Eddie, Moses Obeid and The Left Testicle Guilty of Conspiracy Over Public Office Corruption

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Supreme Court
New South Wales
Case Name: R v Macdonald; R v Edward Obeid; R v Moses Obeid

(No 17)
Medium Neutral Citation: [2021] NSWSC 858
Hearing Date(s): 12 February – 6 April 2020; 31 August – 26 November

2020; 1 – 17 February 2021
Decision Date: 19 July 2021
Jurisdiction: Common Law
Before: Fullerton J
Decision: Verdict of guilty entered against each accused.
Catchwords: CRIME — conspiracy to commit the common law

offence of wilful misconduct in public office — elements
of the offence — whether the indictment disclosed an
offence known to law — joint trial of three co-accused
—accused Macdonald former Minister for Mineral
Resources in the Executive Government of the State of
New South Wales — scope and content of duties and
obligations of confidentiality and impartiality owed by a
Minister in the Executive Government of the State of
New South Wales — eight acts of wilful misconduct
particularised as acts by accused Macdonald in
furtherance of the conspiracy — overt acts of accused
Edward Obeid and Moses Obeid as acts in furtherance
of the conspiracy — circumstantial evidence case —
Shepherd direction — consciousness of guilt lies —
application of co-conspirators rule in s 87(1)(c) of the
Evidence Act 1995 (NSW)
Legislation Cited: Coal Mining Act 1973 (NSW)

Constitution Act 1902 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Procedure Act 1986 (NSW)
4GVTKGXGFHTQO#WUV.++QP,WN[CV 8GTKH[XGTUKQP
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Evidence Act 1995 (NSW)

Evidence (Audio and Audio Visual Links) Act 1998
(NSW)
Freedom of Information Act 1989 (NSW) (repealed)
Freedom of Information Act 1982 (Cth)
Independent Commission Against Corruption Act 1988
(NSW)
Migration Act 1958 (Cth)
Mining Act 1973 (NSW)
Mining Act 1992 (NSW)
Cases Cited: Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
Aston v R (1987) 26 A Crim R 128
Attorney-General v Guardian Newspapers (No 2) [1990]
1 AC 109
Attorney-General (UK) v Heinemann Publishers Pty Ltd
(1987) 10 NSWLR 86
Australian Competition & Consumer Commission v
Leahy Petroleum Pty Ltd [2007] FCA 794
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd
(1990) 169 CLR 279; [1990] HCA 11
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Bennett v R (1998) 144 FLR 311
Blackstock v R [2013] NSWCCA 172
Browne v Dunn (1893) 6 R 67 (HL)
Coco v AN Clark (Engineers) Ltd [1969] RPC 41
Edwards v The Queen (1993) 178 CLR 193; [1993]
HCA 63
Elomar v R [2014] NSWCCA 303
Esso Australia Resources Ltd v Plowman (1995) 183
CLR 10; [1995] HCA 19
Faulkner v Upper Boddington Overseers (1857) 3
CB(NS) 412
Fennell v The Queen [2019] HCA 37
Giorgianni v The Queen (1985) 156 CLR 473; [1985]
HCA 29
John L Pty Ltd v Attorney-General (NSW) (1987) 163
CLR 508; [1987] HCA 42
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Landini v State of NSW [2007] NSWSC 259
Mahmood v Western Australia (2008) 232 CLR 397;
[2008] HCA 1
Maitland v R; Macdonald v R (2019) 99 NSWLR 376;
[2019] NSWCCA 32
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Mulcahy v The Queen (1868) LR 3 HL 306

Nye v State of New South Wales (2002) 134 A Crim R
245; [2002] NSWSC 1268
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA
309
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA
221
Optus Networks Pty Ltd v Telstra Corporation Ltd
(2010) 265 ALR 281; [2010] FCAFC 21
Peacock v The King (1911) 13 CLR 619; [1911] HCA
66
Pereira v DPP (1989) 82 ALR 217; [1988] HCA 57
Peters v The Queen (1998) 192 CLR 493; [1998] HCA
7
Plus One International Pty Ltd v Ching (No 3) [2020]
NSWSC 1598
Quaid v R (2011) 210 A Crim R 374; [2011] WASCA
141
R v Anderson [1986] AC 27
R v Barbouttis (1995) 37 NSWLR 256
R v Clout (1995) 41 NSWLR 312
R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA
127
R v Dytham [1979] QB 722
R v Freeman (1985) 3 NSWLR 303
R v Ghosh [1982] EWCA Crim 2; [1982] QB 1053
R v Macdonald; R v Edward Obeid; R v Moses Obeid
(No 1) [2019] NSWSC 322
(No 2) [2019] NSWSC 775
(No 3) [2019] NSWSC 898
(No 4) [2019] NSWSC 1286
(No 5) [2019] NSWSC 1489
(No 9) [2019] NSWSC 1785
(No 12) [2020] NSWSC 1946
R v Macdonald; R v Edward Obeid: R v Moses Obeid
(No 13) [2020] NSWSC 1947
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(No 14) [2020] NSWSC 1948

(No 15) [2020] NSWSC 1949
R v Macraild (Court of Criminal Appeal (NSW), 18
December 1997, unrep)
R v McNamara (No 1) (1981) 56 CCC (2d) 193
R v Mills (1963) 47 Cr App R 49
R v Mok (1987) 27 A Crim R 438
R v O’Brien (1974) 59 Cr App R 222
R v Porter [1910] 1 KB 369
R v Quach (2010) 27 VR 310; [2010] VSCA 106
R v RK and LK (2008) 73 NSWLR 80; [2008] NSWCCA
338
R v Schipanski (1989) 17 NSWLR 618
R v Trudgeon (1988) 39 A Crim R 252
Shepherd v The Queen (1990) 170 CLR 573; [1990]
HCA 56
Shum Kwok Sher v HKSAR [2002] 3 HKC 117; (2002) 5
HKCFAR 381
Standen v R (2015) 253 A Crim R 301; [2015]
NSWCCA 211
The Commonwealth of Australia v John Fairfax & Sons
Ltd (1980) 147 CLR 39; [1980] HCA 44
The King v Boston (1923) 33 CLR 386; [1923] HCA 59
The Queen v Apostilides (1984) 154 CLR 563; [1984]
HCA 38
The Queen v Baden-Clay (2016) 258 CLR 308; [2016]
HCA 35
The Queen v LK; The Queen v RK (2010) 241 CLR
177; [2010] HCA 17
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22
Trudgeon v R (1988) 39 A Crim R 252
Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317
Xu v Minister For Immigration and Multicultural Affairs
(1999) 95 FCR 425; [1999] FCA 1741
Category: Principal judgment
Parties: The Crown

Ian Michael Macdonald (Accused)
Edward Moses Obeid (Accused)
Moses Edward Obeid (Accused)
Representation: Counsel:
S Callan SC / R Rodger (Crown)
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J Martin (Accused Macdonald)

A Francis (Accused Edward Obeid)
MJ Neil QC / M Kalyk (Accused Moses Obeid)
Solicitors:
Solicitor for Public Prosecutions (Crown)
M Bowe (Accused Edward Obeid)
Murphy’s Lawyers Inc (Accused Moses Obeid)
File Number(s): 2015/212910; 2015/214251; 2015/212851
TABLE OF CONTENTS
The law of conspiracy7c763c6dc - paragraph 13
The conspiracy charged in this trial94d41fd16 - paragraph 19
Controversies as to the elements of the conspiracy chargedd57f98a14 -

paragraph 22
The submissions of the Crownb515a9df0 - paragraph 30
The submissions of the accusedd70cf6a36 - paragraph 44
The authorities4badf85f0 - paragraph 47
Determination of the controversy as to the “final element” of the

substantive offence of misconduct in public office in a conspiracy to
commit that offence298b2e4e0 - paragraph 60
Is the conspiracy charged an offence known to the law?d850a6805 -

paragraph 72
Is the failure to allege an “improper purpose” fatal to the

indictment?ab35b28e5 - paragraph 75
Does the failure to specify acts of misconduct, or how they might be

committed, render the indictment defective?866a0f673 - paragraph 87
Is the use of the conjunction “and/or” in the indictment fatal?e1250f850 -

paragraph 112
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Mr Neil’s additional challenges to the indictment: Does the Crown have

to allege that Edward Obeid and Moses Obeid agreed to do anything to
further the object of the agreement?f41840294 - paragraph 120
Is the indictment defective because of the identity of the conspirators:

the relevance of The King v Boston4ede294b3 - paragraph 131
What is encompassed by the concept of acts (of misconduct) in

connection with the granting of an EL at Mount Penny?48134c7d8 -
paragraph 139
The indictment is not defective: the elements of the offence charged as

restatedaaf7d6d85 - paragraph 156
The timeframe of the conspiracy allegedfe367f1e0 - paragraph 160
The co-conspirators rule and the operation of s 87(1)(c) of the Evidence

Act306812912 - paragraph 171
The Crown case as particularised7059b8928 - paragraph 175
The eight acts of misconduct, as particularised79cafd0ac - paragraph

