated excitement as to the prospect of an exploitable resource under Cherrydale. 6. The challenge to the finding in relation to Mr Fitzhenry's evidence should be rejected. Ground 5(2) - Minister's "strong suggestion" of small area "in the east" 1. There was a challenge to the way in which the trial judge dealt with the evidence of Mr Mullard in relation to a meeting with Mr Macdonald on 6 June 2008. The evidence was dealt with in some detail in relation to ground 2, but a specific challenge was mounted under ground 5 in relation to the following finding: "1032 In those circumstances, and after giving full weight to Mr Mullard's position as a senior executive officer of the Department and his knowledge and expertise, I make the following factual findings: … (4) Upon the Minister accepting, through Mr Mullard, that the Department would not favour breaking up Ridgelands or Benelabri, the North Bylong/ Mount Penny potential open cut coal resources on Wiles Map 2 became the focus of those discussions in the course of which the Minister 'strongly suggested' the Department look at creating, or excising, a small coal release area from the sideways S-shape on Wiles Map 2 to the east." 1. This finding was made in the course of rejecting the prosecution's formulation of the fifth act of misconduct, to the extent that it had alleged that Mr Macdonald "directed" that the potential open cut area depicted in Wiles Map 2 be reduced to a smaller area comprising the eastern portion only. Thus, the evidence of strong suggestion was held not to satisfy the concept of direction. The present challenge, however, went to the aspect of the act which referred to the eastern portion, next to Mount Penny. 2. The submissions correctly noted that the finding reflected an earlier passage in the judgment in the following terms: "971 Mr Mullard did, however, accept the Minister may have said what was attributed to him in his 2014 statement about making 'a smaller area in the east' which the Minister referred to as 'the Mount Penny area' but that with the passage of time he has forgotten that was said. Mr Mullard ultimately volunteered that the Minister 'definitely' told him to 'make a smaller area' and that it was 'very likely' in the east. He did not, when giving that evidence, qualify the reference to the Minister 'telling' him to make a smaller area, in the sense of 'telling him' to see whether it was possible to do so, the resounding effect of his evidence both in his evidence in chief and under cross-examination by the accused. The Crown did not re-examine on this issue." 1. The footnotes to the first and second sentences in this passage identified two pages of the transcript, namely 901 and 902. However, to understand the evidence given in those pages, it is necessary to start earlier in the cross-examination by the prosecutor (pursuant to leave under s 38 of the Evidence Act), who took Mr Mullard to a statement he had made dated 20 May 2014. [125] Mr Mullard agreed that when he signed the statement he was satisfied that the contents were true to the best of his knowledge and belief. [126] He was then taken to a paragraph which read as follows: [127] "At this meeting the Minister told me that he wanted the north Bylong area broken up to make a smaller area in the east that could be released with the smaller Coal Release Areas under consideration at that time. He referred to this as 'the Mount Penny area'." 1. Mr Mullard agreed that that was what he had said but baulked at the proposition that it "accurately records what the Minister said at the meeting". [128] He noted that the statement was written six years after the event and it was now 12 years after the event and he had no present recollection of what was said at the meeting. 2. The prosecutor continued: [129] "Q. Well, Mr Mullard, you accept that your memory in 2014 of these events is – A. Is likely to be better than it is today. Q. Yes. And you said that you, sitting here today, accept that – as you sit here today you accept the Minister may have said these things at the meeting? A. That's correct. Q. And it follows that you accept, with the passage of time between 2014 and today, that you may have forgotten that, during the meeting, Mr Macdonald told you to make a smaller area in the east? A. Yes. Q. And you accept – A. He definitely told me to make a smaller area. Q. Yes, 'in the east'? A. That is very likely, yes." 1. The appellants criticised the use of the word "volunteered", although the passage in the transcript set out above suggests that it was entirely appropriate. In any event, the criticism is immaterial. The other arguably substantive criticism was identified as follows: [130] "The trial judge wrongly conflated two aspects of the evidence of Mr Mullard to arrive at that finding. It is correct that Mullard stated that Macdonald strongly suggested the Department look at creating a small area from the North Bylong-Mount Penny area. He gave no such evidence that Macdonald 'strongly suggested' that it be in the eastern side." 1. The thrust of this contention appears to have been that there were other passages in which Mr Mullard expressed his understanding of what had happened at the meeting differently. Because he accepted he had no clear recollection of what was said at the meeting, whilst in the witness box in March 2020, it was undoubtedly open to the trial judge to accept the formulation he had used in his earlier statement. 2. The submissions further asserted that the words "in the east" would not have been indicated in quotation marks, as appeared in the transcript. It was submitted that there was therefore "a clear ambiguity that arises as to what was said versus what was the conclusion of the meeting". 3. This criticism is without substance. It was being put to Mr Mullard that things which he had said in his statement were in fact said at the meeting, and that the previous full question had referred to "a smaller area in the east". Mr Mullard's answer had accepted that he "definitely told me to make a smaller area", to which the prosecutor sought to add in the next question, "in the east". There was no ambiguity. Nor was there any misdescription in the summary given by the trial judge at [971] set out above. (It might be thought that the judge's ultimate finding as to the fifth act of misconduct was favourable to the accused.) The difference between a direction and what the Minister "definitely told" Mr Mullard to do, is obscure. In any event, the suggestion that the finding as to what the Minister strongly suggested was not open to the trial judge is without substance and should be rejected. Ground 5(3) - whether Bylong area considered by DPI at May meeting 1. The third matter said to demonstrate error on the part of the trial judge related to a complex set of passages in the evidence as to discussions within the Department in May 2008 and whether they included the Bylong area. By "error" the appellants must be understood to be asserting that certain findings of fact were "not open" on the evidence. Whether that was indeed the intended inference to be drawn from the submissions with respect to this matter is unclear. Because the subject matter of the challenge was not crystallised with precision in any ground of appeal, it is necessary to set out what appears to be the heart of the complaint in the language used in the written submissions: "496 The Trial Judge erred in finding that the Bylong Valley was not an area discussed by the Department at a meeting with Monaro Mining in May 2008 ([1470]) and in making no finding as to any such information (whether accurate or not) being communicated to Moses Obeid in July 2008. The Trial Judge ought to have found that the area either was or may have been discussed as between the Department and Monaro or at least that such a fact or asserted fact was or may have been reported to Moses Obeid by Gardner Brook in July 2008. Such findings arise from the unchallenged evidence of Rampe, Maloney [sic] and Gardner Brook. 497 Such findings are of importance as they in themselves give rise to a reasonable doubt as to guilt. They would directly corroborate the account of Moses Obeid given to journalists that he learned from Monaro (via Gardner Brook) that the Department was considering releasing EL6676: Exhibit AV-2, p 6106. That Gardner Brook relayed such a fact or asserted fact in or around the time he first met with Monaro (15 July 2008: T1548.21 – 1549.50 and Exhibit A, p 1119) would provide an alternative source other than Macdonald (or even additional to Macdonald if information was being cobbled together from different sources) for why the Obeid brother's 'pulled the trigger' on proceeding to arrange for the purchase of the additional properties, Donola and Coggan Creek. The evidence of Rumore was that, despite having the option agreement for Coggan since 4 July 2008, and despite requesting permission to review the contract on 4 July 2008 (Exhibit A, p 1083), 14 July 2008 (Exhibit A, p 1115), 18 July 2008 (Exhibit A, p 1143 and Exhibit A, p 1153), 21 July 2008 (Exhibit A, p 1161), Rumore only received the 'go ahead' to progress his review of the contracts for Donola and Coggan Creek on 21 July 2008, being after Gardner Brook was introduced as a potential partner: Rumore XXN, Day 39, T2056.7-11. That is, after such a conversation about Monaro, the Department and the Bylong Valley would have taken place." 1. The meeting in question was held on 19 May 2008 and was attended by Mr Mullard and Ms Moloney (officers in the DPI) and Messrs Rampe and Bowman (representatives of Monaro Mining). 2. Because the focus of the challenge was on the finding (or lack of findings) in [1470], it is necessary to set out that passage from the judgment. "1470 For reasons already discussed when considering the evidence relevant to proof of the first and second acts of misconduct, I am not persuaded that the Bylong Valley was an area the DPI was discussing with Monaro Mining NL in early May 2008, or that the inferences for which Mr Martin contended were open. In coming to that conclusion, I have given particular weight to Mr Bowman's evidence. Although he was in direct dialogue with the DPI (as a former employee of the Department and having a retained friendship, of sorts, with Mr Mullard after his retirement) he had no confidence in Monaro Mining NL's capacity to participate in an EOI tender process for the exploration of a small to medium coal release area given the company's lack of expertise and capital. He described Monaro Mining NL as a "Mickey Mouse company". He also made it clear, to my mind beyond any question, that none of the seven areas that he identified as potential remnant areas for direct allocation by the Department related to Mount Penny or were located in the North Bylong area." 1. The written submissions were critical of an "apparent suggestion" by the trial judge that Mount Penny was not an area identified by Monaro Mining in its representation to the Department. [131] The submissions continued, stating that "[t]o the extent that the Trial Judge considered there was [no such suggestion], her Honour erred". However, at [1467(5) and (6)] the judge noted evidence of Mr Rampe and Ms Moloney that Bylong Valley was discussed. On the other hand, at [1467(1) and (2)] the judge observed that the written text of Monaro's presentation did not refer to the Bylong Valley or Mount Penny, and that the report prepared by Mr Bowman summarising the meeting and "did not mention the Bylong Valley or Mount Penny". Mr Bowman gave oral evidence as follows: [132] "Q. Do any of them relate to Mount Penny or the Wollar-Bylong area? A. No, they don't." 1. In finding that none of the areas discussed with Monaro Mining related to Mount Penny, the judge accepted, and gave reasons for accepting, Mr Bowman's evidence. The suggestion of the possibility of error should be rejected. 2. Secondly, paragraph [1470] started with the statement that the reasons for the findings and lack of findings had already been discussed in the judgment. However, the appellants did not refer to earlier passages in support of this challenge; the only passages in the judgment referred to were paragraphs [1467] and [1470]. 3. The submissions did, however, contain extensive references to the evidence of various witnesses, including Mr Gardner Brook, who was not at the meeting. The purpose of the submission was summarised in the following passage in the written submissions: "509 What remains critical is that, however accurate, it is likely or at least distinctly possible, that Gardner Brook told Moses Obeid in July 2008 that … the Department had told Monaro that the Bylong Valley was one of the areas under consideration for release. That fact is especially likely if the Bylong Valley was mentioned by the DPI. That fact remains possible even if Gardner Brook was wrong when he asserted that fact to Moses Obeid." 1. The evidence relied upon to raise this possibility was that Ms Moloney gave what was described in the submissions as "unchallenged evidence" that the Bylong Valley was one of the areas "being tossed around". So much may be accepted: the judge expressly referred to that evidence at [1467(6)]. In the same passage, the judge referred to the evidence of Mr Bowman that there was no mention of the Bylong Valley or Mount Penny, the evidence of Mr Mullard that expressions of interest at that time did not relate to the Bylong Valley, and the evidence of Mr Bowman that he would have been "very surprised" if the Bylong Valley was discussed given the report he had furnished to Monaro Mining. 2. The statement that Ms Moloney's evidence was "unchallenged" requires a degree of clarification. Counsel for Mr Macdonald cross-examined Ms Moloney to the following effect: [133] "Q. During the discussions between the Department and Monaro on 19 May 2008, there were a lot of areas discussed, is that fair to say? A. Yes. Q. And the Bylong Valley was one of the areas being tossed around? A. By Monaro? Q. Well by either of the Department or Monaro. A. Yes. HER HONOUR Q. Do you have a recall of that, Ms Moloney? A. Well, it's all happening – it's happening in the background. Q. What is happening in the background? A. Well, obviously we're – sorry, I shouldn't say that. We're working towards a possible expression of interest release so, you know, we are aware that – or I am aware that we are looking at these areas and yet we are talking to these companies trying to give them general directions of, you know, allocations. … HER HONOUR Q. Ms Moloney, in this general or generalised discussion about the Bylong Valley, was there discussion about an unallocated area in the Bylong Valley that was contained within or included within the DPI's exploration licence 6676; do you have a recall of that being discussed? A. I have no specific memory of it. MARTIN Q. Is it the case that you have no specific memory as to whether Anglo American Coal's authorisations 287 and 342 were mentioned at this meeting on 19 May 2008? A. I don't remember that either." 1. The trial judge did not disregard the evidence of Ms Moloney, nor that of Mr Rampe of Monaro. She adverted to it, but preferred the evidence of Mr Bowman. The judge heard all four persons who attended the meeting giving evidence over several days of the trial. Given the lapse of time between the date of the meeting (May 2008) and the date of the trial in 2020, there were self-evidently serious issues of credibility and reliability in respect of the evidence. Where there was a conflict, as there was in the present matter, it was one which the trial judge was required to resolve, in so far as it could be resolved. She did so, and gave extensive reasons, referring to the evidence of each witness, in doing so. There is no substance in the challenge raised by the appellants in the terms set out above, by reference to the written submissions. Ground 5(4) - the fourth misconduct (the Wiles Maps) 1. The fourth particularised act of misconduct related to the period between 8 May and 9 July 2008. It alleged that Mr Macdonald caused Mr Obeid Snr, Mr Moses Obeid, or another member of the Obeid family to be provided with a copy of the Wiles Maps No 1 and No 2. The first map was prepared by Ms Leslie Wiles and dated 9 May 2008; the second map was also prepared by her and dated 30 May 2008. The fourth matter raised under ground 5 was the finding by the trial judge that the fourth act of misconduct was established. The first passage in the judgment accepting that conclusion was the following: "1331 Having accepted as reliable Mr Brook's description of the larger map as containing the distinctive red cross-hatched sideways S-shape and, on that basis, having reasoned to the conclusion that it was in fact Wiles Map 2 which was produced at the second Wentworth Hotel meeting, I am able to make the further finding, as a matter of overwhelming inference, that it was Mr Macdonald who provided or caused to be provided Wiles Map 2 to Edward Obeid, Moses Obeid or another member of their family, there being, in my view, no evidence to support a finding that it was in Paul Obeid's possession from any other primary source." 1. The judge then embarked upon a consideration of the confidentiality attaching to the maps at the time they were provided by Mr Macdonald to a member of the Obeid family prior to a meeting in the Wentworth Hotel on 7 July 2008. Being unable to resolve that issue satisfactorily, the judge concluded that the provision of Wiles Map 2 involved a breach of duty of the Minister to act in a disinterested and impartial way. The judge determined: "1357 It is clear beyond question, in my view, that conduct contravenes Mr Macdonald's general obligation to exercise his Ministerial powers impartially and in the public interest, since by the provision of the map it is patent he was acting partially in order to advance the private interests of the Obeids and not in the public interest." 1. So far as the challenge to the finding of the trial judge was concerned with the production of maps by Mr Macdonald to a member of the Obeid family, the submissions commenced: "511 There was no dispute at the trial that, on or around 7 July 2008, at the Wentworth Hotel, Gardner Brook met with Paul Obeid, Moses Obeid, Gerard Obeid and Arlo Selby to discuss a potential mining transaction involving properties in the Bylong Valley. Nor was there any dispute that, at that meeting, Paul Obeid produced and discussed a number of maps. The dispute concerned the Crown's contention that one of the maps produced was an A3 version of Wiles Map 2." 1. The written submissions identified seven ways in which it was said that the trial judge "erred" and "appeared to" err, or otherwise failed to take some step in her reasoning. In this way the appellants sought to establish that the judge's finding was not "open" on the evidence. Those aspects in which there was no error on the part of the judge identified apparent weaknesses in the evidence itself. It is necessary to address each of these matters in turn, although there appears to be a degree of overlap in the sense that one restates another point from a different perspective. Each of the first three grounds relates to the way in which the primary evidence was adduced. Thus, the prosecutor did not show Mr Gardner Brook a copy of the Wiles Map No 2 which was in evidence, but rather elicited a verbal description of the map from him. 2. The first complaint was that the trial judge "gave no weight" to the fact that he had not been shown the map by the prosecutor. While it is true that that was a forensic decision made by the prosecutor, to have shown him the map in his examination in chief, even after obtaining from him a description of the map, may have had a tendency to poison the well, so that cross-examination as to his memory would be subverted. One way of dealing with that problem might have been for the prosecutor to invite the accused to indicate whether they objected to her not showing the document to the witness or proposed to comment adversely if she did not. There is no suggestion that the prosecutor took such a step, but neither did any of the accused raise the matter. 3. The evidence as to the meeting at the Wentworth Hotel on 7 July 2008 (the second such meeting) extended over more than 60 paragraphs of the judgment. Mr Brook's evidence was broken by a voir dire, in circumstances recounted by the judge at the beginning of the summary of the evidence: "1246 Mr Brook gave evidence that Moses Obeid then said 'Paul, I mentioned to Gardner in our first meeting about our property and, you know, that we have a coal ‑ we think we have a coal resource there' after which Paul Obeid confirmed that 'they had every reason to believe that there was a large coal resource underneath their property'. The meeting which followed was led by Paul Obeid, but Moses Obeid was an active participant. Gerard Obeid contributed very little to the meeting. 1247 Mr Brook gave evidence that at this point Paul Obeid produced a number of maps from a cardboard tube. Whether the Crown would be permitted to adduce evidence from Mr Brook to seek to establish that Wiles Map 2 was one of the maps was the subject of legal argument in the trial. 1248 The issue was foreshadowed prior to Mr Brook giving evidence. … 1249 The Crown prosecutor informed me that the production of the maps from the cylinder and the size of those maps were foreshadowed as evidence the Crown proposed to adduce from Mr Brook. His evidence that some of the maps were in colour, including one map (the larger of the two) which depicted a red cross-hatched area was also foreshadowed. 1250 It was those particular features of the larger map, together with Paul Obeid pointing out the location of the Obeids' property on it, and what was said by Paul Obeid to be the coal-rich area adjacent to their property, which the Crown submitted supports a finding that Wiles Map 2 was the larger map Mr Brook was shown at that meeting. 1251 Mr Neil objected to the admission of that evidence, broadly on the ground that it would be productive of unfairness to the accused since it would be inevitably 'tainted' by Mr Brook having been shown Wiles Maps 1 and 2 and given information about them during the course of the ICAC proceedings. 1252 During legal argument, I observed that it could not be disputed that Mr Brook's evidence in the trial in 2020 was given in the context of a raft of leading questions asked of him in the ICAC proceedings in 2012, and information about the provenance of Wiles Maps 1 and 2 which was given to him at that time, and later in interviews with ICAC investigators where he was 'led' to confirm his evidence and to elaborate upon it." 1. These matters were explored on the voir dire and described by the trial judge at [1253]-[1258], two of which contained a number of subparagraphs. The outcome of the voir dire was that no ruling was made on admissibility, but the prosecutor was allowed to ask non-leading questions within a certain scope, following which the issue of admissibility would be revisited. That did not happen and the evidence "in the trial" was admitted whilst the evidence on the voir dire was available to the parties for the purposes of cross-examination. [134] 2. From the basis of objection by counsel for Mr Moses Obeid, it might have been inferred that further objection would have been taken had Mr Brook been shown (again) a copy of the map. The judge then noted that on resumption of his evidence in chief Mr Brook was not shown the map by the prosecutor in any of the forms which were then available. [135] Rather, he described the map and gave evidence of statements made by Mr Paul Obeid, having placed the maps on the table at the meeting. Having set out the extent of the evidence, the trial judge turned at [1301] to consider whether the fourth act of misconduct had been established. The judge observed: "1316 It is of some significance that in resolving the question whether Mr Brook was shown Wiles Map 2 (or a copy of it) at the Wentworth Hotel meeting that he was not invited by the Crown to look at any of the tendered copie[s] of Wiles Map 2… Instead, the Crown relied upon Mr Brook's description of the map, most particularly the red or pink coloured area, inviting me to find that despite the fact that he had been shown Wiles Map 2 previously, I would be comfortably satisfied that his evidence in the trial was detailed and free of any suggestion or taint from his previous exposure to the maps in the ICAC or from his dealings with investigative officers after that date." 1. The first complaint, that the trial judge gave "no weight" to the fact that Mr Brook was not shown the map is, in the circumstances, obscure. She took the fact into account in making her assessment of Mr Brook's evidence. However, the real issue in dispute at the trial, as demonstrated by counsel's objection prior to the voir dire, was that an earlier exposure had tainted the evidence given by way of description. 2. In substance, what followed in the written submissions was a complaint about the inadequacy of the description as a basis for satisfactorily identifying the map produced at the Wentworth Hotel meeting as Wiles Map 2. That submission was undoubtedly available and was made in the trial and addressed by the trial judge in her reasons. At no point did the submissions in this Court indicate what weight should have been given to the failure to produce the map to Mr Brook in the trial or, more importantly, how it should have affected the assessment of his evidence. The first complaint is without substance. 3. The second complaint in effect continued the submissions accompanying the first complaint, namely as to the adequacy of the description of the map as a basis for identifying Wiles Map 2. On the one hand, it was said that the description of the red hatched area as a "red or pink hatched area" to describe the most distinctive aspect of the map was misleading or misguided or inadequate. (The submission that it was "hardly distinctive when one thinks about mining maps" provided the court with little assistance as to what was to be inferred.) The fact that Mr Brook referred to it as containing the word "Bylong" but not the heading "North Bylong", and the statement that it had "no measurements with respect to the resource or anything about mining that I could tell" was also said to render the description manifestly inadequate. 4. The quotation relied upon came from Mr Brook's cross-examination. [136] However, the subject matter was obscure, the whole answer read as follows "[w]ell, the diagrams that they showed me, the maps that they showed me had no measurements with respect to the resource or anything about mining that I could tell. I didn't understand mining at the time". 5. The immediately preceding line of questions had dealt with "the topic of maps" and the description he had given to ICAC in relation to "any document relating to a tenement that was shown to you by Mr Moses Obeid or Mr Paul Obeid". [137] 6. Having said that he believed he could remember how he first described such a document to the ICAC, the cross-examiner then put his own words to him and asked if it was correct. The words put to him were: [138] "Q. But at some stage or another he must have given you some detail about what we are looking at in terms of the size of the mine and the quality of the coal? A. He – I do recall him giving me a printout of a tenement – of the tenement, but it was non-descript. It was just – it showed the boundaries." 1. There was no basis in the cross-examination to conclude that what was being described in the answer relied upon was Wiles Map 2. After some more specific questions, which assumed that there was a single document being described in the answer, Mr Brook conceded that he could not remember the document that he had been shown and was unable to answer specifically unless it were shown to him again. [139] This aspect of the criticism of the actual evidence was without substance. Whether the other omissions from the description of the document were significant was a matter addressed by the trial judge. Given the delay between the date of the meeting and even the date when Mr Brook last saw the Wiles Map 2, it is by no means clear that the omissions were significant. For someone like Mr Brook unfamiliar with mining maps and tenements, it seems entirely plausible that he would remember two names on the map which were close to the distinctive feature of the red cross hatching. It was the red cross hatching which indicated the area of the coal resource. The second criticism is without substance. 2. The third complaint was in slightly different terms, it related to the inadequacy of the description which Mr Brook had first given to the ICAC investigators in 2012 as a description of Wiles Map No 2. The two questions relied upon were as follows: [140] "Q. Now I want to suggest to you that at that compulsory hearing on 12 March 2012 you didn't say anything about any red shading; do you accept that? A. If it's in the transcript, Sir, I'll accept that. Q. And that you didn't say anything about North Bylong or Mount Penny, do you accept that? A. If it's not in the transcript, Sir, I accept that." 1. That passage refers to two omissions from the description of a document which was not clearly identified to the witness, as explained above, except by the fact that the answer given further up the same page of transcript to "the diagrams" and "the maps" had been reduced by the cross-examiner to "the document". The cross-examiner did not demonstrate that the document in question was Wiles Map 2, either to Mr Brook, or to the Court. The third criticism takes the matter no further. 2. The submissions for the appellant noted that Wiles Map 2 "was not a printout of a tenement, did not show boundaries of a tenement" and did not show "many exploration licences". One might have drawn the inference from that fact that the document which Mr Brook was describing to the ICAC investigator was not Wiles Map 2. 3. To the extent that the cross-examination was significant, the claim that the judge made no reference to it might be important. However, the brief cross-examination did not establish the point now sought to be relied upon. Ground 5(5) - warning as to unreliability of Mr Brook 1. The nature of this challenge was somewhat confusingly identified in the appellant's submissions. Two propositions, however, were clear: the first was that there were real problems with the reliability of Mr Brook's evidence; the second was that the problems affected the reliability of his identification of the Wiles Map 2. The evidence as to the map was described as having been treated by the prosecutor as "tantamount to … identification evidence", so as to require a warning "compliant with s 165 of the Evidence Act". Although the submissions commenced with the proposition that it was "unclear to what extent the trial judge gave herself a warning in relation to Gardner Brook's evidence despite accepting that it was appropriate to do so (and in one respect stating that she had done so)" [141] at other points it appears to have been accepted that she did give herself a warning but the warning was inadequate as to "the extent of the risks involved with the evidence in question". [142] 2. The trial judge dealt with the evidence of Mr Brook in several passages and at some length. The reasoning commenced with a heading, "[t]he issue of Mr Brook's credibility on the question whether Wiles Map 2 was produced at the second Wentworth Hotel meeting and more generally". That discussion ran from [1318] to [1331]. The judge returned to the question of "Mr Brook's credibility and reliability" in a passage from [1767]-[1780]. In the intervening 400 paragraphs, there had been frequent references to Mr Brook's evidence and to contemporaneous documents, including memoranda and emails. There is no doubt that the judge understood the significance of Mr Brook's evidence, particularly in relation to the fourth and fifth acts of misconduct and also understood the strength of the challenges to his credibility and reliability. As the judge noted: "1318 As the only witness to give evidence of seeing Wiles Map 2 at any time earlier than the execution of the Locaway P/L search warrant in November 2011, and the only witness to give evidence of the use to which that map was put by Moses Obeid and his brothers at the second Wentworth Hotel meeting (inter alia to describe the proximity of the area they anticipated would be covered by the grant of an EL relative to the adjacent or contiguous area that they understood to contain a potentially more valuable coal resource) Mr Brook's evidence was critical to proof of the fourth act of misconduct. 