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  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]  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.