181
Proving the existence of the conspiracy by inference5400547ab -

paragraph 185
What is comprehended by Mr Macdonald’s duties of confidentiality and

impartiality as Minister for Mineral Resources?ec824e375 - paragraph
188
How do the Ministerial duties of confidentiality and impartiality impact on

proof of the Crown case?4950b452c - paragraph 194
The Ministerial Code of Conducte218a5178 - paragraph 211
The DPI Code of Conduct184432a9d - paragraph 220
What is confidential information as a matter of fact and law?3df32442b -

paragraph 229
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What constitutes the duty of confidentiality under the Ministerial Code of

Conduct?b51f0f324 - paragraph 233
The relevance, if any, of s 365 of the Mining Act8ee5df8ab - paragraph

247
The evidence of the DPI officers as to their understanding of their duty

of confidentiality64117e403 - paragraph 259
Mr Iemma and Mr Gibson’s evidence605a05dff - paragraph 273
What will need to be proved to constitute a breach of Mr Macdonald’s

duty of confidentiality?a6102c1f7 - paragraph 280
What constitutes the duty of impartiality under the Ministerial Code of

Conduct?107246c39 - paragraph 281
The Shepherd fact: Mr Macdonald’s knowledge of the Obeids’

ownership of Cherrydale Park605c01b30 - paragraph 292
The significance of the eight acts of misconduct to proof of the Crown

case1fc2d5784 - paragraph 296
What does the Crown need to establish were Mr Macdonald’s acts of

misconduct (as particularised) and to what standard of proof?30f7ed8e4
- paragraph 305
The significance of the date by which the conspiracy was in

existencec9bbcdcc4 - paragraph 311
Edward Obeid’s participation in the conspiracy (on the Crown

case)5bbe236fb - paragraph 335
Moses Obeid’s participation in the conspiracy (on the Crown

case)743699249 - paragraph 338
The further directions by which I am bound in my deliberations to

verdicte7d31b3f2 - paragraph 339
The documentary evidence tendered in the trial, in summarya6dccbdd9

- paragraph 360
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Witnesses called in the Crown case086b062b9 - paragraph 371
Parliamentary witnessese19fafc9d - paragraph 372
Bylong properties witnesses45f44337d - paragraph 375
DPI witnessesef5680f3e - paragraph 381
Ministerial staff832215f6e - paragraph 384
Monaro Mining NL witnesses94398641a - paragraph 386
Officers of the Independent Commission Against Corruption

(NSW) (ICAC)657277fb1 - paragraph 391
Expert witnessesf81fbcc26 - paragraph 395
Othersbfccd167e - paragraph 397
The primary issues in dispute arising from the evidence at

trial41105a2ea - paragraph 401
The significance of the pre-existing relationships between the accused

to proof of the Crown case026eeea8a - paragraph 407
Other relevant relationships involving Edward Obeid and Moses Obeid

as members of a family: trusts, directorships, family companies and
beneficial interests4d0308d6b - paragraph 410
Obeid Corporation Pty Ltdbfb21a12d - paragraph 417
Locaway P/L09e1bbbd9 - paragraph 418
The relationship between Mr Macdonald and Edward Obeid as

Parliamentary colleagues6b2fd9e8e - paragraph 422
Mr Macdonald and Edward Obeid: Factional allies3eb4b2745 -

paragraph 434
Budgetary challenges facing the Labor government in 2007-

200874d4c8877 - paragraph 448
Mr Macdonald and Edward Obeid: Electricity privatisation97ff70b32 -

paragraph 460
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Mr Macdonald and Edward Obeid: Personal relationship7e0b29fe9 -

paragraph 471
Mr Macdonald’s use of the Obeids’ Jindabyne apartmentbdb94b8bb -

paragraph 475
Edward Obeid and Moses Obeidb9898d567 - paragraph 478
The relationship between Mr Macdonald and Moses Obeid7ada9bdf9 -

paragraph 481
Other relationships: Mr Macdonald, Mr Fang and Moses

Obeid8f5f0ac02 - paragraph 487
Occasions where the accused are in each other’s physical

presence18d7be6fe - paragraph 501
The Telephone Summarye12ea8f1e - paragraph 510
Submissions of the Crownf1a2b66f8 - paragraph 518
Submissions of the accuseda0aa5f377 - paragraph 523
Diary entries5fb77fb10
Crown Caseda5633274 - paragraph 532
Edward Obeid and Mr Macdonald’s Parliamentary diaries7ef4736f7 -

paragraph 533
Parliamentary sitting days9db37fee4 - paragraph 535
The probative value of the Telephone Summary and Parliamentary

diariesdd1b94605 - paragraph 537
What were the circumstances in which Cherrydale Park was acquired

by the Obeid family in September 2007, when did the family learn of the
encroachment of Authorisation 247 held by Anglo American P/L on the
property and what impact did that knowledge have on their plans for the
use of Cherrydale Park as a rural holding?071ad4b02
The acquisition of Cherrydale Park75c0fd0cb - paragraph 539
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The location of Mount Penny adjacent to Cherrydale Park_Hlk75441276

- paragraph 545
Edward Obeid negotiates for the purchase of Cherrydale

Park8e5608ed8 - paragraph 555
Cherrydale Park is settlede09f2b2d5 - paragraph 563
The significance of Authorisations 287 and 3428b82b5924 - paragraph

571
What the accused knew of the likely coal reserves generally in the area
around Mount Penny, and what impact did that have on the Obeid
family’s plans for the use of Cherrydale Park as a rural holding and
“rural retreat”?520bdeba6 - paragraph 578
Mr Macdonald’s knowledge of the ownership of Cherrydale Park as a

fact indispensable to proof of the guilt of each of the accusedda17de9a1
- paragraph 591
Sources of evidence relied upon by the Crown to prove Mr Macdonald’s

knowledge beyond reasonable doubt82053c0b8 - paragraph 597
The submissions of the accused directed to proof of the Shepherd fact

and its relationship with the “but for” test44b784a61 - paragraph 607
The question when Mr Macdonald learnt of the Obeids’ purchase of

Cherrydale Park (if he did)d8157d7cb - paragraph 613
What does the water licences issue reveal about Mr Macdonald’s

knowledge of the ownership of Cherrydale Park?15b5b3e5b -
paragraph 616
Mr Badenoch’s evidence concerning the water licences24ca685b4 -

paragraph 622
I am satisfied Mr Badenoch made the water licences enquiry at Mr

Macdonald’s request0d6c889cc - paragraph 642
What weight attached to the first and second acts of misconduct in proof
of the Shepherd fact?0fd012912 - paragraph 645
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The staff structures within the Minister’s office and the DPIe0ddef18b -
paragraph 654
The role of the Coal and Petroleum Group within the Minerals Division
of the Department of Primary Industriesa637770d0 - paragraph 665
Communication between the DPI and the coal mining

industryacb468403 - paragraph 668
What is coal?7e2ca8bb1 - paragraph 674
Coal mining methods and coal seams7a95c7a24 - paragraph 678
Coal resources in New South Wales024426e15 - paragraph 683
Coal exploration activities40eb27fef - paragraph 685
The granting of an EL under the Mining Act5f97caef2 - paragraph 687
The statutory scheme in the Mining Act for the grant of an EL4206e5add
- paragraph 692
The designation of New South Wales as a Mineral Allocation Area for

coalf8f2c4be9 - paragraph 696
Recommendations by the DPI to the Minister about releasing particular

coal resources to tender35fe98289 - paragraph 700
The Guidelines for Allocation of Future Coal Exploration Areas (Coal

Allocation Guidelines)3a0b80677 - paragraph 703
Identifying coal resources for direct allocation and competitive

tender10fead2ec - paragraph 715
A limited form of expression of interest840385459 - paragraph 722
The Evaluation Committee’s selection of a preferred mining

companyaab528c69 - paragraph 725
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
Actef0cdd15f - paragraph 727
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Application by the recommended company for the EL under s 13 of the

Mining Actae6aef993 - paragraph 729
The grant of the EL by the Ministerdbbaf95bb - paragraph 730
The policy imperatives for the release of new small to medium coal
release areas in the Western Coalfield in 2008cae941f66 - paragraph
734
The significance of Additional Financial Contributionsc616d3bf5 -

paragraph 740
The DPI’s knowledge of coal in the Bylong Valley (in the area of Mount
Penny) and the DPI’s holdings under EL 667601825b8e2 - paragraph
744
Mr Macdonald’s enquiries of the DPI in 2008 about coal reserves in the

Bylong Valley in the area of Mount Penny687a4b073 - paragraph 754
The enquiries made by Mr Gibson on behalf of Mr Macdonald on 9 May

2008 and 14 May 2008 - particularised by the Crown as the first and
second acts of misconductc91d598ae - paragraph 759
The evidence relied upon to prove the first act of misconductc822d2e6a