1319 His evidence was also critical, but not essential, to proof of the seventh, eighth and ninth acts of misconduct. On the Crown case, he was the recipient of the confidential information the subject of each of those acts of misconduct (in each instance information he said was given to him by Moses Obeid). He also gave detailed evidence as to how the information the subject of the those acts of misconduct was deployed by him (as he claimed on Moses Obeid's behalf) in his dealings with Monaro Mining NL." 1. Despite the importance of this topic to the case of the appellants generally, there is limited benefit in setting out the detail of the submissions. Thus, criticisms that the judge did not deal with an issue at one point in her reasoning are in several cases answered by the fact that she dealt with it expressly in another passage. For example, in dealing with the second passage referred to above, the submissions stated that "[w]hile it was not stated by her Honour, the evidence [of unreliability] included inter alia", followed by a list of five matters. Given that the evidence referred to was identified by the trial judge at other points in her reasons, the submission was unhelpful. 2. The following passages in the judgment are relevant in this respect: "1321 In closing submissions, the Crown invited me to be 'cautious' in my assessment of Mr Brook's credibility and reliability. In that connection, the Crown referred, in particular, to the effects of a frontal lobe contusion as the result of a head injury Mr Brook suffered in 2010 which he claimed had caused issues with his memory in the past but from which he had completely recovered by the time he gave his evidence. The Crown also referred to Mr Brook's use and abuse of alcohol which continued through to 2016. The Crown also accepted that, in the course of giving evidence in the Federal Court in April 2016, Mr Brook admitted he was prepared to lie when it suits his purposes to do so. … 1768 In his cross-examination of Mr Brook, Mr Neil sought to characterise him as a notoriously dishonest individual. Mr Brook accepted that he dishonestly misrepresented the quality of his tertiary qualifications to Moses Obeid by claiming he was a graduate of the University of Chicago Booth School of Business. He also accepted he published a false curriculum vitae and would, on occasions, make false statements in the context of trying to persuade a person or organisation to do business with him. 1769 He also admitted that he (more than likely) told deliberate lies to the Winslow Clinic when he told them he had stopped drinking alcohol as at 13 October 2012 since his problematic drinking continued well after that date. He also agreed that whilst he was under the influence of alcohol (which he accepted was frequent to the point of chronicity during the course of his dealings with Moses Obeid - and it must be assumed in the course of his dealings with Mr Rampe, Mr Grigor and Cascade Coal P/L) he quite often told deliberate lies. 1770 He also agreed in cross-examination that he might have been drunk during the course of at least one of the Wentworth Hotel meetings. He did not, however, admit to telling any lies in either of the meetings; neither was it put to him that he did." 1. These passages refer (though in less detail than that provided in the written submissions of the appellant) to each of the five matters identified as not having been "stated by her Honour". 2. With respect to the proposed warning, the judge stated: "1322 In the ultimate, however, the Crown resisted the submission advanced by defence counsel that I should give myself a warning under s 165 of the Evidence Act (in the manner provided for in s 133 of the Criminal Procedure Act where I am sitting without a jury). The Crown submitted that what I would find as generalised concerns about Mr Brook's reliability, and the need for caution in determining whether to accept his evidence did not ultimately diminish the weight I should give his evidence in circumstances where it was, in large part, independently supported by the evidence in Exhibit A. 1323 The Crown also resisted the submission advanced by defence counsel that I should give myself a direction akin to a warning about the unreliability associated with identification evidence in s 165(1)(b) of the Evidence Act (in this case the identification of an inanimate object) as concerns Mr Brook's evidence about the larger map he said he was shown at the second Wentworth Hotel meeting, despite his description of that map being critical to the Crown case that the larger map was Wiles Map 2, a finding of fact critical to proof of the fourth act of misconduct. 1324 As I observed from time to time during the course of the trial, the parties have had to contend with the fact that there was an extensive investigation by ICAC of Mr Macdonald's conduct as Minister and the conduct of Edward Obeid and Moses Obeid as landowners by at least November 2011 when the search warrant was executed by ICAC investigators at the Locaway P/L premises. That investigation ultimately culminated in both public and private hearings in 2012 presided over by the Hon David Ipp AO QC as the ICAC Commissioner. In those proceedings the rules of evidence did not apply. In the result there was no prohibition on counsel assisting asking leading questions or inviting witnesses to comment upon the evidence of other witnesses or indeed asking a witness to direct their attention to what the Commissioner wanted a particular witness to give evidence about. I have had occasion to remark upon the impact of those proceedings upon curial trial process in the Crown's application to tender the evidence of Mr Fang. I have also noted the content of some of the leading questions asked by counsel assisting the Commissioner and the Commissioner himself when considering the weight to be attributed to the Crown's cross-examination of Mr Mullard with leave under s 38 of the Evidence Act referable to evidence he gave before ICAC. 1325 There can be no doubt that on 8 March 2012 when Mr Brook was served with a summons to attend a compulsory examination at ICAC he was aware that he was under investigation. He gave evidence of that fact and the fact that he saw Mr Fox as someone who had the capacity to influence the outcome of what he described as 'his future' with respect to how the Commission viewed his evidence. Although Mr Brook claimed no recollection of a telephone conversation with Mr Fox on 18 May 2012 (after he had given evidence in the private hearing) in which he enquired whether he was in ICAC's 'gunsights' and where he offered himself as an 'ally', I accept that conversation occurred. 1326 The evidence also establishes that on 6 August 2012 Mr Brook again spoke with Mr Fox indicating that he had further information to assist the Commission, in the course of which he described the Obeids as 'corrupt' and that 'they knew the 'Cascade guys'' and, further, that on 15 December 2012 Mr Brook emailed Mr Fox stating, 'I want to help as much as I can to nail these crooks'. 1327 I am of the view that Mr Brook's 'improved' memory of the second Wentworth Hotel meeting, in particular between giving evidence in the private hearing in March 2012 and giving evidence in the public hearing in November 2012 in circumstances where, in the interim, he was interviewed by Mr Fox at length, does warrant giving myself a warning of the risks that are attendant upon an investigator, even with the best intentions, suggesting to a prospective witness the information that person might provide. That applies most obviously in the case of a witness who is either vulnerable to suggestion or inclined to take up a suggestion offered to them, whether in doing so they are motivated by a genuine desire to assist investigators or to ingratiate themselves with investigators. Each of those scenarios was potentially at work in Mr Brook's dealings with Mr Fox. 1328 Having given myself that warning, what seems to me to be significant in determining the weight to be given to Mr Brook's evidence concerning the 'larger map' produced at the second Wentworth Hotel meeting, is his unprompted reference to the 'contiguous area' on the map when he was interviewed by Mr Fox, after the private hearing and before that issue was pursued by counsel assisting in the public hearing some months later. The evolution of that aspect of his evidence, without any prompting or suggestion from Mr Fox, in my view, goes some considerable distance in resolving the concerns I would otherwise have had about the way Mr Brook's evidence concerning Wiles Map 2 was gathered during the course of the investigation, including various promptings given both by the investigators and later by counsel assisting the Commissioner about that map and its distinctive features, and the impact of their promptings upon the reliability of Mr Brook's evidence at the trial concerning the map. 1329 In the result, while there was a real risk of Mr Brook's memory being contaminated by what he was told about the larger map, including, most critically, being told by counsel assisting that both Wiles Maps 1 and 2 were located in the course of the execution of a search warrant at the Obeids' commercial premises in 2011 and that, in the view of counsel assisting, there were distinctive features of the larger map, coupled with the particular danger that Mr Brook's memory of having seen the map was promoted by those suggestions or even a false memory asserted, I regard his evidence of what was said at the second Wentworth Hotel meeting about the contiguous or adjacent area or zone referable to the red coloured hatching in the shape of the sideways S-shape as reliable and ultimately compelling evidence probative of the fact that he was shown Wiles Map 2 at the second Wentworth Hotel meeting." 1. Further matters were then put to one side for later consideration: "1330 Mr Neil also cross-examined Mr Brook at length about his dealings with Moses Obeid from 3 July 2008 when they were first introduced by Mr Selby, a mutual business contact, through the course of his dealings with Monaro Mining NL from 16 July 2008 until May 2009 (as he claimed in his evidence effectively on behalf of Moses Obeid) and in the course of his dealings with Cascade Coal P/L (also as he claimed in his evidence on behalf of Moses Obeid); and ultimately the terms upon which he divested his interest in Buffalo Resources P/L in the transactional phase of the Cascade Coal P/L joint venture. In the course of Mr Neil's extensive cross-examination of Mr Brook, his veracity and his reliability was frequently under challenge. I will reserve considering those challenges until I have reviewed and analysed Mr Brook's evidence in the context of other facts in issue in the trial." 1. The judge returned to the issue in a lengthy consideration in chronological order of the various steps taken from the time Mr Brook was introduced to Mr Moses Obeid on 2 July 2008 through to the end of his dealings with Cascade Coal in September 2010. The events after a third meeting with Cascade Coal on 1 June 2009 [143] were not important. Further, the attempt by Mr Brook to have his employer, Lehman Brothers, fund the Monaro Mining proposal through a scheme which had been rejected by Mr Brook's superior in Lehman Brothers on 23 July 2008, through to the collapse of Lehman Brothers on 15 September 2008 was suggestive of a degree of duplicity, but was not treated as a basis to disbelieve his evidence at the trial. 2. The appellant had submitted that, consistently with authorities on the identification of an object or thing of importance to the prosecution, the judge was required to give herself a warning in accordance with s 165 of the Evidence Act. There is no doubt that the judge was conscious of that submission, noting in a footnote to [1323] that counsel for Mr Moses Obeid had drawn her attention to the principles stated in Fennell v The Queen [144] "where the Court acknowledged the fallibility and plasticity of memory and the possibly of contamination of recollection and the influences of internal bias on memory and R v Clout [145] where Kirby ACJ addressed the need … for the jury's attention to be drawn to those considerations where the evidence was not 'peripheral'." The same authorities (with the addition of Domican v The Queen [146] ) were identified in the written submissions as the basis for the contention. The matters about which it was said that the judge ought to have warned herself in relation to Mr Brook's evidence were: "a. the fallibility of human memory; b. the risks of convicting persons upon the basis of identification evidence and the injustices which have occurred in the past from such mistakes; c. the danger of contamination of memory by facts later discovered; d. the high importance of securing an early record of the uncontaminated recall of the witness before the passage of time to prevent later elaboration or distortion in the retelling of the event; e. the specific danger that memory may sometimes become enlarged (even quite innocently) to include matters which the observer expects, or is expected to recall; f. the general concerns as to the credibility and reliability of Gardner Brook (particularised in submissions); and g. the specific concerns about Gardner Brook's evidence as to the map (particularised in submissions)." 1. In introducing those matters, the submissions stated: [147] "What is clear is that the Trial Judge did not give herself any specific warning of the kind contended for by the Appellant…" 1. That was simply not true. Not only did the judge expressly accept the principle stated in the cases identified above, but she dealt at some length with questions of reliability and credibility, as explained in the passages set out above. In particular, the dangers of contamination were discussed. Ruling of trial judge 1. First, three factors should be noted regarding warnings to be given in relation to "unreliable evidence". Section 165(2) requires that a warning is to be given to a jury that evidence may be unreliable, to inform the jury of the matters that may cause it to be unreliable and warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it, if there is a jury and the party so requests. The obligation under s 165(2) is extended to a judge alone trial by s 133(3) of the Criminal Procedure Act. It is apparent from the written submissions filed for Mr Moses Obeid that such directions were sought. [148] 2. Nevertheless, the obligation to comply is not engaged if "there are good reasons for not doing so": s 165(3). Further, no particular form of words is required in giving warning or information: s 165(4). The judge recognised that, despite the submissions, s 165(1)(b) was not engaged: this was not "identification evidence" as defined in the Dictionary to the Evidence Act, which was why the judge referred to "a direction akin to a warning about the unreliability associated with identification evidence". While the matters set out in s 165(1) do not exclusively state the forms of unreliable evidence to which the section applies, evidence identifying an accused person has long been a special concern of the law of evidence. 3. That the judge was alert to the possible need for a warning is clear, not merely from the headings to the sections in the judgment identified above, but also from the content of the reasons. The judge had considered, at [1322] set out above, the request by defence counsel for a warning "under s 165 of the Evidence Act (in the manner provided for in s 133 of the Criminal Procedure Act where I am sitting without a jury)". In noting resistance to giving herself "a direction akin to a warning about the unreliability associated with identification evidence in s165(1)(b) of the Evidence Act (in this case the identification of an inanimate object)" being the Wiles Map 2, the judge noted the difficulties arising from both potential contamination and the willingness of Mr Brook to act against the Obeids. As that appeared to give rise to an "improved" memory of the second Wentworth Hotel meeting, the judge gave herself a warning (at [1327]) of the risks "that are attendant upon an investigator, even with the best intentions, suggesting to a prospective witness the information that person might provide". The judge further noted that the warning had special meaning in the case of a witness "who is either vulnerable to suggestion or inclined to take up a suggestion offered to them, whether in doing so they are motivated by a genuine desire to assist investigators or to ingratiate themselves with investigators". The judge also noted that although on one view Mr Brook might have been seen to be a co-conspirator, that case was not pursued by the prosecution and the judge noted that the accused did not seek a direction under s 165(1)(d) of the Evidence Act with respect to a witness "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding". [149] 4. In numerous ways, some of which have been identified above, the judge rejected much of Mr Brook's evidence as unreliable or disingenuous. However, Mr Brook himself accepted that he had been dishonest in numerous respects. [150] He agreed that he might have been drunk in the course of one of the Wentworth Hotel meetings, but did not admit to telling lies in either of the meetings, "neither was it put to him that he did". [151] The judge made further adverse findings in the following terms: "1773 In my view, Mr Brook was, at all times in his dealings with various individuals and entities the subject of his evidence at the trial, motivated to secure the best possible financial outcome for himself as he endeavoured first to broker an arrangement between Moses Obeid (ostensibly representing 'the landowners') and Monaro Mining NL despite the obvious and dwindling prospects of attracting a financial investor to back Monaro Mining NL's bid, and then as he negotiated the withdrawal of Monaro Mining NL's bid and the entre of Cascade Coal P/L as the contracting party with Buffalo Resources P/L. That is not to suggest his financial motives make him an unreliable witness. Rather, it was his steadfast refusal to admit the venality of his motivations and his duplicity in his dealings that is adverse to his credit. 1774 I am also satisfied that Mr Brook continued to repeatedly and deliberately misled the executives of Monaro Mining NL and through them the Board of Monaro Mining NL after Lehman Brothers collapsed and after he persuaded the company to enter into an exclusive consultancy agreement with him so that he might continue to work to attract the necessary financial backing from foreign investors to enable Monaro Mining NL to pursue its application for an EL at Mount Penny. It is adverse to his credit that throughout the term of that consultancy agreement he again positioned himself to maximise the continuity of his relationship with Moses Obeid, and what I am satisfied must have been Moses Obeid's promise of a financial stake in the outcome, even if there is no direct evidence of it, at the expense of Monaro Mining NL to whom he owed contractual fealty under the consultancy agreement." 1. After referring to his "capacity for mendacity" and the "patent evidence of his duplicity", [152] the trial judge then concluded: "1777 That is principally because in proof of the facts that are in issue in the trial, namely the existence of the conspiracy and the participation of each of the accused in that conspiracy, the Crown only relied upon aspects of Mr Brook's evidence which I am satisfied are sufficiently supported by evidence, largely documentary evidence, independent of his testimony. That is not to say the Crown did not adduce evidence from Mr Brook where the documentary evidence would have been a sufficient basis to establish a course of contractual negotiations in which either or both of Monaro Mining NL or Cascade Coal P/L were engaged. It is merely to emphasise that his evidence was of critical importance to the Crown case where the documentary evidence, for one reason or another, did not reveal the complete course of the dealings in which Moses Obeid was intimately involved from mid-July 2008 with Monaro Mining NL, through to and extending beyond the timeframe of the conspiracy, as Moses Obeid continued to pursue the financial rewards he must be taken to have expected were inherent in the granting of an EL at Mount Penny to a mining company with whom he and his family would be contractually bound, even if at that time the quantum and the realisation of those rewards were contingent upon coal being discovered after the granting of a licence to that mining company. 1778 As I have already emphasised, Mr Brook's evidence was critical in proof of a number of other critical issues, including: (a) His evidence concerning the large map that was produced at the second Wentworth Hotel meeting on 7 July 2008, on the Crown case Wiles Map 2, and which was the subject of animated discussion in which Moses Obeid actively participated. That evidence was critical in proof of the fourth act of misconduct which, for the reasons given, I found established. (b) His evidence that Moses Obeid provided him with the handwritten list of companies two days after that meeting which facilitated his approach to Monaro Mining NL, on the Crown case a list that was compiled by Moses Obeid after having been provided with the list (or the information on it) by Mr Macdonald. That evidence was critical in proof of the seventh act of misconduct which I also found established. (c) His evidence that Moses Obeid provided him Schiavo Map 3 and on the page with the heading Medium Coal Allocation Areas, critical to proof of the eighth act of misconduct which I also found established. (d) His evidence that Moses Obeid was the source of information that the EOI process was being reopened to allow the 'White Group' of companies (including Cascade Coal P/L) in proof of the ninth act of misconduct. Although I did not find that act of misconduct established, Mr Brook's evidence provided the context in which I am satisfied Cascade Coal P/L entered into the EOI process for the grant of an EL at Mount Penny and the basis upon which I am satisfied Moses Obeid initiated commercial dealings with them." Conclusions as to warnings 1. As has been discussed above, compliance with the obligation under s 133(3) of the Criminal Procedure Act may be established, not merely by the statement of a warning, but by passages in the reasons which demonstrate explicitly that such warnings were taken into account. 2. Criticism that a statement as to how issues of unreliability have been taken into account after reaching critical findings is to put the cart before the horse, should not be accepted. It is, of course, true that warnings must be stated to a jury, both in abstract terms and by reference to the specific evidence, all of which will precede consideration and determination by the jury. A judge giving a reasoned decision, however, may approach the matter in a different way. To describe the process in advance may attract criticism that the judge has undertaken a box ticking exercise; to explain a process of reasoning in reaching findings which have already been set out may attract criticism as justification after the event. Neither criticism is necessarily correct. As has already been noted, in seeking to address all relevant matters in an orderly fashion, the judge frequently adopted a sequential approach with pauses to summarise the stage reached and where the reasoning was about to go. 3. With respect to the unreliability of Mr Brook, the judge properly had regard to all the issues, addressed the manifold criticisms of Mr Brook's evidence, applied the necessary degree of scepticism and detachment required by the warnings, and explained the process of reasoning. Further, as noted above, the obligation under s 165(2) is qualified, allowing for (indeed, requiring) the exercise of discretion. Subject to consideration of the final criticisms of the judge's findings with respect to the fourth act of misconduct, sub-ground 5(5) must be rejected. Ground 5(6) - basis of finding as to Wiles Map 2 1. Again, the nature of the ground was articulated only in the written submissions. Their focus was upon the finding in the following passage in the judgment: "1328 Having given myself that warning, what seems to me to be significant in determining the weight to be given to Mr Brook's evidence concerning the 'larger map' produced at the second Wentworth Hotel meeting, is his unprompted reference to the 'contiguous area' on the map when he was interviewed by Mr Fox, after the private hearing and before that issue was pursued by counsel assisting in the public hearing some months later. The evolution of that aspect of his evidence, without any prompting or suggestion from Mr Fox, in my view, goes some considerable distance in resolving the concerns I would otherwise have had about the way Mr Brook's evidence concerning Wiles Map 2 was gathered during the course of the investigation, including various promptings given both by the investigators and later by counsel assisting the Commissioner about that map and its distinctive features, and the impact of their promptings upon the reliability of Mr Brook's evidence at the trial concerning the map." 1. The submissions were two-fold. First, it was said that the trial judge "appeared to satisfy herself of the reliability of Gardner Brook's description of the map based on a single fact", namely the reference to the contiguous area referred to in the first sentence. Secondly, her reliance on that matter was said to be "objectively wrong and manifestly inconsistent with the Crown case". 2. Neither of these criticisms is easy to understand. The matter was dealt with in the course of oral submissions, with little by way of explication. Senior counsel for Mr Moses Obeid stated: [153] "It's contiguous in the sense of the mineral geology and contiguous in the sense that there's an artificial boundary which placed part of that resource adjacent to another part of the same resource geologically but across a boundary. Now … what is not available in the evidence is any reference as to how a reference to contiguous in the only sense that in mining would make plausible – would have a plausible application in this vicinity, where there were other pediments [sic] and they weren't necessary always wholly containing just one geological resource, was never explained as to how that enabled a satisfaction that Mr Gardner Brook … was able to, indirectly in that sense, identify Wiles 2." 1. The appellant submitted in writing: [154] "The term 'contiguous area' was used where a miner had a licence over one particular area (area A) and the coal resource continues into an adjoining, adjacent or 'contiguous' area (area B) … There was evidence that, in certain circumstances, the DPI would grant a miner a licence over an area that was adjacent or contiguous to that miner's interest e.g. where it was a small area or where the extension of the mine was needed to keep the mine going and the workforce employed." 1. The support for these propositions was evidence given by Harold Bowman, who was called by the prosecutor. The relevant passage in Mr Bowman's evidence was as follows, commencing with a question as to what the term "contiguous" meant to him: [155] "A. It means that a coal resource, whether it is opencut or underground, continues into adjoining areas, using the same parameters in the area that you're looking at. They can be thickness, they can be opencut or underground, it can be coal quality. But contiguous means that it continues [sic] and there is no geological reason that it doesn't continue. Q. You have talked about geological reasons. Are there any reasons in relation to leases that would mean it would not continue? A. It could still be contiguous. Just because someone has got a lease alongside it, it doesn't mean it is not contiguous. It means the coal deposit itself is contiguous but the lease means it's not available. The other things that would constrain deposits are National Parks, significant infrastructure, things like that. But a deposit can be contiguous with an area held under title by someone else, yes. Q. During your tenure at the Department, were contiguous areas treated differently in terms of allocation? A. They generally were. If they were smallish areas, they were allocated to the body that held the title. So an existing mine, if there was a contiguous area alongside it and it was relatively minor, they would give priority to the existing mine in getting that area. Q. And were there reasons for that departmental policy? A. The policy was you got a mine operating, why not keep it going? So rather than start up a new mine and have an existing mine close, you are better off keeping an existing mine open." 1. If by characterising the evidence of Mr Brook as "objectively wrong" the appellant meant that he was not using the term as a miner would, the criticism is misconceived. First, Mr Brook gave evidence that, in his first conversation with Mr Moses Obeid he had told him in answer to his question that he did not have any experience in natural resources. [156] He also said that in the first interview Mr Moses Obeid referred to it as "thermal coal" and said "that meant nothing to me at the time …. I didn't understand anything about natural resources or coal". [157] There was therefore no reason to assume that Mr Brook was using the term "contiguous" in the way that a member of the Department of Primary Industries would have used it. 2. Secondly, in the evidence to which the judge was referring, being an interview conducted with Mr Brook in private session at the ICAC on 28 November 2012, [158] Mr Brook had marked an area on a map as being an area indicated by Moses and Paul Obeid at the meeting: "A. They indicated that the area, the area to the west… the contiguous area, they believed through their sources, and they were those words, was much more coal rich than this initial area. Q. And did they indicate that that area to the west, the contiguous area did they indicate whether it was likely that they would ever be open or what they knew about that? A. What they told me was that – and again at that time I knew nothing about mining or resources – they told me that once you start mining a particular area you have to apply for any contiguous areas, however the likelihood of being granted the contiguous area is very high. So instead of 100 million tonnes they were talking 700 to a billion tonnes." 