News: Obeid’s suppressed High Court application

Two judgments published yesterday by Gageler J reveal that previously suppressed High Court events in mid-January involved an application by former NSW Legislative Councillor Eddie Obeid to delay and perhaps ultimately prevent his trial on a charge of misconduct in public office. In  the first of yesterday’s judgments, Obeid v The Queen [2016] HCA 9, Gageler J explained his reasons for refusing Obeid’s request to stay his trial until the High Court had considered his application for special leave to appeal the NSW Court of Criminal Appeal’s rejection of his pre-trial arguments (that his parliamentary position at the time of the alleged public misconduct either fell outside of the scope of the offence charged or meant that only the Legislative Council could try it.) In the second, Obeid v The Queen [No 2] [2016] HCA 10, Gageler J explained why both the fact of Obeid’s application for special leave and a stay and Gageler J’s ruling rejecting the stay were not published by the High Court until now: it was because Gageler J himself suppressed that information (at the ex-politician’s request.)That explains why the relevant court list only revealed that an application for an application for a non-publication order was to be heard, but not who made the application or what it was about.

The two sets of reasons for judgment from Gageler J explain the events and his reasoning in considerable and very useful detail. Obeid’s application for a stay was refused because, while Obeid would presumably prefer not to be incorrectly tried, preventing his trial wasn’t necessary for the High Court to eventually resolve his complaints about the Supreme Court’s jurisdiction and the scope of the offence of misconduct in public office. However, Obeid’s application for the suppression of his identity in connection with his High Court applications was upheld because Gageler J didn’t want to undermine similar orders made by the NSW courts about his applications in those courts (which those courts had apparently made to try to keep the topic of Obeid’s charges out of the news in the immediate lead up to – and, it seems, during – his trial.) Justice Gageler’s own order was scheduled to expire on 11 March, a month or so after Obeid’s trial was due to commence, although the parties had ‘liberty to apply’ for an extension. As it happens, Obeid’s trial was abandoned mid-way due to new evidence emerging and no retrial has been scheduled to date. Given the publication of yesterday’s judgments, it is clear that Gageler J’s order is no more, although today’s reasons do not reveal whether this is because no-one applied for an extension, or because the extension was refused, or some other reason, or why it took a further three weeks for the High Court to publish Gageler J’s reasons.

Yesterday’s transparency means that the public can, if it wishes, now debate the significance and merits of Obeid’s legal arguments that he should not face a court trial for misconduct in public office and, more broadly, the question whether parliamentarians should or shouldn’t be exempt from corruption prosecutions, matters that are clearly of no small public interest. And the public can also debate whether the NSW courts’ aim of keeping Obeid out of the news in the lead-up to his trial was either appropriate or justified keeping his pre-trial applications out of the news too. And High Court followers can debate whether arguments like Obeid’s should be considered by the apex court before or after a trial (and possible conviction and punishment) and whether these Court events should have been suppressed until now. Unfortunately, the NSW courts’ reasons for rejecting Obeid’s pre-trial arguments remain unpublished for now (EDIT: see comment below) as do their reasons for suppressing them and Gageler J’s own reasons are narrow, for reasons he carefully explains. In rejecting Obeid’s High Court application for a stay, Gageler J did not assess the merits of the ex-politician’s pre-trial arguments, beyond holding that they are not ‘so obviously compelling as to make interference with the trial process absolutely plain or manifestly required’. And Gageler J’s own suppression order was justified almost entirely by the need to avoid undermining the NSW courts’ own orders in proceedings that remained before them (despite Obeid’s decision to shift his efforts to a different court.) In passing, Gageler J did question whether the NSW courts were correct to seek to suppress Obeid’s arguments even after his jury was sworn in. And he also pointedly spelt out how suppression applications in advance of a special leave application to the High Court ‘[o]rdinarily… should be made’ to ensure that they are dealt with by the most appropriate court and that all interested parties can make submissions.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

One thought on “News: Obeid’s suppressed High Court application

  1. The suppression order in the NSW courts has now been lifted. In an ex tempore decision yesterday, Beech-Jones J noted that no application was made to vary Gageler J’s January order that expired on March 12, but that the NSW orders remained in place. However, the publication of Gageler J’s judgments ‘on the High Court’s website’, which ‘have been the subject of some news publications and academic commentary’, and the reporting of the aborted trial means that ‘sufficient details of Obeid No 2, Obeid No 5 and the Court of Criminal Appeal’s judgment have been published so as to remove any remaining basis for those judgments to be the subject of a non-publication order.’

    The judgment also reveals that Obeid’s trial has been relisted for June. Justice Beech-Jones noted that this would ordinarily mean that the NSW judgments would not be published on the courts’ caselaw database. However, he ‘considered that this judgment and the judgments in Obeid No 2, Obeid No 3 and Obeid No 5 should be “published” on Caselaw but only until 17 May 2016… [T]hey will then be removed, especially as Obeid No 2 canvasses factual details of the Crown case. Whether the Court of Criminal Appeal’s judgment will be “published” on Caselaw will be a matter for the members of that Court to determine.’ The various judgments, including the Court of Criminal Appeal’s, are indeed now on caselaw, but will presumably disappear in five weeks.

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