- paragraph 760
The production of Wiles Map 1 and the Ministerial Briefing56ea3d71b -

paragraph 767
The evidence relied upon to prove the second act of

misconduct8b4a566f4 - paragraph 780
Is the first act of misconduct and/or the second act of misconduct

proved?d92fbbfd4 - paragraph 797
The Shepherd fact is proved beyond reasonable doubt41abdbbdf -

paragraph 812
The first and second acts of misconduct are established628fec2d4 -

paragraph 816
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The relevance of the evidence of Mr and Mrs Fitzhenry to proof of the

Crown casecf38326ec - paragraph 821
Mr Fitzhenry’s evidence8f8275802 - paragraph 845
Mrs Fitzhenry’s evidence8d105192d - paragraph 852
The weight to be afforded the evidence of Mrs Fitzhenry99b4a2796 -

paragraph 869
The weight to be afforded the evidence of Mr Fitzhenryb7c89c6bf -

paragraph 870
The events after 14 May 2008 up to and including the meeting on 6

June 20082dae002ac - paragraph 873
The third act of misconduct is abandoned by the Crown63a5e50e1 -

paragraph 877
The events leading up to the 4 June 2008 meetingf86781533 -

paragraph 884
The Watermark EL76007677a - paragraph 887
Further events preceding the 4 June 2008 meeting90e36d098 -

paragraph 895
The Ministerial Briefing of 2 June 2008 which included Wiles Map 2 and
Ms Moloney’s six small arease218d6495 - paragraph 904
The preparation of Wiles Map 25174bbd17 - paragraph 908
Wiles Map 26c4225066
Ms Moloney’s identification of the “Six Small Areas”b519137ec -

paragraph 914
The Ministerial Briefing of 3 June 2008471c50401 - paragraph 915
The 4 June 2008 meetingfeee8900b - paragraph 922
Some preliminary observations with regard to the fourth act of

misconduct59e06b065 - paragraph 934
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The significance of the fifth act of misconduct to proof of the existence

of the conspiracy148e79588 - paragraph 940
The fifth act of misconduct66bf6d33e - paragraph 950
The 6 June 2008 meeting136fcbda5 - paragraph 951
Mr Gibson’s evidence in summary2ca82fd21 - paragraph 956
Mr Mullard’s evidence in summary7c76b37a8 - paragraph 961
The Crown’s position on how the Court should resolve conflict in the
evidence33e564559 - paragraph 982
The position of the accused1f1209f85 - paragraph 997
Is there common ground between the evidence of Mr Gibson and Mr

Mullard as concerns the 6 June 2008 meeting?f20d1ee9f - paragraph
1015
Is the fifth act of misconduct proved?fd7e38547 - paragraph 1041
Other factual findings arising from the 4 June 2008 and 6 June 2008
meetings61e224b2a - paragraph 1046
Despite the fifth act of misconduct not being proved, is the evidence
otherwise capable of establishing proof of the existence of the
conspiracy beyond reasonable doubt?ffa61596f - paragraph 1049
When was the “Mount Penny Coal Release Area” (encompassing

Cherrydale Park, Coggan Creek and Donola) designated and when was
it included as Mount Penny Coal Release Area in the closed EOI
process for the grant of an EL?5269b3d80 - paragraph 1062
The 17 June 2008 meetinga1c92f686 - paragraph 1069
Mr Schiavo creates Diagram X encompassing Cherrydale Park, Donola

and Coggan Creekc3955acfb - paragraph 1074
Diagram X6fd32b2eb
The sixth act of misconduct9e9aff788 - paragraph 1093
The 16 June 2008 EOI Areas document554128208 - paragraph 1097
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The 16 June 2008 meeting846c53d22 - paragraph 1103
The 16 June 2008 Credo Dinnere565c6b56 - paragraph 1108
The 17 June 2008 meeting [1023]f8ec2c5bf - paragraph 1112
Was there the “opportunity” for Mr Macdonald to provide the “timetable

information” to Edward Obeid or Moses Obeid?0c45c71b9 - paragraph
1120
The relevance of the 23 July 2008 Rumore conference to proof of the

sixth act of misconduct6454e5634 - paragraph 1124
The letters by Mr Grigor and Mr Irwin0e9fc182c - paragraph 1131
Mr Grigor’s letters4945f9a92 - paragraph 1132
Mr Irwin’s letterdc14ea426 - paragraph 1136
The source of the information provided by Mr Brook58099313d -

paragraph 1138
Is the sixth act of misconduct established?2398049b9 - paragraph 1147
The timing and significance of Mr Rumore being retained to act for the
Obeid family on 23 June 20082ad64338e - paragraph 1156
“Tianda” and Mr Fang are introduced to Moses Obeid who then

introduces them to Mr Rumorebd59e5350 - paragraph 1164
The initiation of contact between Mr Fang and Moses Obeid9b377c83b

- paragraph 1168
The submissions of the accused8da245662 - paragraph 1172
Mr Fang’s further dealings in relation to the Mount Penny area0783f822f

- paragraph 1181
Did Mr Macdonald introduce Mr Fang and Moses Obeid?58470ccd7 -

paragraph 1186
The first Wentworth Hotel meeting between Mr Brook and Moses Obeid:
3 July 2008d21e9404f - paragraph 1194
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My ultimate rejection of the “exit strategy” as an innocent

explanationa39158f05 - paragraph 1204
The significance of Moses Obeid’s representation concerning a

landholders alliance in his contractual dealings732b933cc - paragraph
1213
The acquisition of Donola and Coggan Creek and the question of the
existence of a landholders alliance61647be02 - paragraph 1218
The first Wentworth Hotel meeting concludes619b96e5c - paragraph

1240
The second Wentworth Hotel meetinged3102ec7 - paragraph 1244
Paul Obeid provides a cardboard cylinder containing “maps”22e6bef48 -

paragraph 1247
The voir dire on the issue of the “maps”12179a551 - paragraph 1253
The voir dire concludesc8a3c75f2 - paragraph 1258
Mr Brook’s evidence about the “maps”543442768 - paragraph 1259
The significance of the “contiguous” or “adjacent” area to the question

whether Wiles Map 2 was produced at the second Wentworth Hotel
meeting6b8c85cc1 - paragraph 1272
The relationship between the contiguous/adjacent zone and “Stage 2” of

the project as advanced by Mr Brook in his dealings after 7 July
20086e20f3ec0 - paragraph 1282
Is the fourth act of misconduct established?1b7a18ea3 - paragraph

1301
Was Wiles Map 2 produced to Paul Obeid at the second Wentworth

Hotel meeting?38090306c - paragraph 1315
The issue of Mr Brook’s credibility on the question whether Wiles Map 2

was produced at the second Wentworth Hotel meeting and more
generally56eacd680 - paragraph 1318
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Submissions of the Crown on the confidentiality of Wiles Map

155839189f - paragraph 1333
Submissions of the Crown on the confidentiality of Wiles Map

2524936ab5 - paragraph 1342
Submissions of the accused as to whether Wiles Map 1 and/or Wiles

Map 2 were confidential68bc1a93a - paragraph 1343
Is the fourth act of misconduct established and, if so, was it committed

in furtherance of the conspiracy?ea5f71148 - paragraph 1347
The second Wentworth Hotel meeting concludesb335252ac - paragraph

1359
Mr Brook’s actions after the second Wentworth Hotel

meetinga308d4d8c - paragraph 1362
The seventh alleged act of misconduct9871fc9dd - paragraph 1364
The evidence relevant to the preparation of the 2 July 2008

listd97543ec2 - paragraph 1370
The Coal Register as the primary source from which the list was
compiled5fe8d633f - paragraph 1373
Was the Coal Register confidential?ff6a9c482 - paragraph 1374
The earlier draft lists of companies created by the DPIc05a5cb15 -

paragraph 1375
The 2 July 2008 listb12244153 - paragraph 1379
The form in which the 2 July 2008 list was provided to the
Ministera9d884ccb - paragraph 1385
The 7 July 2008 meeting with the Minister6cf37481f - paragraph 1389
Opportunity for Mr Macdonald to provide the 2 July 2008 list or the

information on it to the Obeidsf94efe86e - paragraph 1391
The handwritten list0bf1db47b - paragraph 1395
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Was the handwritten list in Moses Obeid’s writing?9917a23ed -

paragraph 1396
What is the significance, if any, of the variations between the 2 July list
and the handwritten list as concerns the provenance of the handwritten
list?6df9bf3b8 - paragraph 1405
The form and content of the various lists of companies in

evidencede239ad15 - paragraph 1410
The submissions of the accusedf95a16756 - paragraph 1420
Did Mr Macdonald provide the 2 July 2008 list (or the information it
contained) to Moses Obeid?064fb9484 - paragraph 1438
Was the provision of the 2 July 2008 list (or the information on it) in
breach of Mr Macdonald’s duties of confidentiality and/or impartiality
and, if so, was that act of misconduct committed in furtherance of the
conspiracy?f88a1514d - paragraph 1444
Dealings between Mr Brook (including as on behalf of Lehman