1. It was correct, as the trial judge noted, that no part of the prosecution case involved a suggestion that the Obeid family would obtain access to any coal reserves beyond those under the proposed exploration licence. However, there is no reason to support that the trial judge misunderstood that aspect of the evidence. 2. It was also submitted that there was an inconsistency between Mr Brook's evidence in this respect and the evidence of Mr Grigor, who was a director of Monaro Mining in 2008. Mr Grigor was asked whether he understood there to be a "contiguous area in respect of the Mount Penny" [sic]. [159] He said that there had been a discussion of contiguous rights when the possibility of Chinese parties was raised. [160] That was some time after the second Wentworth Hotel meeting. However, the second Wentworth Hotel meeting did not involve Mr Grigor: rather there was an unexplored inference that had there been a discussion of a much larger body being involved, one would expect that to have been raised with Monaro Mining. 3. This Court was not taken to any attempt to explore that issue with any witness. Raising the matter as a possibility on appeal does not assist in demonstrating that the judge's finding was not reasonably open. 4. This aspect of the factual challenge must be rejected. The possibility of a second map 1. Because Mr Gardner Brook referred to the concept of a "contiguous area" with respect to "another map that was never produced in evidence" there was a "clear prospect of there being another map or alternatively that the Wiles Map was not obtained until sometime in 2009 in a way unrelated to Macdonald". [161] 2. As the appellants noted, the issue was not overlooked by the trial judge but was identified in the following passage: "1300 In cross-examination, Mr Brook gave evidence that the document which appears in Exhibit A as an attachment to the agreement with Cascade Coal P/L was not the map which was originally attached to the agreement. He recalled that the map originally attached to the agreement was in colour, that it contained 'red and yellow' shading, and that it showed 'the S on its side shape type area'. As submitted by Mr Neil in closing, the Crown did not produce that map. Neither did the Crown discount the reasonable possibility that it was that map that was shown to Mr Brook at the second Wentworth Hotel meeting." 1. The appellants asserted that the judge did not return to that issue. Nor, in noting the fact that it had been raised in the written submissions for Mr Moses Obeid did the judge indicate what its significance was. The paragraph in the submissions appeared under a heading "Wiles Map 2 not shown to Brook". A number of points were raised under that heading in support of the proposition that the prosecutor had not proved that Wiles Map 2 was shown to Mr Brook. The submission was in these terms: [162] "The Crown did not produce the map and did not produce any evidence that would establish that it was not this map that was shown to Brook at the second Wentworth meeting." 1. Both the cross-examination of Mr Brook on this topic and the submission were speculative and raised no significant basis for disputing Mr Brook's evidence as to the map he had seen at the second Wentworth Hotel meeting. 2. The document Mr Brook was shown was annexed to a letter to him dated 5 June 2009 from Cascade Coal and executed as an agreement by Mr McGuigan for Cascade Coal and Mr Brook for Buffalo Resources Pty Ltd. The text of the letter proposes a joint venture with respect to the Mount Penny coal release area and stated that: "In addition the JV will pursue the grant and issue of relevant Exploration Licences and Mining Approvals over the area contiguous to the Area and detailed on the attachment hereto currently known was EL 6676 or any portion thereof ('contiguous area')." 1. Mr Brook denied that the map which appeared in the appeal book was the appendix to the original Buffalo Cascade document. The answer was at least plausible. It is difficult to identify in the document produced to this Court any reference to EL 6676. The thrust of the cross-examination moved from the identification of the document to the intended meaning of "contiguous area". The cross-examiner asked: [163] "Q. Did it show the Anglo area exploration licence or authorisation, the word is used interchangeable? A. Yes, I believe it did, but more specifically for our purposes, it showed the areas to which we were referring to [sic] in the document about contiguous areas to the Mount Penny exploration licence. Q. Meaning the Anglo area because it was contiguous? A. No. The Anglo area, Sir, is adjacent to the east. I am referring to the contiguous area east – sorry, west and north-west, in the S on its side-shape-type area. That was always stage 2. From day one I have been referring to this as being stage 2 of a potential transaction." 1. It was a proposition put in the defence case that Mr Moses Obeid understood references to the "contiguous area" to mean small areas under Cherrydale Park which were contiguous to the western-most boundary of the Anglo authority. 2. The cross-examiner did not establish the existence of a second map, which would have supported the speculation put in closing submissions. 3. The complaint that the judge made nothing of the written submissions does not establish that the finding in relation to the Wiles Map 2 was not open to her. Sub-ground (6) must be rejected. Absence of evidence on question of maps 1. The gravamen of this complaint was that Mr Paul Obeid, who was present at the second meeting at the Wentworth Hotel, was not called by the prosecutor. Further, Mr Gerard Obeid was not called, although the map had been found in Mr Paul Obeid's office in an envelope marked "to be collected Gerard Obeid". [164] Finally, the appellants noted that no evidence had been called from anyone from Cascade Coal with respect to identifying the map attached to the agreement in 2009, the subject of the last sub-ground. Emphasis was placed however, on the absence of Mr Paul Obeid "who had possession of the map shown to Gardner Brook (whatever map that was) and the version of Wiles Map 2 seized in his office in November 2011". The absence of these witnesses, and in particular Mr Paul Obeid, was used to challenge the finding that the judge was satisfied there was no reasonable possibility that the map was obtained by him from any other primary source than Mr Macdonald. [165] 2. This matter was the subject of consideration in relation to ground 3(4). No different issue arises with respect to this ground. Ground 5(7) – finding that eighth act of misconduct proved 1. The eighth act, said to have occurred on or after 23 July 2008, alleged that Mr Macdonald caused a member of the Obeid family to be provided with a single page memorandum headed "Medium Coal Allocation Areas" and a map titled "Proposed Coal Release Areas for EOIs" prepared by Mr Fred Schiavo and dated 21 July 2008. [166] 2. The judge's discussion of this issue commenced when dealing with the sixth act of misconduct. The sixth act of misconduct involved a period of some 4-5 weeks prior to 23 July 2008 and an allegation that Mr Macdonald communicated to the Obeids that the EOI process for Mount Penny would commence at the end of July 2008. The judge rejected that particular on the basis that she was not satisfied that, consistently with the prosecution case, Mr Macdonald would have caused misleading information to be sent to either Mr Obeid Snr, or Mr Moses Obeid. The judge concluded that by 7 July 2008, Mr Macdonald was aware that "the EOI package for small and medium areas, including Mount Penny, would be prepared by 21 August 2008 and that Mount Penny would be released to EOI in November 2008". [167] 3. Significantly, however, the judge accepted that there was a meeting held at the Minister's office on 17 June 2008 attended by Mr Macdonald, Mr Gibson, Mr Mullard and Ms Romano. [168] Further: "1070 Mr Gibson gave evidence that 'Mount Penny' was discussed at this meeting as 'one of the areas' to be included in the EOI process for 'small to medium' coal release areas. He said Mr Macdonald indicated that he wanted the process for the release of these areas to be prepared 'as soon as possible'." 1. A map which had been prepared by Ms Moloney and sent as part of the Ministerial Briefing on the previous day (16 June) included a coal release area headed "Mount Penny" and described as an "estimated opencut resource of 100Mt". [169] This was the point at which the first mapping of what became EL 6766 was produced: "1063 It is not in dispute that by 16 June 2008, the potential open cut coal resource represented by the sideways S-shape on Wiles Map 2 had been reduced in size to create a small to medium coal release area in the east of the Bylong Valley. At least from the Department's perspective, it appears that Area 7 was 'created' as part of the process of Ms Moloney identifying further small to medium release areas for inclusion in the proposed EOI process at Mr Mullard's request in response to Mr Macdonald's 'strong suggestion' that the Department explore the possibility of excising a smaller area 'to the east' of the potential open cut coal resource in Wiles Map 2." 1. Importantly, given the nature of the process, the judge observed: "1086 It should be emphasised that although Cherrydale Park and the neighbouring rural properties of Donola and Coggan Creek are physically located within the boundaries of the Mount Penny Coal Release Area as is obvious from Mr Whiddon's map at par 552 above, neither in Diagram X nor in the other renderings of the Mount Penny Coal Release Area included as 'shape files' in DPI briefing notes or internal Departmental correspondence, was there any reference to or indication of the surveyed boundaries of the three rural properties. Furthermore, there is also no evidence that the DPI formally advised the registered owners of Cherrydale Park, Donola or Coggan Creek that it was proposed that their properties would be included within a newly designated coal release area or that the Minister for Mineral Resources was considering incorporating a newly designated 'Mount Penny Coal Release Area' in a closed tender process for the issue of a coal EL which would directly impact their properties." 1. After concluding that she was not satisfied that the sixth act of misconduct was established, [170] the trial judge continued: "1155 I am satisfied, however, that at some time after 17 June 2008 Mr Macdonald did update the information that was at hand after the 6 June 2008 meeting by informing either or both of Moses Obeid and Edward Obeid that a new coal release area in the Mount Penny area had now been identified by the DPI and that it would be included in an EOI process for the granting of an EL. That information alone conferred a significant benefit to the Obeids. Although not particularised by the Crown as an act of misconduct from which the existence of the conspiracy might be inferred, I am satisfied that by Mr Macdonald effectively confirming to Edward Obeid or Moses Obeid that a coal release area at Mount Penny would be included in an upcoming EOI process (irrespective of the precise date on which that process would commence) he was providing, indeed continuing to provide, valuable information which, in the context of whether the remaining acts of misconduct alleged by the Crown are established, is probative of the critical question whether any one or more of the four remaining acts of misconduct (being the fourth and the seventh to ninth), taken together with the first and second acts of misconduct, allows me to find the existence of the conspiracy proved beyond reasonable doubt." 1. The judge then referred to the retaining of Mr Rumore, as solicitor to act for the Obeid family: "1156 On 23 June 2008, Mr Rumore, solicitor, was retained, initially by Paul Obeid and Gerard Obeid, to advise on a suitable commercial structure for a joint venture in which 'the Obeids', as owners of Cherrydale Park, and 'the Boyds', as property developers associated with Pace Developments, would acquire the properties adjoining Cherrydale Park (clearly Donola and Coggan Creek) with a view to exploiting the possibility of 'coal leases' being granted encompassing all three properties 'once [an] EOI issues' (as to which no time frame was mentioned), and to enable them as parties to the joint venture to negotiate to sell the properties at a multiple of their value in the event a 'coal lease' was granted." 1. On 30 June 2008, Mr Moses Obeid attended a meeting at Mr Rumore's office introducing Mr Fang of the Tianda Group as a replacement for the proposed arrangements with the Boyds. [171] "1164 On 30 June 2008, Moses Obeid attended a meeting with his brothers at Mr Rumore's offices. As noted earlier, from that time Moses Obeid was also treated as Mr Rumore's client in the sense that he treated instructions from one of the Obeid brothers as instructions from all three. Mr Fang of the Tianda Group also joined the conference after a preliminary conference between Mr Rumore and his clients. 1165 On that occasion, Mr Rumore was informed by Moses Obeid that the prospective arrangement with the Boyds, discussed with his brothers a week earlier, was not proceeding and that the Tianda Group would be the new contracting party. A new commercial structure was proposed. It included a special purpose vehicle incorporating a unit trust, under which a 40% interest in the two properties to be acquired would be held by the Obeids and 60% by Tianda Resources P/L.[1096] The purchase price for both properties was to be advanced by the Tianda Group.[1097] The agreement reflected an intention that, together with Cherrydale Park, the two additional properties purchased under the unit trust would be purchased by an 'offshore company'[1098] and 'developed together for coal'[1099] and that 'Tianda Coal (Australia) P/L' would 'bid for [a] coal lease'. … 1170 Although not submitted expressly, as I understand the Crown case, Mr Macdonald introduced Mr Fang and Moses Obeid at a time when the Obeids' interest in exploring the prospect of a joint venture with a mining company had been piqued by Mr Macdonald providing them with information about the creation of the Mount Penny Coal Release Area after the 6, 16 and 17 June 2008 meetings. The Crown relied on what it described as the 'coincidence of contact' between Mr Macdonald, Mr Fang and Moses Obeid in this timeframe to support proof of the fact that it was Mr Macdonald who made the relevant introduction and for that purpose." 1. The trial judge then outlined the "periods of concentrated communication (or assumed communication) between each of the accused and Mr Fang during that period", identifying 3 June, 4 June (being the date of a meeting between Mr Macdonald and the Department) and 6 June (being the day of another meeting between Mr Macdonald and the Department) and then numerous communications, virtually daily, from 26 June through to 4 July, including up to 20 communications per day. [172] 2. The trial judge considered and rejected a submission by counsel for Mr Moses Obeid that Mr Fang and Mr Moses Obeid knew each other prior to the conference on 30 June and that Mr Fang was not introduced to Mr Moses Obeid by Mr Macdonald. [173] 3. Turning to the eighth act of misconduct identified by reference to the period from 23 July, the judge summarised the situation leading up to that period in the following terms: "1563 As the preceding analysis makes clear, late July 2008 and the months that followed was a period of intense activity for Mr Brook, as he continued to search for a financial partner for the proposed deal between the Obeids as landholders and Monaro Mining, while simultaneously Moses Obeid (together with his brothers) was instructing Mr Rumore on the execution of the Share Option Deed. In the same period, the DPI continued its preparations for the launch of the EOI Information Package ahead of the public announcement of the EOI process on 9 September 2008. 1564 From 21 July 2008 onwards, Mr Schiavo, Senior Land Information Officer within the Titles and Systems section of the DPI,[1676] was tasked with preparing various maps in relation to the EOI process." 1. The events of 23 July commenced with a briefing paper prepared by Ms Moloney identifying the issue as "Ministerial approval to release Expressions of Interest packages for coal allocation areas". [174] It included the Schiavo Map 3. [175] As the judge noted, Mount Penny was one of four "medium coal allocation areas", being "the only one … in the Western Coalfield". [176] There were eleven small to medium areas released for tender on 9 September 2009. Schiavo Map 3 is annexure B to these reasons. [177] 2. The Ministerial Briefing was emailed to Mr Gibson on 28 July 2008. [178] As to receipt by the Minister, the trial judge made the following finding: "1574 Mr Mullard gave evidence that when a Ministerial Briefing was sent (as this one was) to the Minister's office from the Department, he would customarily see a copy before it was sent. He could not say whether he saw the Ministerial Briefing of 23 July 2008 in hard copy or in electronic format. Mr Mullard gave evidence that he treated this document, among others which comprised the working documents for the proposed coal release areas, as confidential and that he did not provide a copy of it to anyone outside the Department, other than to the Minister's office. 1575 Mr Macdonald's receipt of the Ministerial Briefing of 23 July 2008, which included Schiavo Map 3, was challenged by the accused. However, in circumstances where it was described as 'the other one that the Minister is awaiting' by the Departmental officer who emailed it to Mr Gibson and where Mr Gibson gave evidence that it was his practice to provide Ministerial Briefings to Mr Macdonald 'at the first available opportunity',[ I am comfortably satisfied that Mr Macdonald was provided with the Ministerial Briefing including, relevantly, Schiavo Map 3." 1. Significantly, the EOI package published on 9 September 2008 did not contain Schiavo Map 3, nor did an updated package published in January 2009. [179] 2. On 5 August 2008, Mr Alan Coutts, the executive contact for the Ministerial Briefing, prepared a memorandum which included an annotated duplicate of Schiavo Map 3 and a page titled "Medium Coal Allocation Areas". [180] The page is set out in full by the trial judge at [1583]. It referred to four allocation areas, one of which was Mount Penny. The judge noted that neither Dr Sheldrake, who had been the recipient of Mr Coutts' 5 August memorandum, as Director-General of the Department, nor Mr Gibson (from the Minister's office) could recall seeing the Coutts' memorandum or discussing it with the Minister. [181] The judge then referred to the evidence of Mr Mullard: "1586 Mr Mullard recalled that the subject matter of the Coutts Memorandum was discussed at a meeting attended by himself together with Dr Sheldrake and Mr Coutts and convened by Mr Macdonald on 14 August 2008. Later that day, a meeting with Edward Obeid is noted in Mr Macdonald's diary. Another meeting between Edward Obeid and Mr Macdonald is recorded on 20 August 2008. A further meeting was scheduled in Edward Obeid's diary between the three accused at Sydney Hospital Cafe the following day. It is the Crown case that those meetings provided an opportunity for Mr Macdonald to provide Edward Obeid (or Moses Obeid) with Schiavo Map 3 and the page of the Coutts Memorandum headed 'Medium Coal Allocation Areas'." 1. The appellants' case in respect of the eighth act of misconduct is that there was a reasonable possibility that Mr Brook obtained the document from someone at Monaro Mining, leaving open a reasonable possibility that the document was not obtained by Mr Moses Obeid from Mr Macdonald. That case requires reference to Mr Brook's evidence, which provided limited support for this possibility. Further, it may be doubted, in the history of the events from 9 May until 9 September 2008, this was a critical step. It was not submitted that the eighth act of misconduct was an indispensable step in reaching a verdict of guilty and, accordingly, it is not sufficient for the appellants to raise a reasonable possibility consistent with an innocent explanation: they must demonstrate that the finding was not open on the evidence. 2. Turning to Mr Brook's evidence, the judge summarised the evidence in the following passages: "1588 On 22 September 2008, at 4:54PM, Mr Brook sent an email to Mr Yin of Tianci Inc, attaching a document which contained Schiavo Map 3. Mr Brook gave evidence that this map was given to him by Moses Obeid in 'late July, early September'. The second attachment to the email was an elaborated rendition of a document which Mr Brook again said had been provided to him by Moses Obeid and which detailed 'Stage One' and 'Stage Two' of the Mount Penny project. 1589 At 4:57pm on the same day Mr Brook emailed to himself both documents. Mr Brook gave evidence that he instructed Amanda Turner, a personal assistant at Lehman Brothers, to transcribe the document titled 'MEDIUM COAL ALLOCATION AREA'. Mr Brook amended the document by deleting the reference to Goonbri and adding to the sections on Spur Hill, Glendon Brook and Mount Penny an assessment of the tonnage of high grade thermal coal in those coal release areas. Mr Brook gave evidence that information was provided to him verbally by Moses Obeid around that time." 1. Then, in a passage with which the appellants take issue, the judge continued: "1590 In cross-examination, Mr Brook accepted the possibility that Schiavo Map 3 was given to him by someone at Monaro Mining NL. Mr Neil submitted I would be satisfied there was a reasonable possibility that both documents the subject of the eighth act of misconduct [were] sourced from Monaro Mining NL, given Monaro Mining NL's established and ongoing working relationship with the DPI. 1591 Having considered and accepted the evidence of the DPI witnesses that they did not provide either of the documents to anyone outside the Department, and in the absence of any evidence capable of establishing the reasonable possibility that they were leaked by a Ministerial staff member to Monaro Mining NL personnel, the overwhelming inference is that both documents were provided by Moses Obeid and that Mr Macdonald 'caused' them to be provided to him either directly or via another member of his family." 1. In the course of cross-examination, counsel for Mr Moses Obeid referred Mr Brook to evidence he had given before the ICAC on 27 November 2012 in which he had been asked from whom he got the map and said, "I believe it was Monaro Mining…". [182] When asked if those answers were correct, he responded: [183] "A. Yeah, that refreshes my memory, sir. I think that is more accurate than what I answered earlier in this Court. I think that is actually right, yes. I can see that that is probably a much better recollection in that it is more than probable Monaro Mining gave me that document, sir." 1. He was then taken to evidence he gave about a list of areas to be the subject of the EOI process: [184] "Q. Were you given that list of areas by Monaro? A. I believe – I believe – I believe I was given that by Moses but it is possible that Monaro gave it to me, sir. But the numbers, I was relying on Moses and I – in our discussions with respect to what we thought, or based on his research, what might be in those deposits." 1. It was then put to him that at the ICAC hearing he had said that he "either received that from Monaro or Moses". He agreed that answer was correct. [185] However, when pressed that he obtained it from Monaro, he responded: [186] "A. I think it's possible, sir. It's some time ago. It would be remiss of me to think it was absolutely one or the other." He then agreed that Moses Obeid did not give him any information on any project other than Mount Penny. 1. The judge then explained her finding at [1591]: "1592 That finding is further supported by Mr Schiavo's evidence that he did not recognise the handwriting on the face of the annotated version of Schiavo Map 3. He did not have any knowledge of the map having been sent as an attachment to an email by Mr Brook. He gave evidence that he did not know Mr Brook. It is also supported by the fact that, as the Crown submitted in closing, there is no evidence to suggest that anyone at Monaro Mining NL (most relevantly Mr Rampe and Mr Grigor) ever had copies of Schiavo Map 3 or the page of the Coutts Memorandum. 1593 Although there is no direct evidence that Mr Macdonald was in physical possession of the relevant page of the Coutts Memorandum, and since there is nothing in the evidence to suggest that Mr Brook was provided with the documents separately or by different people, I am able to comfortably make the further finding that Mr Macdonald was provided with the relevant page of the Coutts Memorandum during the 14 August 2008 meeting." 1. The appellant submitted that the judge's finding at [1593] "materially misstates the evidence given by Brook" and that she either "misconceived the import of the evidence or disregarded it". Either way, it was said that the finding was not open. [187] 2. Neither the criticisms, nor the conclusion, should be accepted. The judge neither misconceived the evidence nor disregarded it. The footnote to the first sentence of [1590] referred to the same two pages of the transcript as those relied on by the appellant. Further, the finding at [1593] followed a discussion at [1592] of which the appellant was also critical. The appellant submitted that the finding at [1592] was not open because the onus of proof lay on the prosecutor and she had failed to ask questions of the witnesses from Monaro Mining. 3. The prosecution called two witnesses from Monaro, Mr Rumore and Mr Grigor. It was no part of the prosecution case that Monaro provided Schiavo Map 3, or the Coutts memorandum, to Mr Brook. If that had been the appellant's case, it was open to him to cross-examine each of those witnesses to suggest that that had happened. The judge's finding that there was "no evidence" that anyone at Monaro Mining had ever had copies of Schiavo Map 3 or the page from the Coutts memorandum was correct. On that basis, the conclusion at [1593] was not only open, but was the more plausible explanation in the circumstances. 4. The final attack on the finding with respect to the Schiavo Map 3 disclosure related to evidence given by Mr Brook that he had provided documents to a Mr Yin (an agent for a Chinese company) after the EOI process became public. The submissions suggested that it was "not clear how the documents could have been confidential at that point in time". That proposition is both true and irrelevant. The unstated inference appears to be that Mr Brook might have obtained the documents from an available public source at that point in time. Even if that were the inference sought to be drawn, there was no explanation as to why that was relevant, nor was it said to have been relied upon by the trial judge. The submission should be disregarded. 5. It follows that the challenge to the judge's finding with respect to the source of the Schiavo Map 3 and the Coutts' memorandum must be rejected. Ground 5 is therefore rejected. PART C UNREASONABLE VERDICTS Common ground 2 – unreasonable verdicts 1. Common ground 2 was that "the verdicts were unreasonable or unable to be supported by the evidence". The written submissions for Mr Moses Obeid identified seven bases upon which he sought to invoke the unreasonable verdict limb of s 6(1). They were: 1. the trial judge's reasoning; 2. hypotheses consistent with innocence; 3. proving the alleged conspiracy prior to 9 May 2008; 4. Moses Obeid's participation in any conspiracy by 9 May 2008; 5. the backwards reasoning of the trial judge; 6. finding the first and second misconduct proved; 7. proving the Shepherd fact; 8. otherwise unable to establish the case. 1. Mr Macdonald's written submissions contained a similar list of seven "reasonable hypotheses" not excluded by the Crown, which were identified as: 1. no agreement of the kind alleged; 2. Mr Macdonald did not engage in the first and second acts of misconduct or engage in them pursuant to any conspiracy; 3. Mr Macdonald was not aware, by 9 May 2008, that the Obeids owned a property in the Bylong Valley near Mount Penny (ie the Shepherd fact was not established beyond reasonable doubt); 4. any conspiracy was entered into after 9 May 2008; 5. Mr Macdonald would have agreed to engage in the conduct notwithstanding the improper purposes or, alternatively, Mr Macdonald would have engaged in the conduct notwithstanding the improper purpose; 6. the alleged conspirators did not appreciate that Mr Macdonald would not have engaged in the conduct agreed but for an improper purpose; 7. the conduct agreed as part of the conspiratorial agreement was not serious and meriting criminal punishment. 1. Of these, (a), (b) and (d) each reflected submissions made by Mr Moses Obeid. That was acknowledged and his submissions adopted. [188] 2. Mr Obeid Snr's notice of appeal included a further sub-ground 2a: "The Trial Judge erred in law as an aspect of her duty to give reasons and to address central factual matters in contest [as to] why such reasonable hypotheses consistent with innocence advanced on behalf of the appellant has [sic] been excluded". 1. There appeared to be two limbs to this sub-ground, namely a failure to comply with s 133(2) of the Criminal Procedure Act, and, separately, a failure to address certain (unspecified) submissions. The written submissions for Mr Obeid Snr identified a failure to exclude hypotheses consistent with innocence, identifying the following hypotheses: [189] "(a) that any communication between the parties about coal and plans for the relevant area was, as at 9 May 2008, preliminary to a meeting of the minds in respect of conduct Macdonald might undertake concerning the grant; (b) given that Macdonald was simply making enquiries as to coal reserves in the area in early May this tended to suggest he could not have agreed by this time any means by which his supposed misconduct might be exercised in respect of 'the grant'; (c) an agreement which did not resolve that Macdonald would act partially raised a reasonable doubt as to the necessary mens [rea]; (d) the indeterminate nature of the agreement raised a reasonable doubt including as to the fifth element as at 9 May 2008; and (e) because of the indeterminate character of the supposed 'advantage' to the Obeids as at early May the possibility remained that it was insignificant measured against Macdonald's perception of the likely benefit to the people of NSW by doing acts in connection with the release of the area." 1. Apart from a challenge to the reasoning process of the trial judge ("reasoning backwards") each of the complaints was directed to a finding which, it was submitted, ought not to have been made. That was so with respect to Mr Macdonald's list of "reasonable hypotheses" which had not been addressed and which related to particular aspects of the conduct said to constitute either the basis of the conspiracy or the acts undertaken in pursuance of the conspiracy. The submissions did not in terms identify the cumulative effect of these particular errors, which might have provided a basis in principle for contending that there was a reasonable doubt as to the ultimate verdicts in each case. As a result, there was considerable overlap between the submissions made under ground 2 and those relating to specific findings of fact, particularly as identified in ground 5. More importantly, raising reasonable hypotheses consistent with innocence in relation to specific intermediate findings ignores the nature of a circumstantial case. It will be convenient to return to this matter in addressing the challenge to the reasoning of the trial judge. 2. The formulation of the particulars of the ground being problematic, it is necessary to identify the applicable legal principles. Unreasonable verdicts – Applicable legal principles 1. The relevant legal principles encompass two subjects. First, there is the correct approach of a court of criminal appeal dealing with a challenge to a verdict of guilty of an indictable offence under the first limb of s 6(1) of the Criminal Appeal Act, namely that the verdict "should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence". Secondly, there is the correct approach of a court of criminal appeal to factual challenges where the trial has been conducted by a judge alone who has given reasons setting out her findings of fact and reasoning process. By way of contrast, a trial by jury will usually allow little scope for challenges to the fact-finding process, other than a challenge to the verdict itself under the first limb of s 6(1), because the jury's reasoning is not transparent and it cannot be known what aspects of the evidence were rejected, what intermediate findings were made, and what inferences were drawn. 2. The established principle as to the unreasonable verdict ground is that the court should determine whether it entertains a reasonable doubt as to the guilt of the accused. As to a judge alone trial, the established principle is that the appeal is not an appeal by way of rehearing and thus turns on the evidence and law as applicable at the time of the trial. Criminal Appeal Act, s 6(1), first limb 1. In considering the first area it is important to keep in mind the structure of s 6, which contains three limbs and a proviso: 6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. (2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5 (1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered. 1. As stated in M v The Queen, [190] a court of criminal appeal considering a challenge under the first limb of s 6(1) must undertake an "independent assessment of the evidence, both as to its sufficiency and its quality". [191] The direction in s 6(2) is subject to the power of the court to direct a new trial rather than enter an acquittal: 8 Power of court to grant new trial (1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make. 1. Where the appeal court holds that a verdict is unreasonable, there will be few if any circumstances in which the proviso in s 6(1) could be engaged, or in which the possibility of a new trial will arise. In other cases, both issues may be live and may need to be addressed. The question is whether there may be such cases if factual challenges can arise under the third limb in s 6(1) (a miscarriage of justice on any other ground). If discrete factual challenges are available under that ground, both the proviso and the power to order a new trial may be engaged. Further, the parties drew no bright line between the challenges based on the unreasonableness of the verdicts (ground 2) and the consequences said to flow from success on the challenges to particular factual findings raised by common ground 5. Trial without a jury 1. Turning to the second area, the obligations imposed on the trial judge undertaking a trial without a jury are set out in s 133 of the Criminal Procedure Act: 133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter. 1. There are three observations to be made in relation to the language used in s 133. First, although it is commonplace to refer to findings of fact, the term "finding" in s 133(1) is equated with the verdict of a jury. It must therefore refer to the ultimate finding of guilt or innocence, in the absence of any form of special verdict. This construction was accepted in the joint reasons in Fleming v The Queen [192] and reiterated in Filippou v The Queen. [193] However, somewhat unhelpfully, s 133(2) refers to "findings of fact" on which the judge relied, which must identify findings of primary or intermediate fact on which the judge relied for the ultimate "finding" which is equated to a verdict. The purpose of s 133(2) is not to give such findings of fact any particular status, but to require that the judge set out the findings of fact in a "judgment", meaning the reasons for judgment. [194] 2. Although there was no express challenge with respect to identified aspects of the adequacy of the judge's extensive reasons , in terms of their compliance with s 133, it is important to note the scope of the obligations imposed on a judge conducting a judge alone criminal trial, both under s 133 and under the general law. 3. Since January 2011, orders for trial by a judge alone and applications for such orders have been provided for in ss 132 and 132A respectively of the Criminal Procedure Act. Prior to that time, and since amendments in 1990, the equivalents of ss 132 and 133 of the Criminal Procedure Act were found in ss 32 and 33 of that Act. A number of issues concerning the operation of s 133 (then s 33) were settled by the High Court in Fleming. In relation to s 33(1), the court in Fleming observed, in relation to the phrase "on the question of the guilt" of the accused: "[25] … The sub-section also encompasses as findings 'on the question of the guilt of the accused' such matters as the steps by which s 23A of the Crimes Act is applied in cases of substantial impairment by abnormality of mind and s 23 is applied in cases of provocation, in each case to require a conviction of manslaughter rather than murder." 1. By parity of reasoning, the term "findings" will encompass ultimate findings as to each element of the offence charged. 2. The appellants did not take issue with the statement by the judge as to the principles of law which she applied, or as to the statement of the findings of fact on which she relied. Nor did the appellants take issue with the implied obligation to explain in the reasons the warnings which had been taken into account in accordance with s 133(3). 3. Bearing in mind these aspects of the operation of s 133, it is convenient to return to the nature of the appeal against conviction under ss 5(1) and 6(1) of the Criminal Appeal Act with respect to a trial by a judge alone. Unreasonable verdict challenge in judge alone trial 1. The High Court in Fleming referred to statements by Hunt CJ at CL both in R v Kurtic [195] and in R v O'Donoghue, [196] to the effect that the appeal under the Criminal Appeal Act was "not by way of rehearing" and that the court had no power "to substitute its own findings for those of the trial judge" and that to demonstrate error it was necessary to show that there was "no evidence to support a particular finding, or [that] the evidence is all one way, or [that] the judge has misdirected himself". [197] The last phrase may be taken to refer to a misdirection as to the facts, as a misdirection as to the law will fall within the second limb of s 6(1). [198] 2. Fleming involved a failure on the part of the trial judge to record, and it was inferred apply, a relevant and significant warning. At least in that circumstance, the Court considered it unhelpful to seek to discriminate between the nature of an appeal under the Criminal Appeal Act and the nature of an appeal "by way of rehearing". [199] Rather, the Court noted that the failure in question constituted an error of law and a miscarriage of justice for that reason. [200] However, importantly for present purposes, the Court stated: "26 Thirdly, the first limb of s 6(1), which deals with the unsatisfactory quality of 'the verdict of the jury', must now be seen through the prism of s 33(1). The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing, is that finding 'unreasonable' or one which 'cannot be supported'? It is unnecessary on this appeal to determine whether, in such cases under the first limb or in cases under the more broadly stated third limb, the appellate court will intervene … only where there was no evidence to support a particular finding, the evidence was all the one way or there has been a misdirection, leading to a miscarriage of justice." [Footnotes omitted.] 1. Addressing the requirement in M v The Queen that the court undertake an "independent assessment of the evidence, both as to its sufficiency and its quality", Filippou and Dansie set out the approach to be followed by the court where an accused has been convicted after a trial before a judge alone (with the consequence that the trial judge's reasons for the guilty verdict are before the appellate court). 2. The joint reasons in Filippou explained that the Court of Criminal Appeal is required to deal with an appeal from a judge alone trial in three stages: "4 … The first is to determine whether the judge has erred in fact or law. If there is such an error, the second stage is to decide whether the error, either alone or in conjunction with any other error or circumstance, is productive of a miscarriage of justice. If so, the third stage is to ascertain whether, notwithstanding that the error is productive of a miscarriage of justice, the Crown has established that the error was not productive of a substantial miscarriage of justice." 1. The first stage appeared to encompass error under any of the three limbs of s 6(1). A question had been left open in Fleming as to whether and when the appeal court should intervene under the first or third limb of s 6(1) of the Criminal Appeal Act. [201] The joint reasons in Filippou sought to address that question: "12 … It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice.." 1. It is not entirely clear why a misdirection on a matter of law would not be dealt with under the second limb, [202] a distinction which will have consequences for the application of both the proviso and s 8. [203] 2. What followed in Filippou, which is of importance in the present case, requires reference to the grounds of appeal in Filippou in this Court which were set out by the High Court: "43 There were three grounds of appeal to the Court of Criminal Appeal, each comprised of a number of parts but amounting in substance to: (1) The verdict was unreasonable within the meaning of the first limb of s 6(1) of the Criminal Appeal Act and could not be supported having regard to the evidence. This was because, in finding that the appellant had not lost self-control, the judge misdirected herself as to the inferences to be drawn from the statements made by the appellant while in custody; erred in the inferences drawn from the gap in time between the second and third shots; and misdirected herself as to the 'ordinary person' test. (2) The judge erred in law within the meaning of the second limb of s 6(1) of the Criminal Appeal Act by making each of the errors identified in the first ground. (3) In all the circumstances, the conviction was a miscarriage of justice within the meaning of the third limb of s 6(1) of the Criminal Appeal Act." 1. This Court found that the trial judge had committed the three factual errors identified in ground (1). The High Court identified the correct approach to be taken in that circumstance in the following terms: "48 … Having identified error, the task for the Court of Criminal Appeal is to determine whether the error is productive of a miscarriage of justice. In this context that would have meant determining whether the judge had so erred in fact by preferring Allen's version of events over Mrs Filippou's recollections as to engage either the first or third limbs of s 6(1), or so erred in law by giving 'determinative' weight to the appellant's post‑offence statements as to engage the second limb of s 6(1); and, if so, then assessing whether it was established that the error was not productive of a substantial miscarriage of justice in the sense of depriving the appellant of a chance of acquittal (or, in this case, a chance of a manslaughter verdict) fairly open to him. To dispose of the matter on the basis simply that the Court of Criminal Appeal was not satisfied that the judge's conclusion was erroneous because the Court of Criminal Appeal considered that the appellant had been proved guilty beyond reasonable doubt did not engage with the requirements of the statutory task." 1. Although the reasons of this Court may not have been expressed in precisely the terms required by M v The Queen, on one view, adopted by Gageler J, [204] this Court having found error had proceeded to determine whether it entertained a reasonable doubt as to the guilt of the accused (although the joint reasons viewed it as dealing with the matter as if by way of rehearing). The explanation for this Court treating the matter in that way may have been that ground (1) expressly invoked the first limb of s 6(1). However, having identified this as the wrong approach, the joint reasons then considered whether it should allow the appeal and remit the matter to this Court for redetermination, or whether the appeal should be dismissed. The High Court adopted the latter outcome on the basis that the alleged errors of the trial judge were not indeed errors. In other words, in circumstances where an appeal ground invokes the first limb of s 6(1), but on the basis of specific errors, if the errors are not made out, there is no obligation on the appeal Court to review the whole of the judgment to determine whether it entertains a reasonable doubt. The joint reasons explained the approach which should be taken to the first of the factual errors in the following terms: "56 Starting with the first of the judge's supposed errors, the question for the Court of Criminal Appeal was not whether it was 'satisfied that the judge's account was correct' but whether her Honour's findings as to the sequence of events were not reasonably open." [205] 1. The High Court concluded that two of the errors were not in fact made out and that the third was, in that circumstance, "of no consequence". [206] It followed, if the findings were reasonably open, that there was no miscarriage of justice within the meaning of the third limb. 2. What was not decided in Filiippou, perhaps because it was not necessary, was whether each of the alleged errors was an error in determining a necessary element of the defence of provocation. The joint reasons had earlier explained that "[t]he third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial". [207] However, Gageler J, who wrote separately, did address this point in principle: "85 Under the third limb, … the trial judge's finding of guilt must be set aside (subject again to the proviso) if the Court of Criminal Appeal concludes, for some reason not already covered by the first or the second limb, that there was a miscarriage of justice. There is no reason in principle why an error of fact in arriving at an intermediate finding of fact, which is disclosed by the reasons for judgment of the trial judge, should not be characterised as a miscarriage of justice if that error might reasonably have affected the ultimate finding of guilt. 86 The observations in Simic v The Queen [208] , directed to review under the third limb of a 'misstatement of an important matter of fact' [209] which a trial judge made in a direction to a jury, can in my view be applied to review of an error of fact made by the trial judge in a trial by judge alone. Having made the point that the onus rests on an appellant to show that a misstatement of fact amounted to a miscarriage of justice, the unanimous judgment in Simic continued: [210] 'Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected. Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.' 87 Where, in an appeal against conviction following a trial by judge alone, it is argued that the reasons for judgment of the trial judge disclose an error of fact in the way in which the trial judge reasoned from the evidence to make an intermediate finding of fact on which the trial judge relied in arriving at the ultimate finding of guilt, I cannot see how the appellant can discharge the onus of establishing a miscarriage of justice under the third limb unless the appellant can persuade the Court of Criminal Appeal of two things. The first is that the trial judge did make that error of fact in arriving at an intermediate finding of fact. The second is that, having regard to the gravity of the error of fact and the strength of the case against the appellant, it was reasonably possible that the trial judge might not have arrived at the ultimate finding of guilt if the trial judge had not made that error." (Emphasis added) 1. This passage suggests that, for the purposes of reviewing a judge's reasons in a judge alone trial, the appeal court does not ask whether a factual finding was open to the trial judge, but whether the trial judge made an error of fact in arriving at an intermediate finding of fact. However, Gageler J also stated: "89 … If there were no evidence to support a particular finding, or if the evidence were all one way, the case would be one of a wrong decision on a question of law so as to also fall within the second limb. [211] If the trial judge were shown merely to have got some intermediate fact wrong, the first limb would be engaged only if it were also shown that the wrong finding of fact deprived the appellant of a reasonable possibility of acquittal. For the reasons I have given, the third limb could then in my view equally be seen to be engaged." The first sentence in this passage appears to look to the reasons to determine that a particular finding has been made; it would be natural to also look to the reasons to see whether the judge identified the basis for it, before deciding that the finding lacked material evidence to support it. 1. In the present case, ground 2 was not expressly articulated by reference to specific errors of fact; ground 5, however, was so articulated. In order to determine ground 5 it was therefore necessary for the Court to proceed on the basis that the appellants must demonstrate that the findings were not reasonably open. In relation to ground 2, the question is whether the Court entertains a reasonable doubt as to the ultimate finding of guilt, or as to any essential step bearing on that finding. How then, is the latter exercise to be undertaken? 2. Further clarification as to the appropriate appellate process was supplied in the joint judgment of the High Court in Dansie in which it was stated that: "[7] … [T]he function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence." 1. Later in the reasons, the Court said: "[16] Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial." 1. The decision of the Court of Appeal of the Supreme Court of South Australia was overturned. The High Court emphasised that Livesey J (with whom Parker J agreed) erred in his conception of the "limited nature of his own fact-finding role". [212] The Court also emphasised the importance of the appeal court making an "independent consideration of whether the evidence left open reasonable hypotheses consistent with innocence", [213] pointing out that what was required was "more of each of its members than mere satisfaction as to lack of error in each of the findings of fact made by [the trial judge] in arriving at that finding of guilt". [214] 2. At the request of the Court, the parties prepared a comprehensive schedule of factual findings which were (i) not challenged, but relied on by the respondent; (ii) challenged by the appellant; and (iii) neither relied upon nor in dispute. The intention underlying the request was to provide a basis for applying the reasoning in Dansie. The second category contained 72 supposed findings of fact which were challenged; by contrast only a small number of uncontested findings were identified. The exercise failed to narrow significantly the scope of the exercise required under ground 2. Unreasonable verdicts – key challenges 1. Each of the appellants listed arguments in support of the submission that the verdicts were unreasonable. As has been noted, there was significant overlap between the lists and also overlap with the specific grounds which have already been dealt with including, particularly, the challenge to factual findings pursuant to ground 5. 2. The fact that this was a largely circumstantial case has two consequences, operating in different directions, for consideration of the unreasonable verdict grounds. First, to establish that particular findings leave open a reasonable hypothesis consistent with innocence (and thus permit a reasonable doubt) will not be a sufficient basis for setting aside a verdict unless the Court is satisfied that having regard to all of the circumstantial evidence, the doubt remains. On the other hand, rejection of a challenge to specific findings on the basis that the findings were open to the trial judge may not preclude the formation of a reasonable doubt as to the outcome. Thus, the rejection of the specific challenges, for example in ground 5, will not preclude the formation of a reasonable doubt as to the verdict. Accordingly, ground 2 requires a broad review of the evidence. (1) Reasoning of trial judge 1. There were numerous passages in the submissions which purported to challenge the reasoning of the trial judge, but which diverted into challenges to particular findings. [215] The thrust of the submissions in relation to an unreasonable verdict ground was often difficult to discern. Thus, a failure to provide reasons may constitute a breach of s 133(2), and thus an error of law, by force of the exegesis in Fleming at [28], that it is not sufficient for the judge to record findings of fact as material to support the verdict, without exposing the process of reasoning by which those findings were reached. However, the present purpose was not to identify an error of law. Further, despite the breadth of the language in Fleming, it may be doubted that there was an obligation to give reasons which were not the reasons of the trial judge. Thus, as explained in a civil context, [216] the obligation to give reasons is limited to the actual reasons of the judge and does not encompass a theoretically available set of reasons which were not those in fact adopted. If there is a gap in the reasoning, it may demonstrate error of a different kind, rather than a failure to comply with an obligation to give reasons. It may, for example, demonstrate a misunderstanding as to the relevant principles to be applied, or the nature of the case presented by one party. However, as explained by Simpson AJA in Mohana v R, [217] a complaint of inadequate reasons or inadequate fact-finding, where coupled with an unreasonable verdict challenge which is determined by the Court, may lack utility. 2. In dealing with an unreasonable verdict ground, in a circumstantial case, the Court is not concerned with the adequacy of reasons, but rather whether the evidence supports the ultimate verdict. In considering the evidential support for the necessary findings, the appellants submitted that this Court was in almost as good a position as the trial judge, because there was limited reliance on oral testimony. However, that submission overstated the position of this Court. First, the Court does not have the benefit enjoyed by the trial judge of considering this matter over 77 days of hearing, with time for reflection between hearing days scattered over 12 months. Secondly, and in similar vein, it does not have the benefit of close attention to the documentary evidence over a similar period. Thirdly, although it is undoubtedly true that some witnesses were more significant than others, the trial judge heard from about 40 witnesses, some of whom gave evidence of considerable significance, including Mr Cherry, Mr Mullard, Mr Gibson, Mr Rumore, Mr Grigor, and Mr Brook. Further, there are real difficulties in deciding how an appellate court entertains a reasonable doubt following a 77-day trial with a transcript of over 3,000 pages, where the main exhibit, Ex A, alone exceeded 7,500 pages. It is clearly not possible for the appeal court to review the case as a whole, and to attempt the task is to risk conducting a rehearing on the papers. In Fox v Percy, [218] albeit an appeal from an appeal by way of rehearing, the High Court affirmed the long-recognised practical reasons for caution in re-assessing fact-finding by a trial judge. To recognise the practical issues is not to diminish the statutory right of a person convicted in a judge-alone trial to challenge the verdict on the ground that it is unreasonable or unsupportable on the evidence. Indeed, the opportunity may be greater where reasons have been provided than with an inscrutable jury verdict: the appellate court's focus on the evidence does not require it to disregard the judge's reasons, which may demonstrate that an apparent inadequacy in the evidence is not to be explained away. 3. Without determining whether they were properly agitated under ground 2, it is appropriate to address two challenges to the judge's reasoning process. First, it was said that the judge indulged in "retroactive or backwards reasoning". [219] This was variously described as "dangerous" and "alarming". However, as the respondent submitted, "overt acts will often be relied upon as a means of proof of the existence of a conspiracy", [220] so that such reasoning will be both inevitable and appropriate. Further, it would be an error to consider parts of the evidence in isolation without regard to the coherent whole. [221] 4. That last submission is consistent with long-established principle. In The Queen v Hillier, [222] Gummow, Hayne and Crennan JJ (Gleeson CJ agreeing) stated: "46 The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence." 1. The point was reiterated in The Queen v Baden-Clay: [223] "47 For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' [224] (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' [225] (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal." 1. Secondly, an underlying theme of the submissions, and particularly those of Mr Macdonald, who phrased the sub-grounds of ground 2 in this manner, was that the judge failed to exclude rational hypotheses consistent with innocence. Mr Macdonald identified seven rational hypotheses which were said not to have been excluded. However, the substance of each matter was an assertion that a particular finding of fact was erroneous, or could not be upheld on the evidence. The better way to approach these challenges under ground 2 is to identify the critical facts, especially those which were elements of the offence, or indispensable findings, and consider to what extent the prosecution case may be seen to fall short by reference to the evidence. The particulars of ground 2 will be identified as they are addressed; at the conclusion of this exercise, it will be appropriate to return to the sub-grounds to address any which remain unresolved. (2) Existence of agreement by 9 May 2008 [226] 1. It was common ground, and perhaps not surprising, that there was no "direct" evidence of the formation of the unlawful conspiracy by reference to events preceding 9 May 2008. There were, however, circumstances which permitted an inference to be drawn as to the opportunity for the parties to have reached an agreement, the terms of which could not be known. This required evidence of communication and opportunities for communication in the relevant period and an opportunity for Mr Macdonald to become aware that his colleague, Mr Obeid Snr and members of his family-owned property in the Bylong Valley in the vicinity of Mount Penny. Further, it required knowledge on the part of the three appellants that there was a coal seam which extended under the property. 2. Dealing, however, with the substance of the case there was significant evidence of a close relationship between Mr Obeid Snr and Mr Macdonald at the time Cherrydale Park was purchased in September 2007. Negotiations with Mr Cherry had taken place in the first half of September and Mr Obeid Snr attended Mr Macdonald's wedding in Orange on 15 September 2007. There was evidence that arrangements to finalise a contract of sale were taking place at that time. Mr Macdonald and Mr Obeid Snr spoke on the evening of Sunday, 16 September and again on several days during the following week, and on the following Monday and Tuesday which were parliamentary sitting days. On 26 September 2007, Mr Badenoch, Mr Macdonald's chief of staff, made an enquiry about water licences at Cherrydale. The water licences formed a significant element of the contract of sale, as explained above, because there was an obligation on the purchaser to maintain the licences in their present terms while Mr Cherry held a security interest over the property. There was a reasonable inference that Mr Badenoch made the enquiry at the request of Mr Macdonald. 3. When asked in December 2012 by a journalist (Mr Shanahan) whether he had had any involvement or discussions with Mr Macdonald about the tender process (presumably the expressions of interest) Mr Obeid Snr stated: [227] "… We spent the summer of 2008 up on the farm and the rumours were rife about a mine for Bylong Valley by Anglo and when I went back to Parliament and its on record that I asked Ian if the Department has any knowledge of a mine being planned for Bylong by Anglo. Within six or seven days one of his staffers called on my office and said to me that there was no plans…" 1. Further, there was evidence from both Mr and Mrs Fitzhenry as to the relationship between both Mr Moses Obeid and Mr Obeid Snr and Mr Macdonald, including Mrs Fitzhenry's evidence that Mr Macdonald had told Mr Obeid Snr (who told his son) that there was coal on Cherrydale. There was also the evidence of Mr Fitzhenry, which despite the cross-examination, permits a clear inference that Mr Moses Obeid spoke to him in the first few months of 2008 in the terms already discussed above. Further, in his interview with the journalists in December 2012, Mr Moses Obeid stated that he and his brother Paul Obeid had done research in March or April 2008. [228] Mr Moses Obeid stated in the interview that the information had come by way of rumours heard by their farm manager at the local pub. That part of the story need not have been accepted by the tryer of fact but the dating of the knowledge was significant. 2. While that evidence undoubtedly fell short of establishing the existence of a conspiracy by 9 May 2008, it provided a plausible framework against which subsequent events might be assessed. However, there was little room for doubt that at that time Mr Macdonald knew of the acquisition of Cherrydale Park by the Obeid family. [229] (3) Events of 9 and 14 May 2008 1. The first and second acts of misconduct particularised by the prosecution alleged that on or about 9 May and again on 14 May 2008 Mr Macdonald sought information via his chief of staff, Mr Gibson, from the Department about coal reserves in the area of Mount Penny. 