Brothers), the Obeid family, and Monaro Mining NL4f72946c2 -
paragraph 1453
Mr Brook undertakes “desktop due diligence” of the handwritten list of

companiesde7d24772 - paragraph 1458
Mr Brook approaches Monaro Mining NL199aeec2f - paragraph 1459
Monaro Mining NL’s dealings with the DPI in 2007 and 2008d2e86e223
- paragraph 1464
Mr Brook’s further dealings with Monaro Mining NL69852f468 -

paragraph 1472
The 18 July 2008 conference with Mr Rumore and the first mention of
Mr Brook and Monaro Mining NL3bc43e0f9 - paragraph 1478
The “false” paper trail is createdefdcf324c - paragraph 1482
23 July 2008: The initial Brook-Rumore-Obeid meeting and Lehman

Brothers’ rejection of Mr Brook’s proposal4100d5a2d - paragraph 1498
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The Brook-Wong teleconference on 23 July 20089432f6726 - paragraph

1510
The Share Option Deed between Voope P/L and Monaro Mining
NL49ce18376 - paragraph 1519
The first draft of the Share Option Deed [1604]94242fbca - paragraph

1520
The second draft of the Share Option Deed [1620]8d38c66e8 -

paragraph 1528
The third draft of the Share Option Deed [1650]3bea23d83 - paragraph

1542
The fourth draft of the Share Option Deed [1660]f42c05e2f - paragraph

1548
The executed Share Option Deed [1666]079c788f5 - paragraph 1552
Meanwhile at the DPI: The production of the documents the subject of

the eighth act of misconduct from late July 2008597abfa02 - paragraph
1563
The eighth act of misconduct85ad224ba - paragraph 1567
The Coutts memorandum of 5 August 20080bc19eac0 - paragraph

1582
Is the eighth act of misconduct established and, if so, was it committed

in furtherance of the conspiracy?2ff7465fc - paragraph 1587
The impact of the fact the Coutts Memorandum was not signed by the
Minister upon proof of the eighth act of misconduct74f5d2333 -
paragraph 1598
The public launch of the EOI process and Monaro Mining NL is

invitedda94bffef - paragraph 1608
Dealings between Mr Brook, Monaro Mining NL and the Obeids

following the collapse of Lehman Brothers7e1d7da5c - paragraph 1612
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The reopening of the EOI process and the ninth act of

misconduct71b247e47 - paragraph 1636
The extension of the EOI process0f2c5f639 - paragraph 1638
Is the ninth act of misconduct established?f7929076c - paragraph 1662
Monaro Mining NL’s Additional Financial Contribution (AFC)2d0e7a297

- paragraph 1672
Cascade Coal P/L submits an application for Mount Penny in the

reopened EOI process4c1bdbf65 - paragraph 1689
Post-conspiracy period332d6659e - paragraph 1694
Moses Obeid meets with representatives of Cascade Coal

P/L48d36cbee - paragraph 1700
The Evaluation Committee identifies an ambiguity in Monaro Mining

NL’s application4e47e59ca - paragraph 1702
Monaro Mining NL abandons its application1462898e3 - paragraph

1720
The Swissôtel Meeting78653c2f0 - paragraph 1723
Were there further meetings between Mr Brook and Mr

Rampe?c99be8e51 - paragraph 1728
The first Cascade Coal P/L meeting4f97df29f - paragraph 1730
The second Cascade Coal P/L meeting8ddc10c86 - paragraph 1734
The third Cascade Coal P/L meetingdc69e04fb - paragraph 1738
The Evaluation Committee’s decision in respect of the Mount Penny

Coal Release Area and the grant of the EL33f361e55 - paragraph 1754
Mr Brook’s credibility and reliabilitydc644fd39 - paragraph 1767
Sale of the Joint Venture07f0119e4 - paragraph 1781
The Rights Termination Agreementf7de059de - paragraph 1797
The Deed of Chargec128b3351 - paragraph 1800
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Payment of Tranche 182713178d - paragraph 1804
Tranche 2bad897e6a - paragraph 1806
Is the existence of the conspiracy established beyond reasonable

doubt?233967a6a - paragraph 1822
Money and motivation396d2b114 - paragraph 1882
The financial motives the Crown attributes to Edward Obeid and Moses
Obeid370f96617 - paragraph 1883
The accused’s submissions concerning motive7343be8c1 - paragraph

1889
The motives the Crown attributed to Mr Macdonaldcbad9f750 -

paragraph 1893
Mr Martin’s submissions on the question of motived33d08838 -

paragraph 1894
Change of ownership of Cherrydale Parkd1b8d3b94 - paragraph 1899
The appointment of UPG P/L as the new trustee company for the
Moona Plains Family Trust435cf86ab - paragraph 1905
The Tripartite Landowners Deed7f50eda26 - paragraph 1924
The Profit Sharing Deed1a41cd0cf - paragraph 1929
Moses Obeid’s further role in distancing the Obeid family from

ownership of Cherrydale Park1bdddf8a1 - paragraph 1936
Is Moses Obeid’s participation in the conspiracy proved beyond

reasonable doubt?6792c9f8b - paragraph 1951
The lies Moses Obeid told to Ms Davies6252b4273 - paragraph 1970
The lies Moses Obeid told to Mr Shanahan and Ms Jiminezedc0b9c45 -

paragraph 1972
The guilt of Mr Macdonald and Moses Obeid is established beyond

reasonable doubtda2a0a907 - paragraph 1979
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Is Edward Obeid’s participation in the conspiracy proved beyond

reasonable doubt?a66063a56 - paragraph 1981
The co-conspirators rule1ec578faf - paragraph 1998
The Jones v Dunkel direction sought by the accusedb9224590b -

paragraph 2021
Ultimate findings0ccc020f2 - paragraph 2031
Am I satisfied of the seriousness of the offending and that it merits

criminal punishment?157b9eed4 - paragraph 2034
Verdicts7d8379d67 - paragraph 2046
JUDGMENT
1 HER HONOUR: The joint trial of the accused Mr Ian Macdonald, Mr Edward
Obeid and Mr Moses Obeid was listed to commence before me on 10 February
2020 without a jury.1
2 During the course of pre-trial hearings on 3 - 9 April and 6 May - 6 June 2019,
a draft indictment dated 8 April 2019 was served on the parties and furnished
to the Court. It contained a minor amendment to the indictment dated 13 July
2017 upon which the accused were originally arraigned on 6 October 2017.
The accused were not re-arraigned on the amended indictment.
3 The pre-trial hearings were conducted on the basis that the slightly
reformulated charge in the indictment dated 13 July 2017 would be the offence
the Crown intended to prosecute at trial and the charge upon which the
accused would be re-arraigned at the commencement of the trial. That
remained the position when the trial was listed for mention on 5 February 2020
to confirm the trial date. That indictment was in the following terms:
1. Between about 1 September 2007 and about 31 January 2009 at Sydney

and elsewhere in the State of New South Wales (NSW), conspired together
that Ian Michael Macdonald (Macdonald) in the course of or connected to his
public office as Minister for Mineral Resources would wilfully misconduct
himself, without reasonable cause or justification, by doing acts in connection
with the granting of an exploration licence at Mount Penny NSW:
1
On 12 December 2019, I made an order pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) that the
trial proceed in that way (see R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 9) [2019] NSWSC 1785).
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(a) without impartiality on the part of Macdonald; and/or

(b) in breach of Macdonald's duties of proper confidentiality; and
(c) concerning the interests of Edward Moses Obeid, Moses Edward
Obeid, and/or their family members and/or associates, such
misconduct being serious and meriting criminal punishment 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 objects.
4 On 9 February 2020, the Crown notified its intention to seek a grant of leave to
amend the indictment dated 13 July 2017 and to have the accused re-
arraigned on a reformulated charge of conspiracy to commit the common law
offence of wilful misconduct in public office.2
5 The charge as reformulated was in the following terms:
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 or recklessly 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.
(Emphasis added.)
6 On 10 February 2020, the first day of the trial, the Crown applied for leave
under s 20 of the Criminal Procedure Act 1986 (NSW) to amend the indictment
in those terms.
2
The conspiracy alleged is itself a common law offence.
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7 The application for leave to amend the indictment was opposed by each of the
accused. Mr Martin, counsel for Mr Macdonald, submitted that the reformulated
charge was defective for latent duplicity and/or a lack of particularity in the
identification of what the Crown alleged to be the acts of wilful misconduct Mr
Macdonald agreed with Edward Obeid and Moses Obeid he would commit in
the Office he held as Minister for Mineral Resources.
8 Ms Francis, counsel for Edward Obeid, contended that the reformulated charge
did not disclose an offence known to law and, that being the case, Edward
Obeid intended to enter a demurrer to the indictment were leave granted to
amend it.
9 Mr Neil QC, senior counsel for Moses Obeid, complained that for the Crown to
allege that the accused agreed that Mr Macdonald would wilfully misconduct
himself in public office, either by knowingly acting in breach of his Ministerial
duties and obligations or because he was reckless as to whether that were so,
was to render the charge defective as a matter of law. Mr Neil also raised the
possibility that his client might demur to the indictment irrespective of whether
the Crown’s application for leave to amend the indictment was granted.
10 On 10 February 2020, after I reserved my decision on the Crown’s application