2. The evidence as to the asserted facts came from Mr Gibson, supported by a documentary record. The record started with a diary entry in Mr Macdonald's diary for a meeting with Mr Obeid Snr on Thursday, 8 May at 5.30pm in Parliament House. 3. Mr Gibson gave evidence that Mr Macdonald had said to him on the morning of 9 May, "can you get some more information on this area for me, please, Jamie? And I said, 'yes, I can'". [230] He was then asked to identify "this area" and said "the Mount Penny, North Bylong area". [231] 4. Mr Gibson said that he called Graham Hawkes in the Department directly. At 12.01pm, Mr Hawkes forwarded to Mr Gibson an email from Robert Larkings in the Department, which read: "There are significant coal resources in the area of Mount Penny in the Bylong Valley. We are unsure of the exact area of interest, however there are a number of coal titles in the area including exploration licence (EL) 6676, held by the Department of Primary Industries (shown by blue shading on the attached diagram) and Authorisation 287 held by Anglo Coal (shown by yellow shading)… The Department holds the EL so that it can carry out drilling and it is expected that this program will include some drilling in the vicinity of Mount Penny to further delineate the resource, which is expected to consist mainly of thermal coal. This exploration may identify an area suitable for tender." 1. The diagram attached to the email was a map entitled "Mount Penny area – map 1", and at the foot noted that it had been prepared on 9 May 2008 by Leslie Wiles (Wiles Map 1). 2. At 12.06pm on 9 May, Mr Gibson responded by email: "Hi Graham, map is great, can I just get the email details in brief form? I've got to fax it to the boss – I've bought us another hour. Thanks heaps." 1. At 12.57, Mr Hawkes responded noting "brief and diagram attached. Information approved by Brad Mullard, Director Coal and Petroleum Resources". The attached Ministerial Briefing from DPI-Mineral Resources and headed "Mount Penny – Bylong Valley" was in similar terms to the earlier email to Mr Gibson. Wiles Map 1 was attached. 2. Mr Gibson gave evidence that he "gave the information to Mr Macdonald" by forwarding the email. 3. With respect to his message to Mr Hawkes that he had to "fax it to the boss" Mr Gibson gave evidence that "the boss" was Mr Macdonald and continued: [232] "Q. In what circumstances did you fax documents to him? A. If Mr Macdonald was travelling home to his residence, at the time in Orange, we would, if we had not been able to get it to him as a hard copy before he left, we would fax it through to his home address there." 1. Mr Macdonald's electronic diary for 9 May 2008 showed an entry at about 12.30pm "flight Sydney to Orange"; Mr Gibson said that he believed that Mr Macdonald had travelled back to Orange at about that time. He also gave evidence that he faxed the Ministerial briefing and the attached diagram to the Minister. [233] Mr Gibson gave evidence that he considered the briefing document "a commercially sensitive document and therefore not – it should not be made available to the public". [234] He said that he called Mr Macdonald to confirm that the material had been received. 2. On 14 May 2008, Mr Gibson sent an email ("importance: high") to Craig Munnings who was a Departmental Liaison Officer (Minerals) in the office of the Minister. The email, sent at 11.02am was entitled "Coal Reserves in Mount Penny Area of Bylong Valley" and appeared to be a forwarding of an earlier email with that title. The email read: "Mate, is there any possible way that we can get more detail on this area? For example, is it possible for DPI to open its holdings for tender? You will see from map the area the DPI has and are there any better assessments on how much coal might bet [sic] there? We need it ASAP." 1. The next email, from Mr Munnings to Mr Hawkes at 1.33pm indicated that Mr Munnings had been out of his office and asked, "could this be actioned ASAP". At 1.39pm Mr Hawkes emailed Mr Mullard saying: "Please see Jamie Gibson's request below. I don't know what all this is about. He seemed happy when we sent this initial info to him on Friday." The email was copied to Mr Coutts, Deputy Director-General, of DPI. 1. At 3.51pm, Mr Coutts responded to Mr Hawkes: "We also need a bit more info on what is the area we are looking at – what do you mean by Mount Penny – it is not an area we recognise by that name as a potential allocation area." 1. Mr Gibson was asked why he sent the request for information on 14 May to Mr Munnings and responded: "This was a further request from Mr Macdonald." [235] The Minister did not provide a reason for the request. 1. Given the extensive support for Mr Gibson's evidence in the documentary record, there was no apparent reason to doubt the accuracy of Mr Gibson's oral evidence. Nor did the trial judge indicate that his evidence would be rejected: rather, in circumstances where there was a conflict between witnesses, his evidence was preferred. 2. The evidence clearly established that the first and second acts of alleged misconduct were made out. A rational explanation for Mr Macdonald's behaviour was that he was seeking information in relation to land which he knew was owned by the Obeid family. There may have been other rational explanations, but it is neither necessary nor appropriate to ask a question in those terms in respect of part only of the circumstantial evidence. (4) Period 26 May – 16 June 2008 1. Mr Macdonald was in China between 15 and 26 May 2008. Mr Macdonald had contact with Mr Obeid Snr at 5.17pm on the day of his return, 27 May 2008. There was a further telephone contact at 7.35am the following morning after which there were exchanges between Mr Obeid Snr and Mr Moses Obeid. Mr Obeid Snr met with Mr Macdonald at 11am on 28 May 2008. 2. A list of areas which might be released was prepared by Ms Moloney (on direction of Mr Mullard) in preparation for an expression of interest process. The areas to be identified were to be in the Western Coalfields. [236] She prepared a list and a diagrammatic representation of the areas covered. At the same or similar time, Ms Wiles was asked to look for "large tender areas". [237] Wiles Map 2, dated 30 May 2008, was prepared in response to that request and covered an area in the Bylong Valley from a mining lease known as Wilpinjong in the west to the Anglo Coal Authorisations in the east. 3. This material was included in a brief to the Minister for a meeting which was held on 3 June 2008. The attachment headed "North Bylong" (being Wiles Map 2) showed the sideways S snaking up the Bylong Valley and cross-hatched in pink or red. It was one of three larger exploration areas identified and was accompanied by a statement that the area "is expected to contain substantial opencut resources" but that "[f]urther exploration is required to define a potential tender area". [238] 4. Mr Macdonald met Mr Mullard at Parliament House on 4 June 2008. Mr Gibson attended the meeting. Mr Gibson gave evidence of the discussion at the meeting on 4 June. A relevant exchange in the course of his examination in chief was as follows: [239] "Q. My question is what, if anything, was discussed about the North Bylong area? A. Yes, Mr Macdonald requested a change to the boundary tenement the shape of. … Q. Can we, again imposing a direct speech framework on what Mr Macdonald said in the context of requesting a change to the shape of the boundary tenement of the North Bylong area? A. Mr Macdonald said, 'Brad, the North Bylong tenement boundary should be changed to something like this because it would be more reflective of the resources in that area'. Q. When you say 'something like this', what did he say or do? A. I believe there was a basic sketch or a basic outline that was provided or drawn, potentially on the map itself. Q. Drawn by who? A. Mr Macdonald. Q. When you say 'on the map itself', what map do you mean? A. On one of the maps that was provided to us by the department. … Q. In respect of the question just asked and your answer, are you talking about the maps – a map of North Bylong? A. Yes, the map that I can see here with the pink hatching." 1. There was then discussion as to how the evidence should be led, which ended with the following exchange between the judge and the witness: [240] "Q. All right. I think I understand that. It is important that we take this in a relatively staged way. Is your evidence that you recall coincidence between the markings Mr Macdonald applied in the meeting of 6 June 2008, about which we are hearing your evidence, and what you later knew to be a particular map which accompanied the EOI process reflecting the Mount Penny tenement? A. My recollection, your Honour, is that over the course of several weeks from the point of this meeting, the boundary of this tenement was changed to be what the final boundary was and that was at the request of Mr Macdonald. I do seem to recall there was a basic sketch of that and I believe that it was work in process between the Minister's office and the department over that period of time." 1. Mr Gibson gave evidence in relation to the name (North Bylong) attached to Wiles Map No 2 as it appeared in the briefing note, together with the description, which indicated "open-cut resource greater than 200 million tonnes" to a subsequent description as an attachment to an email from Mr Mullard, which was copied to Mr Gibson, in which the title was changed to "Mount Penny" and the estimated open-cut resource was now "Less than 100Mt in the Mount Penny area". [241] A possible timeframe for a Mount Penny expression of interest was also included, with four weeks for a data package preparation (to the end of July) and an eight week period identified as the "EOI period" with a date given as the end of September. [242] 2. When asked about the changes, Mr Gibson said they came from a discussion between Mr Macdonald and Mr Mullard, Mr Gibson explaining: [243] "This relates to, I think, that meeting on or around 4 June where Mr Macdonald asked for this area, the boundary tenement, to be changed because what you have there at North Bylong is quite a large open-cut resource greater than 200 million tonnes and then, shortly after, on the 16th, you have a defined area of Mount Penny with a less than 100 million tonne resource area, so they are quite different in size. You would categorise North Bylong as large and Mount Penny as small to medium now." 1. Further, the estimated minimum return identified for Mount Penny was $15 million; the estimated return for a large coal EOI area known as "Ridgelands" in the Hunter Valley was in excess of $100 million. Mr Mullard's evidence as to the discussion at the meetings on 4 June and 6 June (which he found difficult to distinguish) included the following discussion: [244] "Q. Doing the best you can, what is your recollection as to how those discussions with the Minister progressed in relation to the potential areas of interest? A. The Minister was very keen to – when we put the initial list up, which was sort of the six areas and so on, the Minister wanted more. Q. Yes? A. And he very keen to get more areas out than what we were originally proposing. Q. Okay. A. And when we sort of said that would be difficult, he did suggest 'can't we break up some of the large areas to create some small areas as well?' Q. Did he indicate any detail in that regard? A. He did refer to the Bylong large area and said 'can't we create a small area out of that?'" 1. Mr Mullard also indicated a concern that "breaking up the large areas might result in [them] being less attractive to the industry if we put it out for tender". [245] 2. The prosecutor obtained leave to cross-examine Mr Mullard with respect to his statement of 20 May 2014 in which he had said, in relation to the meeting with the Minister on 6 June: [246] "At this meeting the Minister told me that he wanted the North Bylong area broken up to make a smaller area in the east that could be released with the smaller Coal Release Areas under consideration at that time. He referred to this as 'the Mount Penny area'." 1. As has been discussed above, Mr Mullard further agreed that "he definitely told me to make a smaller area" and when asked if that was "in the east" said, "that is very likely, yes". [247] 2. Mr Mullard also accepted that after the meeting he spoke to Ms Moloney and asked her "to create a coal exploration licence area in the eastern side of North Bylong". Her email in response, with a map on 16 June 2008 showed "area 7 Mount Penny". He agreed, that his statement recorded that he "may have referred to that area as 'Mount Penny' when talking to Ms Moloney, hence the name". [248] 3. At 5.06pm on 4 June 2008, Mr Gibson emailed Mr Mullard: [249] "Sorry one more thing – could we please have all the maps that you showed Ian today blown up as big as you can." 1. At the same time, Mr Macdonald had a scheduled meeting for one hour with Mr Alan Fang of Tianda, in relation to whom some further matters will be addressed below. Mr Gibson gave evidence at the trial that the maps arrived in a cylinder. He recalled that the person delivering them had been caught in a rainstorm, from which the maps were protected. At 4.32pm on Thursday, 5 June, Mr Gibson emailed Mr Mullard thanking him for the maps which arrived that morning and noting "they were very much appreciated". [250] The second meeting occurred on Friday, 6 June at midday. At 3.04pm, Mr Gibson emailed Mr Munnings stating "can you please get the latest Bylong Valley (Mount Penny) map emailed up on Tues" which was 10 June 2008. [251] 2. Twenty minutes later, Mr Mullard emailed three maps being the three large area maps for Ridgelands, North Bylong area and Benelabri application area. The map provided in relation to North Bylong-Mount Penny was Wiles Map 2. 3. Mr Gibson was cross-examined about the email sent at 3.04pm on 6 June 2008 which was headed "2 things mate". Having observed that they had obtained a copy of the map on Tuesday 3 June in anticipation of the meeting with Mr Mullard on the 4 June, and that following that meeting he had asked Mr Mullard for larger versions of the maps, which were subsequently provided on the 5 June, his evidence continued: [252] "We then go to this meeting, Friday the 6th, in Governor Macquarie Tower and we meet him at midday. We talk about these areas. And then several hours afterwards, having met Mr Mullard and gone through these areas, here I am asking again for a copy of the same map that we in theory have now several of and, having just seen Mr Mullard, because it is my recollection that Mr Macdonald marked up one of the maps at this meeting and requested this area to be amended to Mr Mullard and that because a map had been marked up, he had requested me to get another copy, another clean version, if you like, an electronic version of the same map." 1. It was also put to him: [253] "Q. I just want to put to you the normal practice in the Minister's office and that is either the responsible policy officer or Mr Macdonald's personal assistant would gather the material for actioning and the material for actioning is documents being scanned and sent back to the department; that's what happened at the end of the meetings? A. Sometimes but in a case like this where, say, something is marked-up, the departmental officer might take the marked-up version away so they can work on it. Q. Yes, and it would be expected that that marked-up version would be scanned onto TRIM and a record would be kept of it, it would be retained? A. No, not always. The departmental officer, because this is a map from a briefing note that already exists, there is no need to scan it again on the way out. In fact, I don't really ever recall that happening in the Minister's office when a meeting was over. People don't then go and register it again if there was amendments made. The officers would take those materials, particularly if it was linked to an existing brief, and go away and work on it." 1. Mr Mullard also accepted that in evidence he gave to the ICAC in November 2012 he had said: [254] "Well, I am clear that the Minister wanted a Mount Penny area created. I am clear that the area that he was referring to as Mount Penny was the eastern part of the Bylong area. … But I cannot recall that we have had specific directions as to precisely where the boundaries were. I believe my understanding and my recollection is that the department defined those boundaries." 1. The evidence provides strong support for the conclusion that Mr Macdonald was responsible for creating a coal release area which covered the property owned by the Obeid family and the two northerly neighbours. In ordinary parlance, he directed the creation of the coal release area. He did so over departmental opposition and in the face of a perceived public interest in maximising the funds available from the exploitation of coal resources in New South Wales. It was also done in the face of departmental views that more exploration should be undertaken in order to identify the extent of the resource and a departmental belief that the more valuable resource was to the west. An inference that the action was taken in order to benefit the Obeid family may readily be drawn from this evidence. Further support for that inference may be derived from the almost daily contacts between Mr Macdonald and Mr Obeid Snr from the end of May until late June. These contacts included a lunch on 2 June, a telephone call on the evening of 4 June, telephone contact on the evening of 5 June, and further telephone conversations on three occasions on 10 June, On 11 June there was a breakfast meeting and then contacts between Mr Moses Obeid and Mr Obeid Snr at midday, 1.39pm and 4.07pm, and a further telephone call from Mr Obeid Snr to Mr Macdonald at 4.27pm. Mr Obeid Snr contacted Mr Macdonald at midday on 14 June, and Mr Macdonald contacted Mr Obeid Snr at 12.37am on 15 June and again at 10.03am. Twenty minutes later Mr Moses Obeid contacted Mr Obeid Snr. On 16 June Mr Moses Obeid contacted Mr Macdonald at 7.08am and Mr Macdonald contacted Mr Obeid Snr at 7.41am. Apparently following a meeting on 16 June at midday, Mr Macdonald contacted Mr Obeid Snr at 12.15pm and at 12.46pm. Mr Moses Obeid called Mr Macdonald at 12.17pm and Mr Obeid Snr contacted Mr Macdonald at 5.14pm, the call being returned at 5.35pm and at 6.07pm. Mr Macdonald had dinner with Mr Moses Obeid and Anthony Cummings at 6.30pm on 16 June. At 9pm, Mr Moses Obeid contacted his father. 2. There were other things happening during this period which allow for an inference that Mr Macdonald was keeping the Obeids informed of progress with respect to a possible coal release area at Mount Penny. Thus, Mr Rodd, a real estate agent who had been involved in the sale to the Obeids of Cherrydale Park, inspected Donola and had a discussion in relation to Coggan Creek with Mr Adlington, a real estate agent who had been involved in the sale of both properties. The chronology records that the inspections took place on 12 June 2008. 3. On 16 June 2008, at 1pm, Mr Moses Obeid contacted Mr JK Lewis, with whom he eventually made arrangements to purchase Donola. No doubt they had other interests in common, but it may not have been entirely coincidental that the contact occurred at a time when the Obeids were interested in purchasing both properties, but needed partners to do so. (5) Period 17 June – 30 June 2008 1. On 19 June 2008, Ms Moloney sent to Mr Mullard a list of seven companies which had registered an interest in coal allocation in the western coalfield (and a further list of companies with current titles in the western coalfields). Ms Moloney gave evidence that she undertook that task at the request of Mr Mullard. [255] It was based on "companies registered on the coal register for small areas" or the areas identified in the earlier document prepared for the Minister. By a further email on 19 June an updated list was attached which deleted Xstrata, leaving six companies on the first part of the list. Ms Moloney gave evidence that Mr Mullard had asked her to exclude the larger companies because "we were working on the remnant areas and looking at areas suitable for small to medium size companies". [256] Also on 19 June, Mr Obeid Snr contacted Mr Macdonald at 9.14am, followed by three calls between Mr Moses Obeid and his father. On 21 June Mr Obeid Snr contacted Mr Moses Obeid at 6.41am and, three hours later, contacted Mr Macdonald. Two hours later, at 11.43am he again contacted Mr Moses Obeid. 2. On 23 June 2008, Mr Obeid Snr contacted Mr Macdonald at 7.03am, followed by three calls between Mr Obeid Snr and Mr Moses Obeid and further contacts between Mr Obeid Snr and Mr Macdonald at 9.28am and then at 9.51am. 3. On the same day (23 June) Mr Rumore, a solicitor for the Obeid family, had a conference with Gerard and Paul Obeid to obtain instructions to prepare an agreement. The file note recording the proposed agreement was significant. It recorded instructions to prepare heads of agreement with persons identified as the "Boyds", to provide for a joint venture involving three properties, one owned by the Obeids and two being purchased by the Boyds, for farming/rural purposes as agreed from time to time. The file noted continued: [257] "Once EOI issues re coal lease, land value increases many fold (3 or 4 times)." 1. Arrangements were proposed for repayment of money invested by the Boyds together with a division of the value when negotiated with interested mining companies. 2. Given the stage to which matters had progressed within the Department of Primary Industries, the step of instructing solicitors on 23 June was prescient. An interest in purchasing Coggan Creek and Donola had first been demonstrated eleven days earlier when Mr Rodd and Mr Adlington had inspected the properties. The steps being taken by the Obeid family to interest parties in investing implied that the Obeid family was anxious to capitalise on the information they had despite the lack of available funds. Obviously, that fact alone did not provide a solid basis for an inference that the source of the information was Mr Macdonald: however, it was to be seen as a significant element in a chain of events. 3. At 4.45pm on 23 June Mr Macdonald met with Mr Obeid Snr. At 5.05pm, Mr Rodd offered a non-refundable option fee of $50,000 for a two-month option to purchase Coggan Creek. Mr Moses Obeid sought to contact his father at 5.57pm. Mr Obeid Snr left a message by voicemail with Mr Moses Obeid at 6.55am the following morning. There were ten further attempts by the two to contact each other during the day. There were further calls from Mr Moses Obeid to his father on the morning of 26 June. 4. On 26 June Mr Macdonald had lunch with Mr Fang. He contacted him again later that afternoon and twice on the following day. At some point prior to 2 July, Mr Fang's company, Tianda Resources was added to the list of small companies which had expressed interest in a coal allocation within the State (though not in the western coalfield). On the same day, Mr Rumore had a conference with Messrs Fang, Moses and Gerard Obeid. Mr Mullard gave evidence that he had been instructed by the Minister's office (through Mr Gibson) to expand the list so that it was not restricted to companies in the western coalfield [258] and was also asked by Mr Gibson to add Tianda Resources to the list. [259] 5. On 30 June 2008, Mr Rumore had a conference with Paul, Gerard and Moses Obeid. He was instructed that the Boyds were out and that the new partner was to be Tianda Group, "associated with one of ultimate bidders for coal development/lease of mining tenement". 6. It is convenient at this point to explain the evidence as it related to Mr Fang. Mr Fang was resident in China and did not give evidence. He was described at one point as "uncooperative". 7. Although resident in China, he visited Australia regularly and was interested in investing in Australian resources. Mr Gibson knew him as a friend of the Minister and believed that he met with Mr Macdonald every few weeks. [260] The meeting between the Minister and Mr Fang for lunch on 26 June and the further contacts noted above on 26 and 27 June, followed by Mr Moses Obeid contacting Mr Fang by SMS at 8.30am on 30 June, with a reply from Mr Fang at 10.38am, together with Mr Fang contacting Mr Macdonald at 11.18am, provide a powerful inference that it was Mr Macdonald who put Mr Fang in touch with Mr Moses Obeid. There followed two contacts between Mr Obeid Snr and Mr Macdonald on 30 June at 12.40pm and 1.46pm respectively, followed by other contacts between Mr Macdonald and Mr Fang at 4.10pm and 8.30pm. (There were also several contacts between Mr Moses Obeid and his father in the course of the day.) 8. Given Mr Macdonald's involvement in the steps taken in early June to have the Department identify a small coal resource area in the east of the Bylong Valley where he knew that the Obeid family held a property, the powerful inference that Mr Macdonald put Mr Fang in touch with Mr Moses Obeid leads to the further inference that it was he who had provided the information to the Obeid family, either through Mr Obeid Snr or through his numerous contacts with Mr Moses Obeid, as to the promotion of the coal release area which he had instigated. 9. It was not part of the prosecution case that Mr Fang or Tianda Resources was part of the agreement reached prior to 9 May 2008; rather that material provided the basis for an inference that the conduct which was undertaken later in May and during June to set the basis for release of the small area on the eastern part of the Bylong Valley was indeed a prearranged strategy. (6) Period 1 July 2008 – 14 July 2008 1. It will be necessary to return in due course to the evidence that the information and documents which appeared to be available to the Obeid family from no later than mid-June 2008 did not become publicly available through the release of the expressions of interest process until 1 September 2008. It will also be necessary to identify the evidence which supported the conclusion that the information and the documentation were treated by officers in the Department, and in the Minister's office, as confidential. There was also evidence from each of the witnesses who were called that he or she did not reveal publicly the information which was being supplied to the Minister's office. 2. On 1 July 2008, between 7.32am and 9pm there were eight contacts between Mr Obeid Snr and Mr Moses Obeid. There were also contacts between Mr Obeid Snr and Mr Macdonald at 7.39am, 8.28am, 1.29pm, 6.05pm and 9.16pm. Further, Mr Macdonald contacted Mr Fang at 1.21pm, 5.23pm, 5.34pm, 5.55pm and 5.58pm. There was contact between Mr Moses Obeid and Mr Fang at 3.42pm and 6.20pm. 3. It was Mr Moses Obeid who was actively pursuing the possibilities of the Obeid family gaining control of the two properties to the north of Cherrydale Park and developing a plan for the family's involvement in the commercial exploitation of the coal resource he understood to lie under the properties. 4. Some of the contacts may not have been substantial, but the ready inference, given the foregoing circumstances, is that many if not most of the contacts related to the coal release area adjacent to Mount Penny. On the following morning, at 6.50am, Mr Obeid Snr contacted Mr Moses Obeid; at 12.26pm, Mr Fang contacted Mr Moses Obeid. A quarter-of-an-hour later, Mr Moses Obeid contacted Mr Lewis. 5. Following the meeting between Mr Rumore and Paul, Gerard and Moses Obeid on 30 June 2008, at which time Mr Rumore was advised that Tianda Resources would be the new partner in the joint venture, there was a further conference with the three Obeid brothers and Mr Fang on the same day, in the course of which Mr Fang advised that Tianda Coal (Australia) Pty Ltd was to bid for "the coal lease". Mr Rumore noted (no doubt his own advice) that if the purchase of two farms was to be by an offshore company, there may be a need for FIRB approval. 6. There was a further conference between Mr Rumore, Mr Fang and Moses and Gerard Obeid on 2 July 2008. A more detailed (and complex) arrangement was proposed, apparently by Mr Fang, who was to establish a company (Great Western Coal Pty Ltd) of which Unen Coal Limited would be a shareholder and "Obeid Co" would take a 30% option in GWC, if it won the right to mine coal in the three properties. The following morning, Mr Rumore sent an email to the Obeids at 8.51am. It is clear that Mr Rumore thought Mr Fang had been playing for time before agreeing to a price and further stated: [261] "It is quite apparent that Mr Fang last evening was trying to have the price significantly reduced below your expectations and the expectations of your father. Would you please consider these matters, meet with Mr Fang and then come back to us." 1. Later on 3 July, Mr Rumore wrote to Paul, Gerard and Moses Obeid noting that on the previous evening he had been handed a copy of the contract for the purchase by Locaway of Cherrydale Park. He made a number of comments on the effect of the conditions and in particular the mortgage to Mr Cherry. The letter concluded: [262] "You will see that there are a significant number of provisions in the mortgage which would mean that, at the time the proposed mining licence is granted (assuming that it is granted) with respect to prospecting for coal or anything else on the property, the mortgagee's consent is needed and you may need to repay the loan out of the compensation received." 1. On the same day (3 July) Mr Rumore received a letter from the solicitors for the owners of Coggan Creek enclosing a draft deed of call option agreement and contract for sale. On Friday 4 July, Mr Rumore wrote again noting that the Obeids had cancelled a conference planned for the morning, noting the steps that needed to be taken and advising of his departure interstate on Monday 7 July. It is clear that in the first week of July the Obeid family was engaged in detailed preparation for the anticipated tender process for the issue of a coal exploration licence. 2. There was further contact on the evening of 2 July (after 5pm) between Mr Fang and Mr Moses Obeid. [263] In the meantime, Mr Moses Obeid had been in contact with Mr Brook whom he arranged to meet the next day. On 3 July 2008, a Mr Selby emailed Mr Brook at 1.48pm with a message, "time is going to blow out to 2.30pm are we still good?". [264] 3. Mr Brook had no prior involvement with Mr Macdonald or any member of the Obeid family until he was introduced by Mr Selby to Mr Moses Obeid at a meeting in the Wentworth Hotel on 3 July 2008. [265] Mr Brook recounted the conversation with Mr Moses Obeid in the following terms: [266] "He told me that they had acquired a property, a farm, in the Bylong Valley. That didn't mean too much to me as I was not familiar with New South Wales, but he said it was in the Hunter Valley. He said that they had acquired it and that it was the previous property of a fellow called John Cherry. That name also didn't mean anything to me, but he then told me it was Kerry Packer's tax accountant. He went on to say that it was a beautiful property and the reason they had bought it is because they believed there was a very large coal resource underneath, within the land, in situ. … He told me that they had acquired the land because they believed there was a coal resource there and that they had formed a landholders alliance, I believe that was the term he used. And his intention was, as he saw it, based on his investigations with consultants and geologists, that he wanted, or his family wanted, rather, to participate not only as landholders and receiving some level of compensation for people mining their land but also to participate at the mining level with respect to the exploitation of the resource." 1. Mr Brook was cross-examined by counsel for Mr Moses Obeid on the basis of evidence he gave before the ICAC on 12 March 2012 and on the basis of a statement made on 20 August 2013. [267] There were differences in expression, but the substance of the conversation was consistent across the various statements and his evidence at trial. 2. Mr Brook gave evidence that Mr Moses Obeid had "asked me whether I had any experience in natural resources and I responded to him in the negative, I did not have any experience". Mr Brook further recalled him "asking me whether Lehman Brothers had any mining companies as clients". [268] 3. The following day Mr Brook emailed a colleague stating, "I want to bid on a government tender, but I need a company that has a coal mining licence, preferably a private company". [269] He was referred to the principal of BBY, a stockbroking business in Sydney, to which he responded "thanks. BTW – timing is tight". He was asked in cross-examination: [270] "Q. And is it the case that you were saying 'timing is tight' because you needed information as soon as you could get it to be able to have something to discuss at the next proposed meeting with members of the Obeid family? Correct? A. No, my reference to 'timing is tight' was reference to Moses Obeid telling me - telling me at the first meeting that the invitations to tender for the exploration areas was imminent so the timing was tight from that perspective. I wasn't referring to information to gather in order to relay to the second meeting." 1. However, he agreed that one of the tasks he had set himself to do after the first meeting with Mr Moses Obeid was to try and identify a company with a coalmining licence. [271] 2. The second meeting at the Wentworth Hotel was attended by Mr Brook and Moses, Paul and Gerard Obeid. Mr Brook said that he commenced by explaining to Mr Paul Obeid the capabilities of Lehman Brothers and his role within Lehman. [272] He gave evidence to the following effect: [273] "My recollection is that Moses said that 'Paul, I mentioned to Gardner in our first meeting about our property and, you know, that we have a coal – we think we have a coal resource there' and then Paul went further to explain that, yes, they had every reason to believe that there was a large coal resource underneath their property." 1. In cross-examination, Mr Brook gave the following evidence: [274] "Q. Now, at the second meeting did Mr Paul Obeid say that the Obeid family had a farm in the Bylong Valley? A. Yes. Q. Did he say words to the effect that they thought they were Government tenders possibly coming out? A. Yes, he did. Q. Did he say that their property was sitting on two exploration licences? A. Whether he said 'two exploration licences', or not I'm certain, but he said they – he believes his property and the properties to which they had formed a land alliance with were sitting on a substantial deposit of coal, potentially. Q. Did he say that they were sitting on two exploration licences, one of which was expiring at the end of the month of July 2008? A. Again, I don't recall whether he mentioned anything about expiration of exploration licences. He told me that his land, his family's land and the land that made up their land alliance was potentially sitting on a large deposit of coal which would be the subject of an exploration licence tender which was coming up imminently. Q. I want to suggest to you that he said it 'might' come up but he didn't say 'would', what do you say to that? A. He didn't guarantee it. He said he believed it would be – he didn't say it would be one hundred per cent; he said he had reason to believe it would be. Q. And did he say it had access to water and railway line was nearby? A. Yes, he mentioned the railway line as being of strategic importance and he also mentioned that they had water and water rights which would be crucial to any further mining operations should they take place. Q. Did he say words along the lines that from his or Obeid family due diligence and enquiries, there might be a hundred million tonnes in one area and even more in another area? A. Yes." 1. It was then put to him that the topic of "land alliance" at the first meeting with Mr Moses Obeid was "either false or a reconstruction", which he rejected as untrue. [275] The cross-examiner then took him to a passage in his evidence to the ICAC on 12 March 2012 to the following effect: "Q. Do you remember Moses Obeid saying anything at that meeting regarding coalmining exploration leases – licences? A. Yes, I do. Q. What did he say? A. It was along the lines of that he believes he may have a property that is subject to an exploration licence and that the tender of those licences may be coming up in the future." He agreed that answer had been true and correct. 1. Other cross-examination in relation to the content of the discussion at the second meeting included the following passage: [276] "Q. Can you recall whether or not you have, on any previous occasion, told an ICAC interviewer or ICAC hearing that Mr Paul Obeid mentioned the concept at the meeting, of stage 1? A. Yes. Q. Can you recall any such record of interview or any such hearing of which you have said that Mr Obeid mentioned "stage 1"? A. I don't have a photographic memory with respect to every single statement I have made or even evidence I have given over the last 12 years, so if you direct me to it I can affirm whether I said or not, sir. Q. What I want to suggest to you in this, that you were told that the Cherrydale land had been purchased because it was a very beautiful – they said to you words to the effect of 'we've got this beautiful property'. Did they mention that to you? A. Yes, they did. Q. And did they (as said) say 'but they had reason to believe that there may be a substantial coal deposit under their property'? A. That is true, yes, they did. Q. And did you understand him to be saying to you that they just bought this beautiful property but had just found out that there may be coal underneath it? A. And they told me about the property and the gardens and they told me 'what a shame it is going to be when it becomes a mine site office'. Q. And he was asking you to assist if, at some stage, it became a mining venture, correct? A. They indicated to me they acquired the property and they believed there was coal underneath and they told me it is going to be a shame when the garden gets destroyed because they will need to [the?] land as mine site office." 1. The primary matter of dispute in relation to Mr Brook's evidence was his description of the maps that he was shown by Mr Paul Obeid at the second Wentworth Hotel meeting. His evidence with respect to the maps, given in chief, commenced: [277] "A During the course of that meeting, Paul produced a cylinder, like a map type cylinder that you see in the post sometimes or you see, you know, protecting, you know, larger pieces of, you know, larger pieces of paper, and he produced two – well my recollection is two maps; there might have been three. And he placed them on the table, which was a very large oval wooden table and so there was plenty of room to spread the contents of the cylinder out. Q. Can I ask you, in terms of your recollection about – you said two, possibly three maps, was each of those documents the same size? A. No. From my recollection, there was a large one. I'm not sure if it was A3 or maybe larger. And then there was another one which I think was a little bit bigger than A4. I'm not entirely sure about the exact sizes. It is a long time ago. But they were maps and they were not all of ordinary size with respect to an A4 page. Q. Again, dealing with each in turn, what colour was on the map documents?" There was then a break whilst the judge ruled upon the admissibility of a number of documents. 1. The cross-examination with respect to the maps did not challenge the conclusion that Mr Brook had been shown a government issued topographical map for "Bylong" with a post-it note showing the western boundary of the Anglo Authority. He stated that he had "never seen this map before". [278] He was asked if Mr Paul Obeid had showed him an original of the map and he denied it. [279] He was then shown a copy of a diagram of EL 6676 produced by DPI. It was not suggested to him that he had seen that map before. He was then asked to put it aside and it was suggested that he was "never shown a map at the second meeting with the members of the Obeid family that had any S-shaped red hatching on it". He responded: [280] "Not true. I did see that at the meeting. There was – they showed me a large map which indicated the S-shape which is the contiguous area to which you are referring, sir." 1. He was taken to his evidence on 12 March 2012 before the ICAC which commenced with counsel assisting telling him that two maps had been found in the office of Paul Obeid. The examination continued: [281] "Q. Did that make an impact on you? A. No, I was under cross – I was under examination. I had no opinion one way or another. Q. But you were there, as far as you could, to help the ICAC against Obeids who you considered were unworthy people, isn't that right? A. No, I was there defending myself because I was a person of interest by the ICAC. Q. And you didn't want to be in the gun sight, correct? A. It was made plain to me by the Commissioner that if I told the truth and was cooperative, it would go in my favour. If I told lies, then it would not go in my favour. Q. And if you thought you could give an answer that you thought may help your position, you would give that answer, wouldn't you? A. I gave many answers to the detriment of my credibility, sir. I was not lying under oath. I gave the best answer I could give based on my recollection at the time." 1. His evidence that Mr Paul Obeid had a tube with maps in it which were bigger than A4 size and included a large map which was black and white and printed in portrait was not challenged. [282] Mr Brook recalled the officer of the ICAC showing him two maps, "one I hadn't seen before and one I believe I had". [283] He was then shown a map titled "Mount Penny area" and identified as "Map 2" which he did not recollect the Obeids presenting to him. [284] 2. At the trial, he said that he was unable to confirm the correctness of those answers without being able to see the maps. He was not shown the maps. [285] 3. A further passage was put to him from the transcript of 13 March 2012: [286] "Q. Were you asked this question: 'For the sake of clarity again, when you were shown that map, that was before Monaro submitted its applications? A. Yes, it was. Q. Was it before Monaro had been invited?' Then the transcript shows '[long pause]' and you said: 'I'm not sure'." 1. At the trial Mr Brook said: "A. Yeah, well, that was – they obviously hadn't been invited by that stage when I was first shown the maps by the Obeids, so I'm not sure why I answered like that. Q. You might have answered that because one possibility is you're not telling the truth, do you agree? A. Oh, not at all, I'm telling the truth one hundred per cent. Q. Another possibility is that you may have seen the maps after Monaro had been invited, if one goes – A. Sir, I can even tell you – I can even tell you the names of the staff that were on that day at the Wentworth when they showed me the maps. I know -." 1. The proposition was put to him again that he may not have seen the particular map until after Monaro had been invited and he rejected that proposition. [287] It is clear that the map which he had been shown in March 2012 and denied having been shown by Mr Paul Obeid was Wiles Map 2. 2. However, in a statement dated 20 August 2013 prepared for the ICAC inquiry, Mr Brook stated [288] that he did not recall being shown a map titled "Mount Penny area" and dated 9 May 2008 (Wiles Map 1). He did identify Wiles Map 2 dated 30 May 2008 as having been shown to him by Paul Obeid at the meeting. 3. While the evidence given by Mr Brook at the trial was that he had seen Wiles Map 2 at the meeting at the Wentworth Hotel on 7 July 2008, Mr Brook's reliability was subject to significant challenges. These were put to Mr Brook by the prosecutor at the commencement of his evidence. 4. Mr Brook was cross-examined by counsel for Mr Moses Obeid with respect to his mental health, an injury he suffered in 2010, a disposition to lie and a period of alcoholism. While, with minor exceptions, Mr Brook accepted all that was put to him, it is necessary to recognise the full extent of the cross-examination, commencing with evidence he had given in the Federal Court in April 2016: [289] "Q. Do you recall being asked this question…: 'Q: Alright, so is it the case that from time to time, when it suits your purposes, you are prepared to lie? A. It is true that I sometimes, on occasion, usually under the influence of alcohol, said things which were not true. Yes, that's true.' Q. Do you remember giving that answer? A. Yes. Q. And was that answer correct? A. Yes. Q. And were you asked also whether or not you had from time to time published false curriculum vitae to business people; do you recall being asked about that? A. Yes. Q. Were you asked this question: 'Q. It is the fact that you have published from time to time false curriculum vitae to business people? A. That is true.' Q. Was that answer true? A. Yes. … Q. Did you agree with the proposition … that you sometimes have problems with alcohol? A. Yes. Q. And were you asked this question: 'Q. But is one of those problems that alcohol makes you lie? A. Yes.' A. Yes. Q. Was that correct? A. Yes. Q. Did you tell the Obeids, or any member of the Obeid family, that you were a qualified lawyer? A. No. Q. Did you tell the Obeids that you had qualified at law school? A. No. Q. Is it the case that you misled the Obeids as to what law course you had done at Monash University? A. No. Q. Well… on 7 April, I want to suggest this to you, you were asked some questions about qualified lawyer. One question was this: 'Q. And you did tell the Obeids that you were a qualified lawyer, didn't you? A. I believe I did. Yes, I lied.' Q. Do you stand by that answer? A. No, I don't. Q. Was it true that you gave that answer on oath in the Federal Court? A. It was true but that is not the case. I never made that representation to them. Q. Why did you give that answer in the Federal Court on oath? A. I – honestly, I don't believe I was thinking straight that day. … Q. Just to get it clear, is it the fact that you sat one law subject; is that right? A. No, I – to finish my Bachelor of Business degree I had to finish one more unit, so I did Industrial Law at the University of Melbourne, but I had enrolled as a graduate entry in 1999 in the Bachelor of Laws at Monash University but I did not complete that course. Q. Is it correct that at least in one version of your curriculum vitae, you had published that you had read law at Monash University? A. Yes, I've admitted that publicly, yes. As well as under oath, yes. … Q. You have, as I understand it, agreed that you have had problems with drugs and alcohol, is that correct? A. Prescription drugs and alcohol, that is true, yes. Q. And you are aware are you not, that you have been examined in respect of problems that you have had by medical personnel at Winslow Clinic in Singapore, is that right? A. I initiated the contact and the treatment, yes. … Q. And you, amongst other things, reported that during the period in 2008 you were under tremendous stress and anxiety in your work, is that right? A. Yes. Q. Did you report that during the period of the financial crisis in 2008 you had what you described as 'ups and downs financially'? A. Yes. Q. Did you report that you had slashed your forearm with a knife during the Lehman Brothers' financial crisis in 2008? A. Yes. Q. Had you done that? A. Yes. Q. Was it because of stress and anxiety. A. Yes. Q. Was it around about the time of July, August, September 2008? A. I believe it was September. Q. And did you also report that after a drinking binge sometime in 2010, you had a fall where you hit the back of your head resulting in a frontal lobe contusion? A. I had a very wet lunch, that's correct, and I slipped and fell and hit my head. Q. Did you report that since the head injury, you were suffering from retrograde and anterior grade amnesia? A. It took me – took me some time to regain my faculties, that is true. Q. Did you report that you had an inability concentrate? A. Yes. Q. Did you report that you had behaviour changes like greater irritability and disinhibition/impulsivity? A. Yeah, they're all very classic symptoms of frontal lobe contusion, yes. Q. Were you aware of a neuropsychological report and brain scan which confirmed findings of your cognitive impairment? A. Yes. Q. Did you report that you self-medicated with prescription drugs from a psychiatrist? Did you report that? A. Yes, sir. Sir, and you will notice they report, sir, that I provided all of that information to the psychiatrist. Q. Did you also report that you took alcohol for depression and anxiety as a result of the head injury? A. Yes. Q. Were you subject to a test [called] Beck Depression Inventory test? A. Yes. I remember and I was on the very severe side of things apparently. … Q. Can we take it that during the time of 2008, when you were meeting with members of the Obeid family, you were during that period drinking heavily, do you agree? A. I would – yeah, I think so, yeah. I think – I would be inaccurate to say that I wasn't a heavy drinker back then, that's right. Q. Did your heavy drinking continue until the conclusion of dealings with members of the Obeid family, which I think you put it sometime in 2009? A. I was struggling with alcoholism, yes, so I would say I was definitely still experiencing difficulties with respect to my drinking, yes. Q. Did you report to the clinic that you stopped drinking completely on October 13, 2012? A. Yes. Q. Have you been drinking at all since that time? A. The last time I had a drink was at Christmas time last year, a glass of champagne. Prior to that, not for six months. And I'm dry, completely dry. … Q. Do you still suffer from frontal lobe contusion? A. No. Q. How do you know? A. I know because I'm able to effectively carry out my work now and my memory – not just with this matter, I might add, but certainly with my family and past – is much, much better and my moods swings have stopped and I am able to live a consistent life which I admit previously I had not. Q. Would you agree with the proposition that you have, in this Court, reconstructed matters from memory of interviews or hearings at the ICAC? A. No, I don't accept that, sir." 1. The concession that he had a drinking problem in 2008 cast doubt upon the reliability of his recollection of events at that time. However, he continued to work with the Obeid family and, in particular, Mr Moses Obeid for some 14 months. It seems unlikely that the relationship would have continued for that period if Mr Brook had not been functioning at a reasonable level in the course of his work, on most occasions. His concessions that he had lied in the past were commendable, but cast a degree of doubt as to his truthfulness in relation to all matters. Nevertheless, the credibility of his evidence in the witness box was a matter primarily for the trial judge. The transcript does not provide a basis for doubting that he was seeking to tell the truth in giving evidence in 2020. 2. Of far greater concern is the possibility that his evidence involved reconstruction. It is often difficult for a witness who has been asked to recall an event or a conversation on numerous occasions to be sure whether, on the last occasion, the recollection is of the original event or a recounting of evidence previously given. As the present case demonstrates, witnesses who gave evidence at the ICAC hearings in 2012, including Mr Mullard, were not able to answer the same questions in 2020, but accepted the accuracy of the answers given in 2014, some six years earlier but six years after the events in question. 3. So far as Mr Brook's account of events of 3 July and 7 July at the Wentworth Hotel are concerned, there is a reasonable degree of consistency between the accounts he gave in 2012 and those he gave in evidence in 2020. No doubt much was missing and some statements were expressed in different terms. Nevertheless, the substance was in each case the same. Further, as has been explained, the chronology of events leading to those meetings, much of it verifiable from the documentary records, supported the likelihood of such matters being raised in the meetings at the Wentworth Hotel. 4. The principal issue for present purposes is whether credence should be given to Mr Brook's evidence that he was shown what is now known as Wiles Map 2 by Mr Paul Obeid at the second meeting on 7 July 2008. He was first shown documents at a private hearing of ICAC on 12 March 2012 in the following circumstances: [290] "[Counsel assisting]: Now, I want to ask you about this and I want to show you a bundle of documents which we got in this fashion. I want you to assume I could prove that some people went in to the office of Paul Obeid with an appropriate warrant and scooped up a manila folder off his desk and they found four documents. Two of them are maps and I want you to have a look at the maps and I want to ask you do you recognise whether they are maps which at one stage or another were shown to you by some member of the Obeid family? – One of them was, sir. Which one? One is dated 30 May, 2008 and the other is dated 9 May, 2008? – The 30 May, 2008. That was definitely shown to you? - Yes. … So when did you see these, Mr - ? – that map, Commissioner, I saw not long after first meeting Mr Obeid." 1. The following day, 13 March 2012, Mr Brook was interviewed by two officers from the ICAC and the interview was recorded. The questioning tended to focus on the involvement of Monaro Mining, and the questions did not seem to follow any chronological order. Mr Brook was shown a number of documents and the transcript on numerous occasions records "[long pause]", and in other places "[reading document]". More than halfway through the interview, in a passage where the question was largely untranscribable [291] but appears to have foreshadowed an intention to clarify something that had been said at the private hearing the previous day, the officer, Mr Tim Fox, asked: "Fox: I think you said map two – Brook: Yeah. Fox: - is the one you remember seeing - Brook: Yeah. Fox: - with – and that's North Bylong, Mount Penny and you saw – Moses showed you that map – you think at the Wentworth or – Brook: Yeah it was at the Wentworth, yeah" 1. Mr Fox then diverted to an entirely different question relating to visits to the Obeid premises at Drummoyne before returning to the topic: [292] "Fox: So just to clarify that map, that was – can you just clarify where you saw it again? Brook: I believe it was at the Wentworth. Now that map, I didn't know where it came from. I assume they got of Mick [sic]. Can I clarify something? In the press they have made me out as being a resource expert, alright. I'm not. The first resource deal I ever did or tried to do was this. I was learning as I went. So when I say that map I thought they'd got it of [sic] some sort of, you know local thing but, did you want me to explain that map to you a little further? Fox: No, no its alright, its just – Brook: I'm happy to if you want. Fox: In the context of you – Brook: No not that one, the other one. The reason why he showed me the map okay, the reason why he showed me the map was apparently his property is in here somewhere. Fox: You pointed to the Mount Penny area obviously at Bylong. Brook: Yeah and then there is a contiguous, as I mentioned contiguous. See this just looks like something they got of [sic] a website or whatever. So they pointed to this but then they said you know what [long pause] ah what is it – they think there's a much bigger resource here and that's the contiguous area and that's why within this it refers to other areas or you know – Fox: And also in the deal that you signed with Cascade? Brook: Yeah that's right, exactly. But I was of the understanding that they had – I mean I did not know, I still don't know how they got the, got that map but I was of the view because they told me they'd been engaging geologists and they'd been engaging consultants to understand the area. Fox: And just for the sake of clarity again – when you were shown that map that was before Monaro submitted its applications? Brook: Yes it was. Fox: Was it before Monaro been invited? Brook: [Long pause] I'm not sure. Fox: When you met at the Wentworth, was that something, was that a, was that a trend of meetings that ceased at a particular point? Did you stop meeting there and then revert to meeting at the premises at Drummoyne or ? Brook: No, no, no it was just – I was at Governor Phillip Tower and it was just convenient to catch up for a coffee. I mean most of the time – Fox: So how many times, how many times did you meet Moses at Wentworth hotel?" 1. Mr Fox then began to refer to "the application" and Mr Brook's presence at "the board meetings". 2. Although this was the second reference made by Mr Brook to the Wiles Map 2, it was almost in passing, in the course of a rambling interview which was conducted without chronology or coherence. The apparent uncertainty expressed at one point by Mr Brook, with respect to the Monaro applications, although relied upon by counsel for Mr Moses Obeid at the trial, has no obvious significance. 3. There were several noteworthy aspects of the first two statements of Mr Brook concerning the second meeting at the Wentworth Hotel. First, although it is true that when counsel assisting first showed him the two maps, he was advised that they had been obtained from the offices of Mr Paul Obeid, he immediately recognised one but not another. Had he simply been giving an answer which he thought was expected, he might have claimed to recognise both. Secondly, although the lengthy interview the following day with Mr Fox dwelt almost entirely upon later events and the relationship with Monaro Mining, when asked about the map he had identified the previous day, he immediately confirmed that it was the one he had seen at the Wentworth Hotel. It was clear from Mr Fox's response that he had no clear concept of when that occurred and appeared to assume (wrongly) that it post-dated a number of meetings that had been held in Drummoyne. Thirdly, the reference to the "contiguous area" involving a "much bigger resource" was consistent with Mr Brook having in mind a map which demonstrated coal reserves in the area where he had been told the Obeid's property was situated, together with a much more extensive area of coal reserves. That is entirely consistent with the sideways figure S shown on Wiles Map 2. 4. Fourthly, although it again demonstrates confusion on the part of the ICAC officers and Commissioner, in the course of the first interview at the private hearing on 3 July 2008, the following exchange took place: "Do you remember Moses Obeid saying anything at that meeting regarding coal mining exploration leases – licences? – Yes, I do. What did he say? – It was along the lines of that he believes he may have a property that is subject to an exploration licence and that the tender of those licences may be coming up in the future. The Commissioner: I'm not sure that I understand that. He said that he had a property that was already the subject of an exploration licence or that it was ---? – I don't believe he said it was already, I think it was … as I understand it is that any block of land, any section of land can at times be placed under an exploration licence and my recollection of the conversation which is very vague because it was so long ago was that he indicated that he had a property which may be potentially or is under an exploration licence which will be put up to tender soon." 1. While the Commissioner continued to explore the distinction between being already under a licence and being open to public tender, in fact Cherrydale Park was subject to EL 6676 (granted to the DPI), which was noted on Wiles Map 2. Far from being coached, Mr Brook was giving what appears to have been accurate information to the Commissioner, which was not fully understood by those conducting the interview. 2. Fifthly, Mr Brook's description of the conversation at the first and second Wentworth Hotel meetings was, consistently, that neither Moses nor Paul Obeid acknowledged the source of their information as to the coal resource under Cherrydale Park, despite the fact that they were sufficiently confident in their knowledge that they were seeking to obtain finance to allow them to join in an arrangement with a mining company. The suggested sources of the information, largely as rumour and gossip, were unlikely to have warranted such activity. On the other hand, it is quite plausible that they did not reveal the true source of their information to Mr Brook at their first and second meetings with him. 3. There are other reasons for giving credence to Mr Brook's identification of the one map that he recalled being shown in the course of the second Wentworth Hotel meeting. So far as the evidence before the Court was concerned, there was no other satisfactory source of detailed information as to a coal reserve lying under Cherrydale Park and the adjoining properties. Secondly, the reference to the contiguous zone which might also be available for exploration, provided a powerful connection with the sideways S on Wiles Map 2. Thirdly, each of the witnesses from the Department and the Minister's office who gave evidence was asked whether they considered the maps prepared by Ms Wiles to be confidential (each said they were) and each was asked whether he or she had provided copies to anyone other than a person within the Department or the Minister's office who requested them and was entitled to see them (each denied doing so). 4. The first documentary record of Mr Brook stating the evidence he was to give in relation to the Wentworth Hotel meetings was dated 20 August 2013. That was an orderly and concise statement which annexed the two maps being Wiles Map 1, which he did not recollect being shown to him by Paul, Gerard or Moses Obeid at that meeting or at any other time, and Wiles Map 2, which he did recall Paul Obeid showing him and identifying where their farm was and the area in which they had a "land alliance" with adjoining property owners. 5. The possibility that there was unconscious reconstruction thereafter may have been significant. However, there was little basis in the evidence to support a conclusion that there was unconscious reconstruction arising from the steps taken by ICAC officers in March 2012. 