for leave to amend the indictment, the Crown notified its intention to have the
accused arraigned on a further reformulated charge in the following terms, the
words “or recklessly” having been deleted:
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;3 and
3
Pursuant to s 29(1) of the Mining Act 1992 (NSW), the holder of an exploration licence (EL) is entitled to
prospect on specified land for a specified mineral or minerals. On 21 October 2009, EL 7406 for coal was
granted over an area of 8,370 hectares in the Bylong Valley. That area included Mount Penny, a prominent
topographical feature located adjacent to three properties owned either by the Obeid family (Cherrydale Park)
or by associates of that family (Donola and Coggan Creek). The events leading to the grant of that EL, including
Mr Macdonald’s role as the responsible Minister, are the subject of extensive analysis throughout the
judgment.
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(b) concerning the interests 4 of Edward Moses Obeid, and/or Moses Edward
Obeid and/or their family members 5 and/or associates;6 and
(c) knowingly in breach of:
(i) his duties and obligations of impartiality as a Minister in the
(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.
11 On 11 February 2020, following correspondence from the Crown which
attached the further amended indictment, the Court reconvened. The accused
did not oppose leave being granted to file the further amended indictment.
12 On 12 February 2020, the Crown formally presented an indictment dated 11

February 2020 upon which the accused were re-arraigned. On their
arraignment each of the accused entered a plea of not guilty.7
The law of conspiracy

13 The offence of misconduct in public office is a common law offence. 8 A
conspiracy to commit that offence is also a common law offence. 9 At common
law, a conspiracy is an agreement intentionally entered into between two or
more people to do an unlawful act or to do a lawful act by unlawful means. 10
4
The Crown case, as ultimately particularised, was that the meaning of the words “concerning the interests of”
in the indictment “does not require particularisation beyond the ordinary meaning of the words”. It was the
Crown case that Mr Macdonald agreed to misconduct himself with the improper purpose of advancing the
interests (primarily financial) of Edward Obeid, Moses Obeid and/or their family members and/or associates.
See MFI 134/1 p 9.
5
The Crown case, as ultimately particularised, was that the “family members” referred to in the indictment are
Edward Obeid, his wife Judith Obeid and their descendants. See MFI 134/1 p 9.
6
The Crown case, as ultimately particularised, was that the “associates” referred to in the indictment included
Justin Kennedy Lewis, Ross and Rocco Triulcio, Giovanni (John) Campo, Tina Chalabian, Sevag Chalabian, Sid
Sassine and Andrew Kaidbay. See MFI 134/1 p 10.
7
T 1-2.
8
R v Quach (2010) 27 VR 310; [2010] VSCA 106 at [46]. The analysis of the elements of the offence of
misconduct in public office in Quach is referred to, without criticism, in Obeid v R (2015) 91 NSWLR 226; [2015]
NSWCCA 309 at [133] and Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 at [67]-[84].
9
Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39.
10
In Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 at [51] McHugh J (Gummow J agreeing) expressed
the view that although that is a definition that finds its sour ce in Mulcahy v The Queen (1868) LR 3 HL 306 at
317, it was not clear what the second limb of the definition adds, given that both limbs require an agreement
to do an unlawful act.
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14 It is the fact of the agreement, or combination, to engage in a common

enterprise of that kind which is the actus reus of the offence of conspiracy.
However, in the absence of evidence of the words used or other conduct of the
alleged conspirators at the time the agreement is forged, what is done in
executing the agreement is commonly relied upon to prove both an anterior
agreement to achieve the unlawful objective and the terms of that agreement,
sometimes referred to as the scope of the agreement.
15 Proof of the scope of a conspiracy may also consist in evidence of the separate
acts and declarations of the alleged co-conspirators which point to their
common or shared objective. When considered in combination, those separate
acts and declarations may justify the tribunal of fact finding that there must
have been a conspiracy of the kind alleged.11
16 The mental element that renders a person liable as a conspirator is a shared

intention with at least one other person that the unlawful act be committed. To
express it another way, the agreement that is the essence of the offence of
conspiracy consists in the manifestation of a common intention that an unlawful
act occur. A mere expectation by one or more of the alleged conspirators that
an unlawful act will occur will not be sufficient to make out the offence. 12
17 Accordingly, in this trial it is not enough for the Crown to prove that Edward
Obeid and Moses Obeid had the hope or expectation, however fervently held,
that Mr Macdonald would misconduct himself as the Minister for Mineral
Resources in connection with the granting of an exploration licence (EL) at
Mount Penny in a way that would be to their ultimate benefit; each of the
accused must have agreed that he would act in that way.
18 In this trial, as in any trial where a conspiracy is alleged, a clear distinction

must be made and maintained between the existence of the conspiracy that is
alleged and the participation of each of the alleged conspirators in it. Proof of
both facts, to the criminal standard, is essential to proof of guilt.
11
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 cited with approval in Ahern v The Queen (1988) 165
CLR 87; [1988] HCA 39 at 93 and 100.
12
R v Trudgeon (1988) 39 A Crim R 252.
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The conspiracy charged in this trial

19 The offence upon which the accused were ultimately arraigned alleges that
“[b]etween about 1 September 2007 and about 31 January 2009” they each
“conspired together” (that is, they each intentionally entered into an agreement)
that “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”, Mr
Macdonald would “wilfully” (that is, knowingly)13 “misconduct himself” by acting
in breach of his Ministerial duties and obligations of confidentiality and/or
impartiality, “in connection with the granting of an exploration licence” at Mount
Penny, and that he would do so for the improper purpose of benefiting Edward
Obeid and/or Moses Obeid and/or members of their family and/or their
associates.
20 Put simply, it is the Crown case that each of the accused agreed that as
Minister for Mineral Resources Mr Macdonald would commit the common law
offence of misconduct in public office by doing “the acts” alleged in the
indictment, namely (unspecified) acts in connection with the granting of an EL
at Mount Penny concerning the financial interests of the accused and/or
members of their family and/or their associates, for the improper purpose of
benefitting some or all of those people, and that, by agreeing that Mr
Macdonald would act in that way, each of the accused knew and intended that
Mr Macdonald would wilfully breach his Ministerial duties and obligations of
impartiality and/or confidentiality.
21 The indictment also alleges that the misconduct is:
… 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.
Controversies as to the elements of the conspiracy charged
22 Two related controversies as to the elements of the conspiracy charged were
addressed by the parties in their closing submissions.
13
MFI 181 p 8.
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23 The first concerned whether it is an element of the substantive offence of

misconduct in public office that the misconduct in question is so serious as to
merit criminal punishment and, if it is, how that element is imported into a
conspiracy to commit that offence.
24 A related controversy concerned whether the Crown is obliged to prove that at

the time the conspiratorial agreement was reached, each of the accused knew
or appreciated that the acts of misconduct it was agreed Mr Macdonald would
commit in public office was so serious as to merit criminal punishment, where
the Crown alleges an agreement at a high level of generality rather than an
agreement which contemplated that Mr Macdonald would commit specified
acts of misconduct in furtherance of achieving the object of the conspiracy, or
whether I am required to make that assessment before verdicts of guilty could
be returned against the accused.
25 The following analysis addresses and resolves those controversies.
26 The first question involves a consideration as to whether what has been

identified in the case law as the final element of the substantive offence of
misconduct in public office, obliging the tribunal of fact to be satisfied that the
proven act(s) of misconduct are so serious as to merit punishment before a
conviction can result,14 is imported as an element into a conspiracy to commit
that offence. If it is, it follows that the Crown would be obliged to prove that
those alleged to be party to an agreement that a public officer should wilfully
misconduct themselves in public office must also know and intend that the
misconduct comprehended by the agreement is so serious as to merit criminal
punishment, and that they knew or appreciated that fact at the time they
agreed to be party to the agreement.
27 That is a question as to which there is no binding or persuasive authority.
28 Its resolution will also inform resolution of the wider challenge to the indictment
mounted by each of the accused. In different ways and with different emphasis,
counsel for the accused in their closing submissions argued that the indictment
14
R v Quach (2010) 27 VR 310; [2010] VSCA 106.
5KIPGFD[#WUV.++
does not disclose an offence known to the law and that I should direct verdicts
of not guilty for each of the accused.
29 These various challenges to the indictment need to be resolved before any

consideration can be given to resolving the factual disputes that arise on the
evidence, and whether the facts and circumstances that I am satisfied are
established by the evidence are sufficient to prove the guilt of any of the
accused of the conspiracy alleged beyond reasonable doubt. 15
The submissions of the Crown

30 In the Crown’s submission, the elements of the conspiracy offence charged are
clearly identified in the way the indictment is framed.
31 Having regard to the elements of the substantive offence of misconduct in

public office, the Crown accepted that in proving a conspiracy to commit that
offence, it must prove that each of the accused knew or intended that Mr
Macdonald would:
i. as a public official;
ii. in the course of, or connected to, his public office;
iii. commit misconduct by:
a. intentionally doing acts in connection with the granting of an
exploration licence at Mount Penny NSW;
b. with the improper purpose of benefitting Edward and/or Moses
Obeid and/or their family members and/or associates;
iv. commit the misconduct set out at (iii) above wilfully, that is knowing that
he was acting in breach of:
a. his duties and obligations of impartiality as a Minister in the
b. his duties and obligations of confidentiality as a Minister in the
Executive Government of the State of New South Wales;
v. without reasonable excuse or justification.
15
Before turning to those questions, I note that the events the subject of the trial were the subject of various
drafted and executed contractual agreements , minuted conferences, diarised meetings, Departmental
documents and email correspondence. Those events also concerned and involved a range of individuals, many
of whom gave evidence in the Crown case, and some of whom are referred to in the following anal ysis. The
categories of the documentary evidence tendered by the Crown and the witnesses who gave evidence in its
case are set out at par 360 and following below. I also note that a full dramatis personae is annexed to the
judgment (Annexure 1).
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32 In relation to iii(b.) above, the Crown accepted that it was also obliged to prove
that each of the conspirators appreciated that “but for” the improper purpose
alleged, Mr Macdonald would not have agreed to act in connection with the
granting of an EL at Mount Penny in wilful breach of his Ministerial duties and
obligations. The improper purpose need not be the sole purpose for which Mr
Macdonald agreed to misconduct himself in the way alleged, but it must be
proved that he would not have acted in the way alleged were it not for that
improper purpose.16
33 The Crown submitted17 that were I satisfied that each of the elements in (i)-(v)
above are proved beyond reasonable doubt, before I could convict any of the
accused I must also be satisfied, beyond reasonable doubt, that the
misconduct the subject of the agreement into which each of the accused
intentionally entered was serious and meriting criminal punishment having
regard to the responsibilities of the Office Mr Macdonald occupied as the
Minister for Mineral Resources, 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 proven departure from those objects.
34 In the Crown’s submission, where a conspiracy to commit the substantive

offence of misconduct in public office is charged, this final “element” does not
require the Crown to prove that the alleged conspirators knew, intended or
were aware that the commission of the particular acts of misconduct in public
office contemplated by the agreement into which they intentionally entered
were, or would be, so serious as to merit criminal punishment.
35 That is, for the purposes of this trial, the Crown submitted it was not obliged to
prove that the accused agreed and intended that the acts of misconduct it was
agreed Mr Macdonald would commit18 pursuant to the agreement into which
they each intentionally entered, and in which they each agreed they would
participate, was, or would be, so serious that it merited criminal punishment. In
16
Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 at [84].
17
MFI 181 pars 11 and 726. See also Shum Kwok Sher v Hong Kong Special Administrative Region [2002] 3 HKC
117; (2002) 5 HKCFAR 381 at [86], referred to with approval in Blackstock v R [2013] NSWCCA 172 at [13];
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [141]; R v Quach (2010) 27 VR 310; [2010] VSCA 106 at
[42].
18
Namely (unspecified) acts in connection with the granting of an EL at Mount Penny concerning the interests
of the accused and other unnamed members of their family and associates.
5KIPGFD[#WUV.++
the Crown’s submission, that “aspect” of the conspiracy, as framed in the

indictment, is a qualitative assessment to be undertaken by the tribunal of fact.
It only arises if I am satisfied that the existence of the conspiracy is proved
beyond reasonable doubt and that the participation of the accused whose guilt
is under consideration is also proved beyond reasonable doubt.
36 In the Crown’s analysis, the final “element” of the substantive offence of

misconduct in public office operates to confine its scope so as to distinguish it
from other conduct of a public official, or of a person holding public office,
which might attract public condemnation, including, for example, corrupt
conduct under statute.19 The Crown submitted it is for that reason that the
seriousness of the misconduct is assessed in the context of the responsibilities
of the Office occupied by the public official and the public objects served by the
Office and the Officeholder.
37 In the Crown’s submission, the significance of the qualitative assessment of the

proven misconduct that must be undertaken by the tribunal of fact where a
conspiracy to commit the common law offence is charged, also operates as a
precondition to conviction and in the same way. That is, before a verdict of
guilty could lawfully be returned against any of the accused in this trial, I must
be satisfied that the scope or object of the misconduct which it was agreed Mr
Macdonald would commit is so serious as to attract punishment as a crime. In
that way, the conspiracy charged is distinguished from an agreement to commit
another criminal offence that might also attract public opprobrium, including, for
example, a conspiracy to defraud committed by executives of a public
corporation.
38 The Crown submitted that, viewed in that way, and despite that qualitative
assessment being described as an element of the substantive offence of
misconduct in public office in the cases in this Court which have recently
considered the constituent elements of that offence,20 that assessment is not
an element of the substantive offence, at least not in the technical sense.
19
For example Independent Commission Against Corruption Act 1988 (NSW) Part 3; Crimes Act 1900 (NSW)
Part 4A.
20
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221;
Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32.
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Rather, it comprehends what the Crown described as “an act, fact or

circumstance, or state of mind [of the accused] at the time of [the commission
of] the offence which renders it criminal”.21
39 The Crown submitted the correctness of that analysis follows, by analogy, from
Peters v The Queen22 where the concept of dishonesty in a charge of
conspiracy to defraud the Commonwealth was held not to be a separate
element of that offence. For that reason, the subjective test of dishonesty
formulated in the English cases, including R v Ghosh,23 which required a jury to
be satisfied that an accused must realise that what they were doing was
dishonest by the standards of ordinary and reasonable people, was regarded
as superfluous in a conspiracy to defraud under the Crimes Act 1914 (Cth). As
Toohey and Gaudron JJ observed at [9], dishonesty in the context of that
offence is a characteristic of the means the conspirators agreed would be
employed to affect the fraud and also descriptive of what is involved in fraud.
40 At [15], a passage upon which the Crown placed particular reliance, their
Honours said:
There is a degree of incongruity in the notion that dishonesty is to be

determined by reference to the current standards of ordinary, honest persons
and the requirement that it be determined by asking whether the act in
question was dishonest by those standards and, if so, whether the accused
must have known that that was so. That incongruity comes about because
ordinary, honest persons determine whether a person's act is dishonest by
reference to that person's knowledge or belief as to some fact relevant to the
act in question or the intention with which the act was done. They do not ask
whether he or she must be taken to have realised that the act was dishonest
by the standards of ordinary, honest persons. Thus, for example, the ordinary
person considers it dishonest to assert as true something that is known to be
false. And the ordinary person does so simply because the person making the
statement knows it to be false, not because he or she must be taken to have
realised that it was dishonest by the current standards of ordinary, honest
persons.
41 At [28]-[29], and then later at [33]-[34], their Honours explained how the issue
of dishonesty arises in the context of a conspiracy to defraud and how that
issue should be dealt with in a jury trial:
[28] As in other contexts, the question whether the agreed means are
dishonest is, at least in the first instance, a question of knowledge, belief or
21
MFI 181 par 736.
22
(1998) 192 CLR 493; [1998] HCA 7.
23
[1982] EWCA Crim 2; [1982] QB 1053 per McHugh at par 79.
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intent and, clearly, that is a question of fact for the jury. On the other hand, the
question whether, given some particular knowledge, belief or intent, those
means are dishonest is simply a question of characterisation. And as in other
contexts, the question whether an act done with some particular knowledge,
belief or intent is properly characterised as dishonest is usually not in issue.
Thus, putting to one side the exceptional case where it is in issue, it is
sufficient for a trial judge simply to instruct the jury that they must be satisfied
beyond reasonable doubt as to the knowledge, belief or intent alleged by the
prosecution before they can convict. Alternatively, the trial judge may instruct
the jury that, if satisfied as to the knowledge, belief or intent alleged, the
means in question are properly characterised as dishonest and they should so
find.
[29] Because of the view expressed by McHugh J and Gummow J in this case,
we should indicate that we incline to the view that should an issue arise
whether the agreed means are properly characterised as dishonest, that issue
should be left to the jury. At least, that is so if the means are capable of being
so characterised. And the jury should be instructed that the question whether
they are to be characterised as dishonest is to be determined by application of
the standards of ordinary, decent people. However, these issues need not be
pursued in this case.
…
[33] As already explained, "dishonesty" does not appear in the statute
establishing the offence of conspiracy to defraud the Commonwealth. But
when properly analysed, the offence of conspiracy to defraud involves
dishonesty at two levels. First, it involves an agreement to use dishonest
means. Ordinarily, the means will be dishonest if they assert as true something
which is false and which is known to be false or not believed to be true or if
they are means which the conspirators know they have no right to use or do
not believe that they have any right to use the means in question. And quite
apart from the use of dishonest means, the offence involves an agreement to
bring about a situation prejudicing or imperilling existing legal rights or
interests of others. That, too, is dishonest by ordinary standards. If those
matters are properly explained to a jury, further direction that the accused
must have acted dishonestly is superfluous. Conversely, if those matters are
not properly explained, a direction that the jury must be satisfied that the
conspirators were dishonest is unlikely to cure the defect.
[34] It need hardly be said again that a statute establishing an offence may use
the term "dishonestly" in its ordinary meaning or use it in a special sense. In
either case it will ordinarily be necessary for the trial judge to explain precisely
what the legislation requires. In the case of conspiracy to defraud, it will
ordinarily be sufficient to instruct the jury as to the facts they must find if the
agreed means are to be characterised as dishonest. Alternatively, it will be
sufficient to instruct them that, if satisfied as to those facts, they will be
satisfied that the agreed means were dishonest. Only in the borderline case
will it be necessary for the question whether the means are to be so
characterised to be left to the jury. In this area, but only in this area, we differ
from the approach taken by McHugh J and Gummow J.
42 The approach taken by McHugh J (with whom Gummow J agreed) was not
entirely coincident with the approach taken by Toohey and Gaudron JJ. It was,
however, otherwise concordant with the proposition that proof of a deliberate
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design on the part of conspirators charged with conspiracy to defraud by using