6. There was no evidence of any relevant communications with ICAC officers before he gave evidence at a private hearing in 2012, nor beyond that hearing, as to the basis on which he was able, on 6 March 2013, to sign a statement which identified Wiles Map 2 as one of the maps which had been shown to him at the meeting in the Wentworth Hotel. No doubt the ICAC officer should not, before getting Mr Brook's evidence, have told him that Wiles Map No 2 had been found in 2011 during a search of the premises of Locaway Pty Ltd, the company through which Cherrydale Park was purchased and which was under the control of Mr Paul Obeid. Nevertheless, Mr Brook gave evidence that he had seen maps at the second Wentworth Hotel meeting, and, whilst able to give only a vague description of their size and nature, could say with apparent confidence, when shown two particular documents, that he had seen one but not the other. 7. There remains the problem arising from the time between the events of July 2008 and his interview with the ICAC officer in March 2012. It was not merely a question of the lapse of almost four years between the two events; the period of 2008-2009 was one in which there was opportunity for Mr Brook to have seen the maps on other occasions. 8. In this respect, the appellants suggested that he was shown the map by an officer from Monaro Mining. That suggestion was speculative and was not put to either of the officers of Monaro Mining who gave evidence. 9. Furthermore, if Mr Brook were correct in his belief that he had seen Wiles Map 2 it was by no means clear how that could have occurred innocently, in circumstances where it was a confidential DPI document and was not released as part of the package provided to those from whom expressions of interest were sought. Mr Macdonald submitted that it could have been released by an officer in the Minister's office (presumably without the Minister's direction), [293] but Mr Mullard denied that in his evidence, [294] as did other possible sources within the department or the Minister's office, particularly Mr Gibson. [295] 10. Mr Brook's evidence with respect to the map he was shown at the second Wentworth Hotel meeting on 7 July 2008, first given four years later, left open a reasonable doubt as to its accuracy and reliability. However, it was not entirely without weight and was material properly taken into account as part of the circumstantial case put forward by the prosecution. 11. In short, Mr Brook's evidence was that he met with the Obeids, of whom he had no prior knowledge, in circumstances when they were presenting to him a plan to be involved at the mining level with the exploitation of a coal reserve under their property and under adjoining properties. There was evidence that they were seeking to purchase or arrange for associates to purchase the adjoining properties. There was no evidence of any map in the public domain at that time which identified an extensive coal reserve under Cherrydale Park and the adjoining properties, with an even richer resource in a contiguous area. Yet there can have been no purpose in having the meeting unless the Obeids were able to demonstrate to Mr Brook that they had a significant coal resource under their land. That he was shown a map was not in dispute; that the map must have been one which provided evidence of a significant coal resource is highly probable. That it was the map which Mr Macdonald had had prepared in order to identify the coal resource in the Bylong Valley, namely Wiles Map 2, is at least probable. (7) Seventh act of misconduct – list of companies 1. The evidence that the Obeids were planning to be involved in any exploration licence "at the mining level", rather than merely as affected land holders, was comfortably established by evidence of their attempts to engage Monaro Mining in the first stage of the EOI process. That approach is confirmed by the attempts by Mr Brook immediately following the meeting with Mr Moses Obeid on 3 July 2008 to obtain information about possible coal mining companies with whom he might be able to do business. 2. The seventh particularised act of misconduct alleged that on or after 7 July 2008 Mr Macdonald caused the Obeids to be provided with a document titled "company EOI 2 July 2008" containing a list of companies proposed to be invited to participate in the EOI process or, in the alternative, information as to the companies on that list. 3. The list contained three categories. The first identified six companies which had registered an interest in a coal allocation in the Western Coalfield; the second, companies with current titles in the Western Coalfields, and the third, other "small companies" which had expressed an interest in coal allocations elsewhere in the State. 4. The existence of the list and the means by which it came into being were not contested. The trial judge found: "1370 At, or shortly after, a meeting at Parliament House on 17 June 2008 convened by Mr Macdonald and attended by Mr Gibson and Mr Mullard, Mr Macdonald asked Mr Gibson to have the DPI prepare a list of mining companies who might be suitable to be invited to participate in the EOI process for the release of a number of small to medium coal release areas, including what had come to be described, by that date, as 'Area 7', the coal release area described in the Ministerial Briefing prepared for that meeting as 'Mount Penny'." 1. The first version of the list, prepared on 19 June 2008 by Ms Moloney, and emailed to Mr Mullard on the same day, included information derived from the "Coal Register". The Coal Register was a document in which Ms Moloney recorded companies which had expressed an interest in exploiting coal resources. She regarded the document and the information contained as confidential and not available to members of the public. [296] 2. The first version of the list contained only the first two categories of companies. A second version, also prepared on 19 June, contained the same two categories, but with the large companies excluded. Mr Mullard explained the instruction given to Ms Moloney in that regard in the following terms: [297] "The discussion was that we needed to remove the large companies from the list because it wasn't consistent with what the Minister was wanting to do, which was restrict the EOI areas to the smaller to medium companies." 1. A third version of the list was prepared on 2 July 2008, which included the third category. Mr Mullard's evidence as to the revision was as follows: [298] "Q. So this list at [Ex A, page 1053], the purpose of this list was a list of companies, small to medium companies, proposed to be invited to participate in the EOI? A. Yes, it is. Q. The Minister had asked for a copy of a list of companies? A. Well, what happened was we provided the list of companies just for the Western Coalfields and I had a subsequent request from the Minister's office, I believe through Jamie Gibson, to expand the list, not just restricted to companies in the Western Coalfields. So that resulted in the expanded list." 1. Mr Mullard gave evidence that the 2 July list had been provided to the Minister's office and stated that he got a further communication from Mr Gibson to add an additional name to the list, which was Tianda Resources. [299] Tianda Resources was a company associated with Mr Fang. [300] 2. At 11am on 7 July 2008, Mr Macdonald and Mr Gibson met three members of the Department, including Mr Mullard, to discuss coal reserves and the coal allocation policy. Mr Gibson gave evidence that he recalled attending the meeting. [301] Mr Gibson also gave evidence that he had seen the 2 July list of companies and stated that the document had been provided to the Minister's office in a form of a briefing note from the Department. He said that it was given to Mr Macdonald. [302] 3. There was other evidence that the list was discussed at the meeting with the Minister on 7 July 2008. The meeting was one of a series of weekly meetings between the Minister and his Director-General, Dr Richard Sheldrake, and was attended by Mr Sheldrake. His handwritten note of the discussion at the meeting, under the heading "action" stated, "get list together of small symbol less than 150 Mt mines 6-7 companies". There was specific reference to Mount Penny as a less than 100 Mt resource. The note also referred to a package (to be prepared, apparently by 21 August). 4. Mr Mullard recalled attending the meeting with Mr Coutts, recalling the discussion in the following terms: [303] "A. It was discussion about the proposed EOI process for the smaller western areas, as well as the larger release areas. The Minister was very keen to get additional areas out. [Upon being shown Dr Sheldrake's notes, and the reference to "list":] … Q. Do you see that? Do you recall the topic of a list being discussed at the meeting with the Minister? A. There was a discussion at the time of a list of the companies who would be invited, yes." 1. Mr Mullard also accepted as correct evidence he had given to the ICAC inquiry in November 2012 that it was "highly likely" that he had taken Ms Moloney's list to the meeting in the form of a hardcopy. [304] 2. On Friday, 4 July 2008, Mr Macdonald called Mr Obeid Snr on four occasions. On Monday, 7 July, Mr Moses Obeid called Mr Macdonald at 11.42am and 2.19pm. At 2.30pm he eventually got through to someone in a one minute and thirteen seconds call. On 8 July, Mr Moses Obeid called Mr Macdonald and spoke for two minutes and thirty-six seconds, followed by two calls to his office at 8.32am and 10.38am that morning. At 12.30pm on Tuesday, 8 July 2008, Mr Macdonald met Mr Moses Obeid at the Sydney Hospital Cafe in Macquarie Street. [305] 3. The following day, 9 July 2008, Mr Moses Obeid met Mr Brook and, according to Mr Brook's evidence, gave him a handwritten list of companies, which he emailed to himself the next day. [306] The email and the list were in evidence. [307] There was also expert forensic evidence, accepted by the trial judge, and not challenged on the appeal, that it was "highly probable" that the handwritten list was prepared by Mr Moses Obeid. [308] The list contained fifteen names. The first six were the companies which had registered an interest in coal allocations in the Western Coalfields (Ms Moloney's first category) with one exception – the name "White Mining" had been replaced by "Felix Resources". A statement of agreed facts noted that White Mining was a member of the Felix Resources Group. [309] Mr De Ross, the General Manager of Tianda Resources Australia between December 2007 and December 2009, in cross-examination by counsel for Mr Macdonald, agreed that Mr Macdonald's contacts had organised to put Tianda Resources together with Felix Resources in making an application for the Watermark coal project. [310] The relationship between Felix Resources and White Mining was known to Mr Coutts in the DPI and was likely known to Mr Macdonald in July 2008. 4. The next seven companies listed on the handwritten list given to Mr Brook were the coal companies with current titles (Ms Moloney's second category), with the exception of "Enhance Place" which was already on the list as a company in the first category. The other two companies on the handwritten list were Tianda Resources (which the evidence indicated had been added to the list of other companies (category 3) at the request of Mr Macdonald) and Donaldson Coal P/L. There was no evidence as to the provenance of Donaldson Coal. 5. There is a high probability that the list provided to Mr Brook on 9 July 2008 by Mr Moses Obeid was derived from the 2 July 2008 list prepared by Ms Moloney. The evidence also established that Mr Macdonald had the list, no later than 7 July 2009 and showed the list to Mr Moses Obeid when he met him at the Sydney Hospital Cafe on 8 July 2008. The changes to the 2 July list, as recorded by Mr Moses Obeid on his handwritten list, are readily capable of explanation as being information provided at the meeting by Mr Macdonald. Any alternative hypothesis as to how the list came into the possession of Mr Moses Obeid must, in the circumstances, be speculative and insufficient to raise a reasonable doubt as to the events described in the seventh act of misconduct. 6. The evidence that members of the Department and Mr Gibson in the Minister's office regarded the information contained in the list as confidential and of a kind that they would not and did not release to any member of the public, together with the inferences to be drawn from the process by which the list was prepared, satisfy the element of confidentiality. That the material was provided to Mr Moses Obeid for his personal commercial benefit demonstrates that the Minister breached his duty of impartiality in providing the information. Accordingly, there is no basis to entertain a reasonable doubt as to the correctness of the finding that the seventh act of misconduct was established. (8) Eighth act of misconduct – coal allocation areas 1. Mr Rumore was away for the week of 7 July 2008, but sent an email to Mr Gerard Obeid (copying Paul and Moses Obeid) with respect to "sale of Coggan Creek Bylong", on his return on Monday 14 July. He asked about developments with regard to "negotiations with Mr Fang and Tianda Group with respect to this transaction". 2. Mr Brook gave evidence that when Mr Moses Obeid gave him the list of companies, he asked him to "research the list and identify any companies that [I] thought might suit Lehman Brothers' profile to approach, in order to start a conversation about potentially partnering with them in order to make an offer or make an application to achieve a bid on an exploration licence". [311] He said that he did, and was able to identify information with respect to Monaro Mining NL because it was a public company. He said that access to information as to the financial standing of other companies was limited if not impossible. [312] He described the position of Monaro Mining in the following terms: [313] "They had spread themselves very thin with respect to managing multiple uranium mining projects around the world. They were financially weak. So in my thinking, I thought they would be very receptive to a knock on the door from a bank like Lehman Brothers who was working in concert with respect to a landholders alliance with a forthcoming government tender coming forward." 1. Mr Brook did in fact contact Monaro Mining and made an appointment to meet with Mr Mart Rampe on 15 July 2008. Mr Rampe identified a note of the meeting as being in his handwriting. [314] The document relevantly read: [315] "Gardner Brook Lehman Bros. 1. Clients in India willing to take off-takes. 2. He knows about our interest in NSW coal. 3. 3rd party wants to JV. * Do not want operational control. * Passive investor. 4. Lehman (& clients) to support project." 1. Although Mr Rampe appeared somewhat dismissive of Mr Brook's approach to him (of which he said he had no prior notice), the Chairman of Monaro Mining, Mr Warwick Grigor expressed immediate interest and arranged to meet Mr Brook the following day (16 July 2008) at Lehman Brothers' offices. 2. On the same day, 16 July, Mr Rumore sent a tax invoice to Mr Brook relating to the incorporation of Voope Pty Ltd and "negotiations with regards to Voope Pty Ltd and Monaro Mining NL and Leham (sic) Brothers entities". [316] 3. On 17 July 2008, Ms Moloney wrote to Mr Rampe in the following terms: "I refer to our previous correspondence and our meeting with you in May regarding Monaro Mining's expression of interest in an allocation for a coal exploration licence in the Western Coalfield. I confirm your interest in a coal allocation in the Western Coalfield area will remain on the register. As you are aware a number of companies have expressed an interest in an exploration licence allocation in the area you have nominated. Due to this high level of interest the Department is undertaking a review of the geology and coal resource potential of the area before proceeding with any recommendations on the future allocation of the area." 1. On 18 July 2008, Ms Moloney emailed to Mr Mullard a map of "proposed EOI areas", a document headed "potential coal release areas July 2008" with a short description of each. Under the heading "Western Coalfield, there were six areas, including "Mount Penny". The email also included the document entitled "company EOI July 2008" which included five categories (the additional one relating to the Gunnedah Coalfield). 2. Mr Brook gave evidence that he reported his contact with Mr Grigor and Mr Rampe to Mr Moses Obeid in person, more than likely the next day, and probably in the morning. [317] 3. On 18 July 2008, Moses and Gerard Obeid had a further meeting with Mr Rumore, advising him that the deal with Tianda was off and there was a new contact, Gardner Brook at Lehman Brothers who was liaising with Monaro Mining NL. Details of the proposed joint venture were noted. [318] 4. Although the eighth act of misconduct merely identified that two documents were caused to be given to the Obeids by Mr Macdonald "on or after 23 July 2008" the prosecution case was that they were conveyed before the opening of the EOI process on 9 September 2008. However, Ex G contained the following agreed facts: "40. The Expression of Interest Information document for the 11 coal release areas, issued by the DPI on 9 September 2008 and reissued by the DPI on 8 January 2009, referred to a 'Coal Release Data Package'. 41. The Coal Release Data Package was available on a DVD for purchase from the DPI. There was an original DVD and an updated DVD, which comprised geological data and reports relating to the 11 coal release areas. Neither the original DVD nor the updated DVD contained any maps prepared by the DPI during 2008. In particular the original DVD and the updated DVD did not contain: (a) map titled 'Mt Penny Area' prepared by Leslie Wiles on 9 May 2008 (Wiles Map 1); (b) map titled 'North Bylong – Mt Penny Area' prepared by Leslie Wiles on 30 May 2008 (Wiles Map 2); or (c) map titled "Proposed EOI Areas" prepared by Fred Schiavo on 21 July 2008 (Schiavo Map 3)." 1. A finding that Mr Macdonald caused the documents, the subject of the eighth act of misconduct, to be provided to the Obeids depended upon a number of inferences, namely that: 1. Mr Macdonald had access to the documents; 2. he had the opportunity to provide the documents to Moses or Edward Obeid; 3. he wished to do so; 4. the Obeids obtained the documents; and 5. there was no alternative plausible supplier. 1. The first inference, that Mr Macdonald had access to the documents was readily available on the evidence. On 23 July 2008, the DPI provided a Ministerial briefing to the Minister in relation to the coal allocation proposals. Schiavo Map 3 was part of the briefing documents. [319] There was an email exchange between the DPI and Mr Gibson in the Minister's office confirming that the briefing was provided to the Minister's office. [320] Mr Gibson gave evidence that such briefing materials would be supplied to the Minister as soon as reasonably possible after they were received in the office. The Ministerial briefing contained a page headed "medium coal allocation areas", with a brief description of four areas, including Mount Penny in the Western Coalfield. It also contained a "timeframe for all medium expression of interest (EOI)". However, the entry for Spur Hill in the Hunter Coalfield (the second item in the list) was not the same as the entry on the copy which was later identified by Mr Brook as the document he received from Mr Moses Obeid. However, a document identical to the one obtained by Mr Brook was to be found in a memorandum prepared by Mr Alan Coutts and provided to the Director-General, dated 5 August 2008. [321] 2. On 14 August 2008, the Minister met at 9am with the Director-General, Mr Sheldrake, the Deputy Director-General, Mr Coutts, Mr Mullard and Mr Gibson. [322] The evidence supported a finding that Mr Coutts' memorandum was discussed at the meeting on 14 August. Mr Coutts gave evidence that he recalled the meeting and that the information in his memorandum was discussed with the Minister. [323] Dr Sheldrake did not recall seeing the document in August 2008 but agreed that his handwriting appeared on it and that his personal assistant had written "papers from meeting on 14/08/08 9am" at the top of the meeting invitation. [324] 3. Although the evidence is not conclusive, given that the contents of the memorandum were discussed at the meeting with the Minister on 14 August, it is a reasonable inference that the Minister was provided with a copy of the document which contained the information. 4. On the evening of Thursday, 14 August, Mr Macdonald met Mr Obeid Snr at Parliament House, the meeting being fixed for 30 minutes. [325] Mr Macdonald met Mr Obeid Snr again on 20 August 2008 at Birkenhead. [326] (The Obeid family company had an office at Birkenhead.) There can be no doubt that there was ample opportunity for Mr Macdonald to personally provide documents to Mr Obeid Snr during the relevant period. 5. There was documentary evidence that Mr Brook had the documents on 22 September 2008. Mr Brook gave evidence that he had his secretary retype the document and email it to him on 22 September 2008. [327] 6. Mr Brook agreed that certain changes had been made to the document, those in relation to Mount Penny included the additions "100 Mt High Grade Thermal Coal – Stage 1" and "700 Mt High Grade Thermal Coal – Stage 2". Mr Brook said that those changes had been made on the basis of information supplied by Mr Moses Obeid. [328] Mr Brook emailed the description of the coal mining areas (as retyped) and the map (Schiavo Map 3) to Mr Barry Yin, a Chinese investor whom he was seeking to interest in supporting Monaro Mining, immediately following the collapse of Lehman Brothers. 7. Mr Brook said in his evidence in chief that he believed he was given the coal release allocation areas by Mr Moses Obeid, together with the additional information which he included in the retyped document, in the period from late July to early September 2008. [329] 8. As noted above, in the discussion concerning common ground 5, senior counsel for Mr Moses Obeid cross-examined Mr Brook on the basis of evidence he had given before the ICAC to the effect that it was either Monaro or Mr Moses Obeid who gave him the two documents. [330] Mr Brook considered it more probable that the documents came from Moses Obeid. [331] Further there was simply no evidence that officers of Monaro Mining had those documents at that time. They were not part of the package provided with the EOI process. Neither Mr Grigor nor Mr Rampe suggested that they had had copies of those documents. The possibility was not put to either of them. 9. On the other hand, while the Departmental officers denied that they had given the documents to any member of the public or interested party, for reasons outlined above, the evidence supported the inference that Mr Macdonald had access to the documents and the opportunity to provide them to Mr Obeid Snr or Mr Moses Obeid. There was no evidence that Mr Macdonald provided documents to Monaro Mining. Accordingly, the better view is that they came to Mr Brook via Mr Moses Obeid and thus from Mr Macdonald. That conclusion is strengthened if it is accepted that other documents were provided to the Obeid family by Mr Macdonald, including Wiles Map 2. 10. While the eighth act of misconduct was not established beyond reasonable doubt, the probabilities are in favour of the conclusion that it was correct. Unreasonable verdicts – other matters Other particulars 1. Having addressed the evidence globally, it is necessary to return to the "particulars" of unreasonableness which constituted the structure upon which the appellants addressed ground 2 and which have not been addressed. 2. First, particular (d), identified at [341] above, challenged a finding as to Mr Moses Obeid's participation in the conspiracy as at 9 May 2008. The primary submission in support of this particular was that the judge's finding against Mr Moses Obeid was "based entirely on his conduct from 30 June 2008 onwards". [332] While a strong inference of involvement in the conspiracy may be drawn from Mr Moses Obeid's vigorous pursuit after 30 June 2008 of the commercial exploitation of the coal under Cherrydale Park, that did not demonstrate that he was party to the conspiracy from 9 May 2008. However, there was other evidence to support the conclusion that he was involved from a date well before 30 June and by 9 May 2008. As discussed in addressing ground 5(1), the conversations with Peter and Nicole Fitzhenry demonstrated knowledge on the part of Mr Moses Obeid of there being coal under Cherrydale and that Moses Obeid approached Mr Fitzhenry to purchase Coggan Creek. The evidence supported the conclusion that there had been a conversation prior to 9 May 2008 "in which Mr Moses Obeid demonstrated excitement as to the prospect of an exploitable resource under Cherrydale". [333] 3. Mr Fitzhenry gave evidence that he had met Mr Macdonald in the driveway of Moses Obeid's house and Mr Obeid had introduced him, saying, "This is Macca". [334] On another occasion, while he was in a room with Moses Obeid who was speaking to Mr Macdonald, Moses Obeid handed him the phone, and Mr Fitzhenry gave Mr Macdonald a tip for the races on the coming Saturday. [335] 4. The telephone call records involving the Obeids and Mr Macdonald have already been considered, but it is convenient to return to them in this context. First, although it is clear that Mr Moses Obeid had a social relationship with the appellant (referring to him, as Mr Fitzhenry noted, as "Macca") the telephone records from 1 January 2007 reveal little contact until 27 September 2007, being the time that Cherrydale Park was purchased. There was one call by Moses Obeid to Mr Macdonald on 27 September, followed by two calls on 4 October 2007, a further call on 10 October, and one on 11 October, together with three further calls on 13 October, one initiated by Mr Macdonald. There were two calls on 20 October, three on 10 November and two on 11 November 2007. There was a further call of five minutes and twenty seconds initiated by Mr Macdonald to Moses Obeid on 17 November, two calls on 1 December and three further calls on 8 December 2007. There were further calls throughout December. There was a five-minute call from Moses Obeid on 22 January 2008, two calls initiated by Mr Macdonald on 2 February and a further four-minute call initiated by Mr Macdonald on 9 February 2008. On 16 February, there were several brief contacts and a seven minute thirty second call initiated by Mr Macdonald. There were eleven calls in the first eleven days of April 2008. 5. While, taken in isolation, the fact of the calls (the content of which was not the subject of evidence) does not give rise to an inference as to Mr Moses Obeid's involvement in the conspiracy prior to 9 May 2008, the existence of a social relationship, together with the concentration of calls at times when independent evidence (referred to below) revealed that Mr Moses Obeid was involved in exploring the possibility of there being coal under Cherrydale Park, form the basis for an inference that some of his communications with Mr Macdonald were directed to exploring the possibility of exploiting the coal. That evidence, with further evidence as to Mr Moses Obeid's involvement in January/February 2008 discussed below, provided ample support for the conclusion that Mr Moses Obeid was involved in the conspiracy from a date prior to 9 May 2008. 6. The substance of the challenge to this particular under the unreasonable verdict ground did not focus on the evidence, but on the scope of the judge's conclusions based on events after 30 June 2008. It was true that that passage in the reasons, taken in isolation, did not support a finding as to earlier involvement of Mr Moses Obeid. [336] But the function of the Court in addressing ground 2 is not to review the judge's reasons but to consider the evidence. The appellant's submissions did not engage with this task. However, the evidence did not provide a basis for a reasonable doubt as to Mr Moses Obeid's involvement as at 9 May 2008. 7. Particular (c) in Mr Macdonald's submissions stated that there was a reasonable hypothesis that Mr Macdonald was not aware that the Obeids owned a property in the Bylong Valley as at 9 May 2008. This was the factual matter upon which ground 3, alleging the failure to give a Shepherd direction, was based. However, there were several circumstances which supported the finding that Mr Macdonald knew of the Obeid family interest in Cherrydale Park well before 9 May 2008, when he took the first step in carrying out the conspiracy. 8. First, the uncontested evidence was that the sale contract with Mr Cherry as vendor was signed on 27 September 2007. On 4 and 12 September 2007 Mr Macdonald had lunch with Mr Obeid Snr in Sydney. [337] On 15 September, Mr Obeid's diary recorded him attending Mr Macdonald's wedding in Orange. On 16 September Mr Cherry's solicitor sent a "list of all the inclusions" that would go with Cherrydale Park on a walk-in-walk-out basis. [338] The sale price was $3.65 million, of which $3.15 million was provided by way of vendor finance. A condition of the mortgage was that the water licences for the property would not be transferred until the mortgage was discharged. 9. Mr Obeid Snr and Mr Macdonald spoke by telephone on six days between Tuesday, 18 September and the exchange of contracts on Thursday, 27 September. On 26 September, the Obeids' solicitor, Mr Cordato, sent at 5.30pm an email containing a letter summarising the terms of the contract. The letter noted that there were "a number of water licences for domestic irrigation and stock" which were to remain in the name of the vendor until the loan advance was repaid. [339] At 5.36pm, Mr Obeid Snr called Mr Moses Obeid, who returned his call at 5.49pm. At 6.32pm Mr Macdonald's Chief of Staff, Adam Badenoch, sent an email to an officer in the Department of Natural Resources seeking information in relation to eight water licences, being the licences identified in special condition 53 in the sale contract. Mr Badenoch gave evidence that he himself had no interest in any rural land or water licences. [340] 10. There were powerful inferences available from this evidence that (i) Mr Macdonald knew of the purchase of Cherrydale at around the time the contract was signed and (ii) he had requested his Chief of Staff to make enquiries in relation to the water licences. 11. In an interview with journalists on 18 December 2012, Mr Moses Obeid said that they (the Obeids) had learnt of the mining authority held by Anglo-American in March or April 2008. Mr Obeid Snr corrected that to February-March. [341] Mr Obeid Snr also told the journalists that having spent the summer of 2008 at Cherrydale, he "went back to Parliament and it's on record that I asked Ian [Macdonald] if the Department has any knowledge of a mine being planned for Bylong by Anglo. Within six or seven days one of his staff has called on my office and said to me that there was [sic] no plans known". [342] 12. The first act of misconduct particularised in the indictment, which occurred on or about 9 May 2008, was the request by Mr Macdonald for information from his Department as to the volume of coal reserves in the Mount Penny area in the Bylong Valley. That step itself was supportive of the finding that Mr Macdonald, on or about that date, knew that the Obeids owned a property at Mount Penny. The timing of the various communications and activities referred to above provides ample support for that conclusion and no basis for a reasonable doubt as to Mr Macdonald's knowledge of that fact as at 9 May 2008. It also supports the inference that Mr Moses Obeid was involved in plans to exploit a coal reserve at Mount Penny as at 9 May 2008. 