dishonest means to achieve their object, whilst essential to proving the offence,
does not equate with an obligation on the part of the Crown to prove that the
conspirators must know they were acting dishonestly, whether that is judged by
their own subjective standards or their knowledge of the standards of ordinary
people.24
43 Consistent with the analysis at [15] in the joint judgment of Toohey and
Gaudron JJ in Peters v The Queen, the Crown submitted that it would be
incongruous to impose upon the Crown in this trial the obligation of proving that
the accused were aware that the contemplated acts of misconduct were, or
would be, assessed by a tribunal assessing their guilt as being so serious as to
merit criminal punishment.
The submissions of the accused

44 The accused submitted that the Crown has fatally misconceived the case it
seeks to prosecute by failing to allege in the indictment that the conspirators
agreed and intended that Mr Macdonald would misconduct himself in such a
way that would be sufficiently serious to merit criminal punishment. They
submitted it is a fundamental misconception of the case brought against them
that the Crown does not undertake the obligation of proving that they were
each aware of, or knew that, the contemplated misconduct would be of that
scope or character.
45 The accused submitted that it is not to the point that what they described as the
final element of the substantive offence of misconduct in public office does not
have a mental element, in the sense that the jury (or a judge in a judge-alone
trial) does not enquire whether a person charged with that offence knew or
believed or was reckless as to whether the act of misconduct committed by
them was so serious as to warrant criminal punishment. The accused
submitted that it remains a fundamental and uncontroversial feature of a
conspiracy to commit a common law offence, that an accused know and intend
each of the facts that make the act or acts unlawful, since it is that state of
24
Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 at [79].
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mind which is the source of the moral culpability comprehended by the crime of
conspiracy.25
46 The accused submitted that this Court, and appellate courts in other
jurisdictions, have consistently described the requirement that proven
misconduct is serious and meriting criminal punishment as an element of the
substantive offence of misconduct in public office, and that the Crown has cited
no authority for what Mr Neil described in his submissions as the Crown’s
“novel contention”26 that the seriousness of the misconduct is not an element of
the substantive offence “in the technical sense”.27 Mr Neil observed that that
contention was advanced by the Crown for the sole purpose of supporting the
correctness of its analysis that the seriousness of the misconduct it was agreed
that Mr Macdonald would commit is not a feature or factor which makes the
agreement unlawful, but rather that it “sits outside” the agreement that is the
subject of the conspiracy charged.
The authorities
47 An authoritative analysis of the elements of the substantive offence of

misconduct in public office commences with R v Quach,28 a decision of the
Victorian Court of Appeal in 2010. After considering the analysis by Sir Anthony
Mason NJP in a decision of the Hong Kong Court of Final Appeal, 29 Redlich JA
(Ashley JA and Hansen AJA concurring) identified what his Honour described
as the elements of the substantive offence of misconduct in public office in the
following way:
(1) a public official;

(2) in the course of or connected to his public office;
(3) wilfully misconduct 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 and meriting criminal punishment
having regard to the responsibilities of the office and the officeholder, the
25
See the analysis of Spigelman CJ in R v RK and LK (2008) 73 NSWLR 80; [2008] NSWCCA 338 at [55],
confirmed as an accurate statement of the law by the High Court in The Queen v LK ; The Queen v RK (2010)
241 CLR 177; [2010] HCA 17 at [114] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
26
MFI 192 par 42.
27
MFI 181 par 727.
28
R v Quach (2010) 27 VR 310; [2010] VSCA 106 at [46] and following.
29
Shum Kwok Sher v HKSAR [2002] 3 HKC 117; (2002) 5 HKCFAR 381 at [79] and following.
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importance of the public objects which they serve and the nature and extent of
the departure from those objects.
48 Importantly, in identifying what Redlich JA described as the final element, his
Honour rejected the analysis of Lord Widgery CJ in R v Dytham 30 proposed by
the appellant, to the effect that the element of culpability in the commission of
the offence must be of such a degree that the impugned misconduct was
“calculated” to injure the public interest so as to call for condemnation and
punishment for that reason, and it is that feature of the so-called “element of
culpability” which should impose upon the prosecution the obligation of proving
that the accused’s conduct was so calculated.
49 In rejecting that analysis, Redlich JA shared the views expressed by Mason

NJP in Shum Kwok Sher v HKSAR at [76] that the remarks of Lord Widgery CJ
upon which reliance was placed, when read in context, concerned a concept of
culpability, not in the sense of incorporating it into the mental element of the
offence, but as embracing two different considerations: first, the absence of
reasonable excuse or justification for the misconduct; and, second, that the
conduct complained of must not simply amount to corrupt conduct or dishonest
conduct, but must be of a sufficiently serious nature to warrant criminal
punishment.31
50 At [86], Mason NJP went on to describe the second concept of culpability as a

“qualification” attaching to the elements of the offence which he had identified
at [84] as:
(a) A public official;

(b) who in the course of or in relation to his public office;
(c) wilfully and intentionally;
(d) culpably misconducts himself.
51 At [86]-[87], that qualification was further described:
The second qualification which I attach to the elements of the offence stated in
the previous paragraph is that the misconduct complained of must be serious
misconduct. Whether it is serious misconduct in this context is to be
30
[1979] QB 722 at 727-728.
31
In Shum Kwok Sher v HKSAR [2002] 3 HKC 117; (2002) 5 HKCFAR 381 Mason NJP at [83] addressed the
mental element required to constitute commission of the offence of misconduct in public office as a wilful or
intentional act of misconduct accompanied by an improper motive, whether that be dishonest, corrupt or
malicious.
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determined 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.
Although this qualification is not made in the earlier cases, it underlies the
concluding observations of Lord Widgery CJ in R v Dytham. The qualification
is consistent with the concept of abuse of office and it is appropriate that the
offence should be so qualified in the light of the creation of a range of
disciplinary offences that now apply in the case of public sector employees.
The qualification is not to be taken as a dividing line between the offence of
misconduct in public office and disciplinary offences. There is no doubt a
borderland in which the common law offence and disciplinary offences overlap.
52 In Obeid v R (2015),32 having expressly adopted the elements of the offence
identified in Quach (which it was noted followed a review of the Australian,
Canadian, English and Hong Kong decisions), the Court made the following
remarks about the so-called fifth or final element of the substantive offence of
misconduct in public office:
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, which reflects
what has been said in R v Dytham [1979] 1 QB 722 at 727-728, Question of
Law Reserved (No 2 of 1996) (1996) 67 SASR 63 at 78-79, by Mason NPJ in
Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at 409-410 and by the
Court of Appeal in Attorney General’s Reference (No 3 of 2003) at [56]. These
authorities were considered in R v Quach at [42]-[45]. Far from leaving the
boundaries of the offence “entirely at large”, it is a necessary condition that the
misconduct has 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. In an
appeal in which many points were taken, there was no objection taken to the
fact that the qualitative assessment required by the fifth element rendered the
offence uncertain.
53 That passage was then quoted with approval by Bathurst CJ in Obeid v R
(2017)33 at [221].34
54 In that appeal, one of the grounds advanced by the appellant concerned the
so-called fifth or final element of the common law offence of misconduct in
public office, the contention being that the trial judge had wrongly directed the
jury in respect of the need for the jury to be satisfied of the seriousness of the
misconduct before returning a verdict of guilty.
32
91 NSWLR 226; [2015] NSWCCA 309.
33
(2017) 96 NSWLR 155; [2017] NSWCCA 221.
34
The other members of the Court agreed: see [291] (Leeming JA); [336] (RA Hulme J); [470] (Hamill J); [474]
(N Adams J).
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55 The written direction given to the jury by the trial judge mirrored the articulation
of the final element of the offence of misconduct in public office identified in
Quach. In elaborating upon his written directions, the trial judge’s oral
directions to the jury included the following:
… The misconduct must be worthy of condemnation and punishment. The