13. There were two further "reasonable hypotheses" raised by Mr Macdonald which have not been addressed. Two (particulars (e) and (f)) concerned the possibility that Mr Macdonald would have engaged in the conduct alleged absent the improper purpose and that the Obeids did not appreciate that he would have done so. The underlying premise was that the prosecution needed to establish beyond reasonable doubt that Mr Macdonald would not have done what he did in order to benefit the Obeids "but for" the improper purpose. 14. In ground 1(3) a challenge was brought to the failure of the trial judge to find that there was no conspiracy because the prosecutor failed to allege that Mr Macdonald would not have done the acts the subject of the agreement "but for" the improper purpose. That ground was rejected on the basis that the trial judge in fact approached the matter on the basis that she did have to be so satisfied, and was. However, for the reasons given in considering the legal basis of the appellants' submissions on that ground, the charge of conspiracy did not engage such an element. 15. Furthermore, the contention was factually incoherent. The improper purpose was to benefit the Obeid family by releasing confidential information and acting partially towards them. It would have made no sense for Mr Macdonald to take such steps in the absence of an agreement. The element of "wilful misconduct" required that the steps be taken pursuant to the agreement and in breach of Mr Macdonald's public duties. By way of analogy, in Jackson and Hakim, [343] it would have been no answer to the charge against Mr Jackson of taking a bribe to release a prisoner that he had intended to direct the release of the prisoner in any event. On a proper understanding of the charge, the legal premise underlying these particulars fell away. 16. Finally, particular (g) alleged that the conduct agreed upon was "not serious and meriting criminal punishment". This was a restatement of ground 1(5) which alleged an error in the indictment in failing to include as an element the agreement that the conduct was serious and meriting criminal punishment. [344] As explained in relation to that ground, the parties to the conspiracy did not have to agree on the legal characterisation of their conduct. This particular had no relevance under ground 2. 17. Otherwise, the various particulars of the unreasonable verdict ground have been addressed. Distancing Obeid name from coal activities 1. In a section of the judgment not the subject of challenge, findings were made with respect to the attempted change to the legal ownership of Cherrydale Park. The purchase had been undertaken by Locaway Pty Ltd as trustee for the Moona Plains Family Trust, the primary beneficiaries of which were the four children of Mr Obeid Snr, who was the appointor. An attempt was made, commencing in February 2008, to alter the ownership. By a letter dated 14 February 2008, addressed to Mr Obeid Snr, at Coalpac Group Pty Ltd at Birkenhead, Mr Anthony J Cordato, solicitor, stated: "We refer to our telephone discussion and confirm that you desire to appoint United Pastoral Group Pty Ltd as the new trustee of the trust to replace Locaway Pty Ltd." 1. Mr Cordato advised that he had already written to the solicitor for the Cherrys, seeking their client's consent to the substitution of United Pastoral Group Pty Ltd for Locaway Pty Ltd as mortgagor. 2. United Pastoral Group Pty Ltd was originally incorporated under a different name with the registered office of SJ Sassine & Co, an accountant who worked for the Obeids. On 15 February 2008, Mr Andrew Kaidbay was appointed as director and secretary and became the holder of what appear to be the issued capital of the company. In fact, the name of the company was not changed to United Pastoral Group Pty Ltd until 30 September 2008. 3. In October 2008, Mr Sassine sent Mr Cordato a trust deed. The deed was apparently dated 25 October 1994, but Mr Sassine stated that "[t]he new trustee as from Feb 2008 should be United Pastoral Group Pty Ltd". The delay between mid-February and early-October 2008 is not explained, but it is apparent that Mr Obeid Snr considered it necessary to remove any association of the Obeid family from the ownership of Cherrydale Park. 4. As Mr Cordato was aware, the change in the trustee required the consent of the mortgagee. Accordingly, he wrote to the solicitors for Mr Cherry on 15 October 2008. Nothing appears to have occurred at that stage, and Mr Cordato followed up with a telephone discussion and a letter dated 9 February 2009. The solicitors replied on 12 February 2009 stating that Mr Cherry had already indicated to Mr Obeid Snr that "the reasons for the change would need to be provided before the request would be considered". 5. On 16 February 2009, Mr Cordato responded: [345] "The reason for the change in trustee is to protect the privacy of our clients …. The new trustee is a nominee company which has been incorporated for this purpose." Consent was refused. [346] 1. Mr Cherry was called as a witness and gave evidence of having spoken to Mr Obeid Snr in February 2009. The following exchange took place: [347] "Q. And what was your conversation with Eddie Obeid? A. Eddie Obeid said that what he really wanted to do was to remove him and the family name from coal; there was a lot of fuss going on in the valley at that particular point in time, so wanted to hide that factor, because he was interested in coal." 1. In relation to the solicitor's statement that the reason for the change in trustee was "to protect the privacy of our clients", Mr Cherry stated: [348] "They didn't want to tell me officially that they wanted to hide the fact that they were involved in coal, which is what Eddie told me personally on the phone." 1. As the prosecutor submitted at the trial, the various attempts, commencing in February 2008 and continuing for over a year, by the Obeids to change the legal ownership of Cherrydale Park were undertaken with the objective of distancing the Obeid family from ownership of the property. The step first taken by Mr Obeid Snr in February 2008 was not pursued for a few months, but was renewed within a month of the EOI package, which included a diagrammatic representation of the Mount Penny area which overlaid Cherrydale Park, being released on 9 September 2008. [349] As submitted at trial and on the appeal, the later steps by Mr Obeid Snr did not fall within the period of the conspiracy; nevertheless, taken as a whole, the conduct provided unequivocal evidence of an attempt to distance the Obeid interests from ownership of the land and thus support for the case that Mr Obeid Snr was implicated in the improper purpose of the conspiracy. Statements to journalists 1. In 2010, Ms Anne Davies wrote an article in the Sydney Morning Herald as a result of research she had undertaken in relation to coal in the Bylong Valley. Relevantly, she had spoken to Mr Moses Obeid. She gave evidence based on her notes on a voir dire (which was subsequently admitted in the trial) in the following terms: [350] "Q. Returning then to your note of question in relation to Justin Kennedy Lewis, do you recall what your question was? A. I think I asked whether he knew Justin Kennedy Lewis and whether he knew Justin Kennedy Lewis had bought a property up there. Q. At line 6, after your question, it says in the green notes, 'no, I didn't until January'. What does that relate to? … A. That was the answer that Moses Obeid gave me, that he didn't know until January that Mr Kennedy Lewis had bought a farm in the valley. … A. Because that was what he told me that Justin Kennedy Lewis had said to him. So he was recounting the whole conversation. He said that he had bumped into Justin and that Justin had said, 'Oh, I've bought a farm in the Bylong Valley' and that he didn't know until January and then he said that Justin Kennedy Lewis had said, 'you guys have got a farm up the road'. Q. … The reference to 'Justin K Lewis', … there is ['Q. did you get him to buy it?'] … Q. And the response in quotation marks 'not at all', who said that? A. That was what Moses Obeid said to me. Q. And was that in response to a question about whether he got Justin Kennedy Lewis to buy the property? A. Yes. Q. Lines 23 and 24, on the green notes, 'we don't go around buying farms for the sake of it', do you recall who said that? A. Yes, that was Moses Obeid and he said to me, 'look why would we' – … A. So he said to me, 'we don't go around buying farms for the sake of it'. It was him – he was sort of outraged at the suggestion I had made that they were buying farms under the cover of somebody else's name." 1. There was ample documentary evidence that Mr Moses Obeid, a friend of Mr Lewis, had taken steps to arrange for him to purchase Coggan Creek. Accordingly, the statement made to the journalist, Ms Davies, was a fabrication. The judge's acceptance of the submission that this was a deliberate lie was not challenged on the appeal. [351] 2. In December 2012, both Mr Obeid Snr and Mr Moses Obeid were interviewed by two journalists, Mr Shanahan and Ms Jiminez over three days, being 18, 20 and 21 December 2012. Mr Obeid Snr participated in the interview on 18 December 2012 only. [352] 3. The prosecution identified 36 lies which were said to have been made attributable to Mr Moses Obeid in the course of the interview. Consideration of that case led to an interlocutory judgment (R v Macdonald (No 15)) to which is annexed a schedule of lies and admissions. [353] The judge then returned to that document and made the following finding: "1968 Having regard to all the evidence in the trial and in light of the various factual findings I have made in the course of my deliberations to date, I am satisfied that each of the ten lies attributed to Moses Obeid was a deliberate misstatement of the truth. I am also satisfied that each lie was material to the issues in dispute in the trial and each was told by Moses Obeid in an attempt by him to conceal both the existence of a conspiracy in which Mr Macdonald as the Minister for Mineral Resources agreed to breach his Ministerial duties and obligations in connection with the granting of an EL at Mount Penny for the improper purpose alleged, being an agreement into which Moses Obeid had intentionally entered and in which he actively participated throughout its currency. 1969 I am further satisfied, and direct myself accordingly, that it is safe to draw an inference of guilt adverse to Moses Obeid from having told each of those ten deliberate lies, in circumstances where I am satisfied that had he truthfully answered the questions put to him and/or volunteered information to the journalists about the acquisition of the properties adjoining Cherrydale Park and the circumstances in which he and members of his family became involved with mining companies who had applied for an EL at Mount Penny including Cascade Coal P/L, the mining company ultimately granted that EL, he would, unquestionably, have been at risk of implicating himself as a co-conspirator in the conspiracy charged." 1. After then identifying the circumstances in which the interviews were conducted, namely the commencement of a public inquiry by the ICAC on 12 November 2012, the terms of which were set out at [1972], the judge continued: "1975 Having reasoned to the conclusion that Moses Obeid was a participant in the conspiracy charged, including, but not limited to, what he has been shown to have said and done as overt acts in furtherance of the conspiracy, it is sufficient to emphasise what I consider to be the most egregious lies told by him, lies which I am satisfied were told with a 'consciousness of guilt' and a fear of the truth being revealed. Those lies principally concern his dealings with Monaro Mining NL and the involvement of Mr Brook and include the following: (1) Monaro Mining NL, via Mr Brook, was the source of the information about the EOI process commencing in late July or early August 2008. (2) He met Mr Brook because he wanted someone to assist with the negotiations with Anglo American P/L as to the 'exit strategy'. Meanwhile, separately, Mr Brook was speaking to Monaro Mining NL. (3) The Obeids had nothing to do with Monaro Mining NL or their EOI application or with the tender process as they wanted to 'remain out of it'. (4) The Obeids told Mr Brook that they were happy to remain as landowners and wait for him to return with a deal and if Mr Brook could not pay for the land then the Obeids would do a deal in relation to the land in order to get equity in the deal. 1976 It is clear beyond question that Moses Obeid was aware of an imminent EOI process which would include Mount Penny before his first meeting with Mr Brook on 3 July 2008. It is equally clear that Moses Obeid's dealings with Mr Brook were in relation to a joint venture, first with Monaro Mining NL and then Cascade Coal P/L, and that Moses Obeid provided the list of companies to Mr Brook which facilitated his approach to Monaro Mining NL. 1977 I am also satisfied that until the first Wentworth Hotel meeting Mr Brook was ignorant of the forthcoming EOI process. I am also satisfied that he had no relevant experience in the mining sector in New South Wales, and no knowledge of coal companies in New South Wales who might apply for the grant of an EL until Moses Obeid provided him with the list of companies the DPI proposed as invitees to that process. Furthermore, the evidence that Mr Brook kept Moses Obeid apprised of all his dealings with Monaro Mining NL, and that Moses Obeid instructed Mr Rumore in relation to the Share Option Deed between Voope P/L and Monaro Mining NL (pursuant to which the Obeid family via the interposition of Voope P/L, a company the Obeid family controlled, sought a share in the mining venture) clearly establishes Moses Obeid was concerned to ensure that control over Monaro Mining NL's successful tender for the Mount Penny Coal Release Area would vest in his family. 1978 I am satisfied that the lies listed above were deliberately told by Moses Obeid to conceal his family's interests in the Mount Penny EL; their dealings with Monaro Mining NL in that connection; the role Mr Brook played in those dealings; his knowledge of Monaro Mining NL's application for the grant of an EL over the Mount Penny Coal Release Area; and the source of that knowledge." 1. Although the trial judge based her findings in respect of this evidence in part on earlier findings adverse to Mr Moses Obeid, taking the evidence as a whole, the statements to the journalists relied on as lies by the prosecutor should be accepted as such and provide significant support for the prosecution case. Ground 2 – Conclusions 1. As has been noted, in dealing with a circumstantial case, and particularly one involving a conspiracy, the manner in which the unreasonableness submissions were formulated under common ground 2 was problematic. [354] Rather than consider whether there was a reasonable hypothesis consistent with an innocent explanation in respect of each particular matter relied upon by the trial judge, it was necessary to engage in an assessment of the whole of the evidence in order to articulate a reasonable doubt as to the correctness of the verdict. 2. It may readily be accepted that some of the material relied upon was more powerful than other elements. However, each of the verdicts was capable of support in circumstances where the indispensable elements were established beyond reasonable doubt, but only on the evidence and the inferences drawn from the evidence. The Court is of the view that the prosecution proved beyond reasonable doubt the existence of a conspiracy as alleged in the indictment, and that each of the co-accused were participants in it at the time at which it was formulated, namely prior to 9 May 2008. We do not entertain a reasonable doubt in that respect. There is therefore no need to consider whether the trial judge had a particular advantage which might have explained all or some aspects of a doubt which we entertained. PART D ORDERS 1. The nature of the charge and the complexity of the evidence justify a grant of leave to appeal, to the extent that that is necessary, pursuant to s 5(1)(a) of the Criminal Appeal Act. Such leave should be granted with respect to each appellant. 2. However, in each case the appeal must be dismissed. Annexure A and B (1462036, pdf) ********** Endnotes 1. R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858. 2. Footnotes have been routinely omitted from the extracts from the judgment set out below. 3. Ground 1 in Edward Obeid's appeal omitted the word "or", thus suggesting that the second limb was a particular formulation of the first limb. Nothing turned on that variation. 4. Trudgeon v R (1988) 39 A Crim R 252, 256 (Gleeson CJ); R v O'Brien (1974) 59 Cr App R 222, 226. 5. (1998) 192 CLR 493; [1998] HCA 7 at [55]. 6. The Queen v Rogerson (1992) 174 CLR 268 at 280-281 (Brennan and Toohey JJ); [1992] HCA 25. 7. Peters at [54]. 8. Gerakiteys v The Queen (1984) 153 CLR 317 at 327 (Brennan J); [1984] HCA 8; R v Gill and Henry (1818) 2 B & Ad 204, 205; 106 ER 341, 342 (Abbott CJ) applied in Peters at [70]. 9. Primary judgment at [650]-[740]. 10. Coal was a group 9 mineral for the purposes of the Mining Regulation: Sch 3. 11. These provisions have been considerably expanded in recent years, but were in this form in May 2008. 12. Mining Act, s 368. 13. Tcpt, 27/02/20, p 603(30)-(50). 14. References to the evidence are omitted. 15. Judgment at [751]. 16. Judgment at [752]. 17. Judgment at [691]. 18. Written submissions, par 153. 19. (2010) 241 CLR 177; [2010] HCA 17. (References omitted.) 20. (1868) LR 3 HL 306. 21. LK at [63]. 22. (1915) 20 CLR 425 at 446-447 (Isaacs J); [1915] HCA 58. 23. (1923) 33 CLR 386 at 396 (Isaacs and Rich JJ); [1923] HCA 59. 24. (1992) 174 CLR 268; [1992] HCA 25. 25. Rogerson at p 281. 26. Rogerson at p 287. 27. Although it is of no moment, the written submissions for Mr Moses Obeid stated that Mason CJ agreed with the analysis of Brennan and Toohey JJ in relation to this point: that is not apparent from the Chief Justice's statement at p 279. 28. Obeid written submissions, par 161. 29. M Obeid written submissions, par 72. 30. (2019) 99 NSWLR 376; [2019] NSWCCA 32 at [84] (Bathurst CJ, Beazley P, Ward CJ in Eq, Hamill and N Adams JJ). 31. Maitland at [68]. 32. (2017) 20 HKCFAR 264 (Ma CJ, Fok PJ, Chan, Stock and Gleeson NPJJ). 33. (2005) 8 HKCFAR 192 at [45]. 34. Hui at [46], quoting R v Boulanger [2006] 2 SCR 49 at 69 (Supreme Court of Canada). 35. (2010) 27 VR 310; [2010] VCA 106 at [37]. 36. Quach at [40]. 37. Boston at 392. 38. Boston at 393. 39. Boston at 404. 40. Hui at [1]. 41. [2015] NSWCCA 309 (Obeid v R (2015)). 42. Boston at [397]. 43. (1966) 51 Cr App R 4 (Widgery J); Maitland at [34]. 44. [2005] 2 Cr App R (S) 75; [2004] EWCA Crim 3067 at [40]; Maitland at [33]. 45. See Obeid v R [2015] NSWCCA 309 at [139]. 46. (1997) 191 CLR 1 at 51, quoting de Smith Woolf & Jowell, Judicial Review of Administrative Action, 5th ed (1995), par 12-002. 47. Macdonald, written submissions, pars 11-12. 48. Maitland v R at [67]-[70]; Obeid v R [2015] at [56]-[115]. 49. Judgment at [85]. 50. Written submissions, par 77. 51. Obeid [2015] at [134]. 52. Respondent's written submissions, par 93. 53. (2002) 5 HKCFAR 381 at [76]-[77], [84]-[86]. 54. Boston at p 392. 55. Rogerson at 282 (after quoting the passage set out above from Boston). 56. Review of Commonwealth Criminal Law, Interim Report: Principles of Criminal Responsibility and Other Matters, (July 1990) at [40.1]. 57. (1972) 2 SASR 529 at 552. 58. See also R v Agius [2011] NSWSC 367 at [53]ff (Simpson J). 59. Judgment at [112]. 60. Third appellant's written submissions, par 212. 61. Third appellant's written submissions, par 215. 62. CCA tcpt, p 44(45). 63. CCA tcpt, p 11(25). 64. Judgment at 188]-[291]. 65. Third appellant's written submissions, par 292. 66. Judgment at [214] (emphasis supplied by trial judge). 67. Written submissions, par 417. 68. (1990) 170 CLR 573; [1998] HCA 56. 69. (1984) 153 CLR 521; [1984] HCA 7. 70. Shepherd at 579. 71. Written submissions, par 440. 72. Written submissions, par 441. 73. (2000) 199 CLR 620; [2000] HCA 3 at [29]. 74. (2008) 232 CLR 397; [2008] HCA 1 at [27]. 75. Written submissions, par 460. 76. (1959) 101 CLR 298 at 308 (Kitto J); [1959] HCA 8. 77. Judgment at [2021]. 78. Judgment at [2022]. 79. Judgment at [2028]. 80. 101 CLR 298 at 308. 81. RPS at pars [28]-[29] (Gaudron ACJ, Gummow, Kirby and Hayne JJ); (footnote omitted). 82. Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19; Whitehorn v The Queen (1983) 152 CLR 657, 674; [1983] HCA 42. 83. See generally Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 at [19], [29] (Gleeson CJ, McHugh, Kirby and Hayne JJ); Kanaan v R [2006] NSWCCA 109 at [84]-[85]. 84. Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [4]; Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [41], [47]. 85. Written submissions, Edward Obeid, par 74, footnotes omitted. 86. Judgment at [2016] and [2017]. 87. (1988) 165 CLR 87 at 94-95 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ); [1988] HCA 39. 88. The King and the Attorney-General (Cth) v The Associated Northern Collieries (1912) 14 CLR 387 ("Coal-Vend Case") at 400. 89. Tripodi v The Queen (1961) 104 CLR 1 at 7; [1961] HCA 22. 90. Glasser v United States (1942) 315 US 60 at 75. 91. Glasser at 74. 92. (2018) 100 NSWLR 314; [2018] NSWCCA 127 (Johnson and Harrison JJ agreeing). 93. Dolding at [22]. 94. NSWCCA (Sully, Dunford and Simpson JJ, 18 December 1997, unrep) at p 9. 95. (2014) 300 FLR 323; [2014] NSWCCA 303 at [289]. 96. Cf Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321; [2007] FCA 794 at [54] (Gray J). 97. Australian Law Reform Commission, Interim Report on Evidence No 26 (AGPS, 1985) Vol 1, pars 646 and 755; Vol 2, Draft Bill, cll 45 and 74. 98. 7th ed, Vol 1, p 191. 99. [2020] NSWCCA 149 at [33] (Payne JA). 100. R v Macdonald, Edward Obeid, Moses Obeid (No 15) [2020] NSWSC 1949 ("Macdonald (No 15)"). 101. Macdonald (No 15) at [95]. 102. Judgment at [1967]. 103. Written submissions, par 114. 104. Written submissions, par 116. 105. Written submissions, par 122. 106. (1993) 178 CLR 193; [1993] HCA 63. 107. [2020] NSWSC 1949. 108. Written submissions, par 124. 109. Ground 8 in this form appears to have appeared first in the written submissions prepared in September 2022, although the grounds of appeal filed on 1 September 2022 did not contain an equivalent paragraph to 8(b). The argument proceeded on the basis of the two-part formulation. 110. See fn 106 above. 111. R v Macdonald (No 15) at [48]. 112. Judgment at [591], fn 535. 113. Tcpt, day 74, pp 3811-3821. 114. (2022) 96 ALJR 728; [2022] HCA 25, esp at [15]-[17]. 115. (2000) 200 CLR 234; [2000] HCA 28 at [15] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). 116. R v Morgan (unrep, Court of Appeal (Vic), 13 August 1996) at 4. 117. Judgment at [819]. 118. Tcpt, 010920, p 1286(25). 119. Tcpt, p 1288(5). 120. Tcpt, p 1288(9). 121. Written submissions, par 467. 122. Judgment at [851]. 123. Tcpt, p 1297(5)-(27). 124. Written submissions, par 467(c). 125. Tcpt, p 899(45). 126. Tcpt, p 900(15). 127. Tcpt, p 900(45). 128. Tcpt, p 901(3)-(25). 129. Tcpt, p 901(33). 130. Written submissions, par 491. 131. Appellant's written submissions, par 498. 132. Tcpt, p 1425(22). 133. Tcpt, p 2287(39). 134. Judgment at [1258]. 135. Judgment at [1259]. 136. Tcpt, p 3043(10)-(14). 137. Tcpt, p 3042(33). 138. Tcpt, p 3043(3). 139. Tcpt, p 3044(15). 140. Tcpt, p 3043(36)-(42). 141. Appellant's written submissions, par 519. 142. Appellant's written submissions, par 521. 143. Judgment at [1738]. 144. (2019) 93 ALJR 1219; [2019] HCA 37 at [81]. 145. (1995) 41 NSWLR 312. 146. (1992) 173 CLR 555 at 561-562; [1992] HCA 13. 147. Written submissions, par 524. 148. Written submissions, 12 February 2021, Schedule A. 149. Judgment at [1493]. 150. Judgment at [1768], [1769] set out at [276] above. 151. Judgment at [1770]. 152. Judgment at [1775], [1776]. 153. Tcpt, 18/04/23, p 74(20). 154. Written submissions, par 528(b). 155. Tcpt, 03/09/20, p 1456(13). 156. Tcpt, 20/10/20, p 2809(40). 157. Tcpt, p 2810(20). 158. Tendered by the appellants as Ex 40, at p 1692T. 159. The same question before an objection asked for his "understanding as to a contiguous area in relation to Mount Penny": Tcpt, p 1836(50). 160. Tcpt, 15/09/20, p 1837(10). 161. Written submissions at par 534. 162. Closing submissions for Moses Obeid (at trial), 12 February 2021, Schedule B, par 160. 163. Tcpt, 27/10/20, p 3093(40). 164. Judgment at [1313]. 165. Judgment at [1331] 166. It was also referred to as "Schiavo Map 3". 167. Judgment at [1149]. 168. Judgment at [1069]. 169. Judgment at [1065]. 170. Judgment at [1154]. 171. Judgment at [1164], [1165], [1170]. 172. Judgment at [1171]. 173. Judgment at [1191]. 174. Ex A, p 1239. 175. Ex A, p 1249. 176. Judgment at [1571]. 177. Judgment at [1572]. 178. Judgment at [1573]. 179. Judgment at [1585]. 180. Judgment at [1582]. 181. Judgment at [1584]. 182. Tcpt, 28/10/20, p 3192(15). 183. Tcpt, p 3192(22). 184. Tcpt, p 3192(33). 185. Tcpt, p 3192(46)-(49). 186. Tcpt, p 3193(3). 187. Written submissions, par 547. 188. Macdonald written submissions, par 31. 189. Edward Obeid's written submissions, par 74. 190. (1994) 181 CLR 487; [1994] HCA 63. 191. See also SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14]. 192. (1998) 197 CLR 250; [1998] HCA 68. 193. (2015) 256 CLR 47; [2015] HCA 29 at [6] (French CJ, Bell, Keane and Nettle JJ). 194. Fleming at [28]. 195. (1996) 85 A Crim R 57 at 60. 196. (1988) 34 A Crim R 397 at 401. 197. Fleming at [18]; see also at [14] in relation to Kurtic. 198. Fleming at [38]. 199. Fleming at [19]-[21]. 200. Fleming at [22], [37]. 201. Filippou at [10]. 202. As the judgment recognised at [13]. 203. The consequences being identified at [15]. 204. Filippou at [99]. 205. Filippou at [56]. 206. Filippou at [55], [60]. 207. Filippou at [14]. 208. (1980) 144 CLR 319; [1980] HCA 25. 209. Simic at 326. 210. Simic at 332. 211. M v The Queen at 492. 212. Dansie at [36]. 213. Dansie at [35]. 214. Dansie at [37] 215. Moses Obeid ground 2(a), written submissions, pars 305-311; 349-370; Edward Obeid, ground 2(a), written submissions, par 76. 216. Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). 217. [2023] NSWCCA 61 at [14]; see also EE v R [2023] NSWCCA 188 at [39] (Beech-Jones CJ at CL, Adamson JA and Ierace J agreeing). 218. (2003) 214 CLR 118; [2003] HCA 22 at [23] (Gleeson CJ, Gummow and Kirby JJ), [78] (McHugh J). 219. Written submissions, par 308. 220. Western Australia v Marchesi (2005) 30 WAR 359; [2005] WASCA 133 at [14] (Steytler P, McLure JA agreeing). 221. Respondent's written submissions, par 160. 222. (2007) 228 CLR 618; [2007] HCA 13 (footnotes omitted). 223. (2016) 258 CLR 308; [2016] HCA 35 (French CJ, Kiefel, Bell, Keane and Gordon JJ) (footnotes omitted). 224. Peacock v The King (1911) 13 CLR 619 at 661. 225. Hillier at [46]. 226. Moses Obeid, ground 2(b); Mr Obeid, Snr, ground 2(a) 227. Ex AV, Court Book, p 6112. 228. Ex AV, CB, p 6095. 229. Mr Macdonald, ground 2(c). 230. Tcpt, 06/10/20, p 2463(17). 231. Tcpt, p 2463(22). 232. Tcpt, p 2464(20). 233. Tcpt, p 2465(12). 234. Tcpt, p 2465(16). 235. Tcpt, p 2466(4). 236. Tcpt, p 2252(45). 237. Tcpt, 280220, p 681(13). 238. Ex A, p 874 (AB 572). 239. Tcpt, p 2476(30)-(48); 2477(10), (46), (49). 240. Tcpt, p 2483(5)-(17). 241. Ex A, p 946; Tcpt pp 2485(40)-2486(15). 242. Ex A, p 946. 243. Tcpt, p 2485(38). 244. Tcpt, p 701(27). 245. Tcpt, p 702(42)-(49). 246. Tcpt, 05/03/20, p 900(45). 247. Tcpt, p 901(40)-(49). 248. Tcpt, 903(30). 249. Ex A, p 881. 250. Ex A, p 885. 251. Ex A, p 893. 252. Tcpt, p 2558(35). 253. Tcpt, p 2559(21). 254. Tcpt, p 908(46). 255. Tcpt, p 2267(25). 256. Tcpt, p 2268(44)-(50). 257. Ex Q. 258. Tcpt, p 835(25). 259. Tcpt, p 835(33)-(49). 260. Tcpt, p 2468(42). 261. Ex A, p 1059. 262. Ex A, p 1066. 263. Ex U, p 38. 264. Ex A, p 1049. 265. Tcpt, p 2807(30)-2808(7). 266. Tcpt, p 2809(17)-(36). 267. Tcpt, p 3030(26)-3031(39); see also p 3095-3096. 268. Tcpt, p 2809(40)-(45). 269. Tcpt, p 3032(5). 270. Tcpt, p 3032(22). 271. Tcpt, p 3032(32)-(38). 272. Tcpt, p 2814(48)-2815(15). 273. Tcpt, p 2815(26). 274. Tcpt, p 3068(16). 275. Tcpt, p 3069(4). 276. Tcpt, p 3088(20)-(50). 277. Tcpt, p 2815(33). 278. Tcpt, p 3052(41). 279. Tcpt, p 3053(23). 280. Tcpt, p 3054(6). 281. Tcpt, p 3056(25). 282. Tcpt, p 3060(23)-(29). 283. Tcpt, p 3062(7). 284. Tcpt, p 3063(13)-(19). 285. Tcpt, p 3063(23). 286. Tcpt, p 3065(15). 287. Tcpt, p 3066(12). 288. Statement, 20 August 2013, p 8 of 42. 289. Tcpt, p 3009-3016. 290. ICAC Tcpt, 12/03/2012, p 262(36)-263(8). 291. ICAC Tcpt, 12/03/2012, p 13 of 21 (line 27). 292. ICAC Tcpt, 12/03/2012, p 14 of 21 (line 15). 293. Macdonald written submissions, par 174. 294. Tcpt, p 661(18). 295. Tcpt, p 2474(45). 296. Tcpt, p 2245(44)-2246(8). 297. Tcpt, p 712(30). 298. Tcpt, p 835(15)-(25). 299. Tcpt, p 835(33)-(45). 300. See [321] above. 301. Tcpt, p 2490(5). 302. Tcpt, p 2490(29)-(40). 303. Tcpt, 717(13), (35). 304. Tcpt, 837(30)-838(1). 305. Ex A, p 1109. 306. Tcpt, p 2851(44)-2852(12). 307. Ex A, p 1111, 1113. 308. Judgment at [1404]. 309. Ex G, par 22(c). 310. Tcpt, p 1360(50). 311. Tcpt, p 2853(10). 312. Tcpt, p 2854(15). 313. Tcpt, p 2854(25). 314. Tcpt, p 1548(38). 315. Note at Ex A, p 1119. 316. Ex A, p 1121. 317. Tcpt, p 2858(45)-2859(30). 318. Ex Q, p 1143-4. 319. Ex A, p 1249. 320. Ex A, pp 1431-1432. 321. Ex A, pp 1553 at 1560. 322. Ex A, p 1885. 323. Tcpt, p 363(23)-(37). 324. Tcpt, p 2378(30). 325. Ex A, p 1887. 326. Ex A, p 1919. 327. Tcpt, p 2907(20)-(28). 328. Tcpt, pp 2909(35)-2910(10). 329. Tcpt, p 2912(35)-(45). 330. See [332]-[334] above. 331. Tcpt, p 3192(35)-(45); cf p 3193(3). 332. Judgment at [1955]ff. 333. See [232] above. 334. Tcpt, p 1291(25). 335. Tcpt, p 1291(27)-(45). 336. Moses Obeid, written submissions, par 340ff. 337. Ex A, pp 143, 145. 338. Ex A, p 149. 339. Ex A, p 167, par 13. 340. Tcpt, p 2313(43). 341. Ex AV, p 6095. 342. Ex AV, p 6112. 343. Jackson v R; Hakim v R (1988) 33 A Crim R 413 (NSWCCA). 344. See [77]-[81] above. 345. Ex A, p 3409. 346. Ex A, p 3557. 347. Tcpt, p 483(10). 348. Tcpt, p 483(40). 349. Crown written submissions, 18 December 2020, par 521. 350. Tcpt, pp 3565(30)-3566(41). 351. Judgment at [1971]. 352. Judgment at [1960]. 353. See fn 111 above. 354. See [346]-[347] above. Amendments 09 October 2023 - Changes to quote in [553]. 16 April 2024 - [20] 1st line - changed "were" to "was" [21(6)] and index - changed "partiality" to "impartiality" [45] 1st line - "third" inserted before "appellant's" [47] 2nd sentence - changed "appellant" to "appellants" [50] after "French CJ" changed "Mulcahy" to "LK" [52] - deleted "of" before "a false story" Heading above [82] - changed "partiality" to "impartiality" [92] 1st line - replaced "is" with "are" before "obscure". [96] - changed "appellant" to "appellants" fn 34 - changed "55" to "at 69" fn 60, 61 and 65 - insert "third" before "appellant's" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2024