misconduct must be so serious that it amounts to an abuse of the public's trust
in the office holder. It can be distinguished from less serious forms of
misconduct by a public officer, specifically in the case of a Member of the
Legislative Council [MLC], it can be distinguished from other misconduct for
which civil proceedings might be brought if say the State has suffered some
loss from this conduct or say an MLC has profited from his actions.
The misconduct that constitutes this offence can also be distinguished from
misconduct from which the appropriate sanction might only be censure by
Members of Parliament or only by the exercise of a judgment by the electorate
at the next election. As I said the threshold is a high one. It requires an
objective assessment by you that the conduct is worthy of condemnation of
[[sic]] criminal punishment.
As the written directions indicate to address this element you must have
regard to the responsibilities of the office and office holder, the importance of
the public objects which they serve and the nature and extent of the departure
from those objects.
…
In relation to the public objects which the office of MLC serves you recall I
outlined the place that MLCs occupy in the structure of government in this
State. Members of the Legislative Council and the Legislative Assembly are an
essential part of the structure of democratic Government. The necessity for
them to act in the manner I have stated is self-evidently required to promote
that form of government. Serious departures from that duty can undermine the
public's confidence that Members of Parliament are representing their interests
and those of the electorate and in turn they can undermine the integrity of
parliamentary democracy.
56 On appeal, the appellant submitted the direction to the jury was wrong in law
because it omitted two essential elements: (i) that the misconduct must be so
far below acceptable standards as to amount to an abuse of the public’s trust in
the officeholder; and (ii) that it must have the effect of harming the public
interest.35
57 Neither of those submissions found favour with the Court.36
35
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [201] and following.
36
Bathurst CJ rejected this ground of appeal at [235], with others members of the Court agreeing. See Obeid v
R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [291] (Leeming JA); [336] (R A Hulme J); [470] (Hamill J); [474]
(N Adams J).
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58 What is important for present purposes is not only the detailed analysis of
authorities in other jurisdictions which informed the Court’s rejection of this
ground of appeal, but the fact that, although at [222] Bathurst CJ implicitly
emphasised that the seriousness of the misconduct and an assessment as to
whether or not it merited criminal punishment operated as a limiting feature of
the offence, at [223]-[234] his Honour consistently referred to the correct or
appropriate formulation of a direction to the jury concerning the seriousness of
the misconduct as comprising an element of the offence.
59 In adopting that nomenclature, it is clear that his Honour followed the decision
of this Court in Obeid v R (2015),37 and the decisions in other jurisdictions
which both preceded and followed that decision where the formulation of the
final element as a constituent component of the offence has been considered.
Determination of the controversy as to the “final element” of the substantive

offence of misconduct in public office in a conspiracy to commit that offence
60 Unsurprisingly, in the course of identifying what needs to be proved beyond

reasonable doubt for the substantive offence of misconduct in public office to
be made out, this Court, as with courts in other common law jurisdictions, has
applied the conventional legal analysis of identifying the constituent elements
of the offence. In the absence of any binding or persuasive authority, I do not
treat those same constituent elements or preconditions to proof of the
substantive offence of misconduct in public office as determinative of what a
party to a conspiracy that a public official commit misconduct in public office
needs to know or intend in order that a conviction for a conspiracy to commit
that offence is legally available.
61 I have come to that conclusion, not by reference to the what the Crown
submitted was the analysis in Peters as to how the issue of dishonesty is to be
treated where a conspiracy to defraud is alleged, as to which I am satisfied no
useful parallels can be drawn, but instead by an analysis of what I am satisfied
are facts each of the accused had to know in order to make the agreement to
commit an unlawful act into which they are each alleged to have intentionally
entered.
37
(2015) 91 NSWLR 226; [2015] NSWCCA 309.
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62 R v Freeman38 (a case to which Mr Neil referred in his submissions in the

course of challenging the indictment) is instructive.
63 Freeman was concerned with a charge of conspiracy to pervert the course of

justice where, as Street CJ observed, the conspiracy was not constituted by an
agreement to commit an unlawful act, but an agreement to achieve a result by
unlawful means, namely the corruption of the bail process by an agreement
that an accused would use his own money as security for release to bail. The
significance of Freeman, for present purposes, is as an additional source of
authority for the proposition that a person’s criminal liability for conspiracy is
not one of absolute or strict liability.39 The Crown must also prove that those
who are participants in the conspiracy intend that the legal elements which
comprise the conduct contemplated by the agreement will be agreed to in the
knowledge that it is those facts which render that conduct illegal.
64 Freeman is also authority for another proposition which reflects an

uncontroversial statement of the law that the common law offence of
conspiracy is complete upon the making of an agreement. The additional
proposition is that in proving the relevant intention which constitutes the mens
rea of the offence of conspiracy (in this trial the intentional participation by each
of the accused in an unlawful agreement that Mr Macdonald would commit
misconduct in public office) the focus must be on the state of mind of the
accused at the time the agreement was forged. As Street CJ said at 309, albeit
in the context of a conspiracy to pervert the course of justice (the offence
charged against Ms Freeman), it is “not relevant to look ahead and
contemplate that unlawfulness or irregularity may have become apparent when
one or more of the parties to the agreement was or were actually confronted
with the bail documents or when their true purport was explained by the bail
justice”. Similarly in this case, the Crown must prove that the parties to the
conspiracy intended that the unlawful conduct the subject of their agreement
would be committed by one of them, namely by Mr Macdonald as the only
conspirator who had the capacity to commit that offence, but that all parties to
38
(1985) 3 NSWLR 303.
39
This was the position taken by the trial judge in R v Freeman following R v Porter [1910] 1 KB 369. That
position was held by the Court of Criminal Appeal in Freeman to be erroneous at 310.
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the agreement (including Mr Macdonald) agreed that he should carry out their
common design by doing things with the shared knowledge or belief that what
they agreed that he should do would constitute a criminal offence.
65 The question, as I see it, is what did each of the accused need to know (or
appreciate or understand) in order that what they agreed that Mr Macdonald
would do in connection with the granting of an EL at Mount Penny concerning
Edward Obeid and/or Moses Obeid’s interests and/or those of their family
and/or associates would, in fact, constitute misconduct in the public office Mr
Macdonald occupied as Minister for Mineral Resources in order to render them
liable to conviction for the conspiracy charged?
66 I am satisfied, and direct myself accordingly, that the accused needed to know
and intend that Mr Macdonald would:
(i) as a public official;

(ii) in the course of, or connected to, his public office;
(iii) commit misconduct by:
(a) intentionally doing acts in connection with the granting
of an EL at Mount Penny in New South Wales;
(b) with the improper purpose of benefitting Edward Obeid

and/or Moses Obeid and/or their family members and/or
associates;
and that he would
(iv) commit the misconduct set out at (iii) above wilfully, that is
knowing that he was acting in breach of:
(a) his duties and obligations of impartiality as a Minister
in the Executive Government of the State of New South
Wales; and/or
(b) his duties and obligations of confidentiality as a

Minister in the Executive Government of the State of New
South Wales;
(v) without reasonable excuse or justification.
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67 In relation to elements (i) and (ii), there was no issue between the parties that,
at all times relevant to the events comprehended by the conspiracy, in the
Office Mr Macdonald held as a Minister in the Executive Government of the
State of New South Wales, he was a public official.40
68 It is also essential for the Crown to establish as a fact that the Ministerial duties
and obligations of impartiality and confidentiality it was agreed that Mr
Macdonald would breach would be breached in the course of or in relation to
the public office he held as the Minister for Mineral Resources. That is, the
Crown must establish that what each of the accused agreed that Mr Macdonald
would do by agreeing he would wilfully misconduct himself by breaching his
duties of impartiality and/or confidentiality, in connection with the granting of an
EL at Mount Penny for the improper purpose alleged, would be causally linked
to the office he held as Minister for Mineral Resources. Although each of the
accused contended that the Crown had failed to prove any relevant breach of
those duties, in the event that a wilful breach of either or both Mr Macdonald’s
duties of confidentiality or impartiality was established, it was accepted the
necessary causal link was proved.
69 As to elements (iii), (iv) and (v), the Crown is obliged to prove (and I direct
myself accordingly) that each of the accused knew and intended that Mr
Macdonald would wilfully (that is, knowingly and deliberately) misconduct
himself in the Office he held as Minister for Mineral Resources in connection
with the granting of an EL at Mount Penny, and for the improper purpose
alleged, because they each knew that by Mr Macdonald agreeing to act in that
way he agreed he would breach his obligations and duties as a Minister without
reasonable excuse or justification.
70 The Crown’s obligation to prove elements (iii), (iv) and (v) beyond reasonable
doubt is fundamental to proving the guilt of each of the accused.
40
The King v Boston (1923) 33 CLR 386; [1923] HCA 59; noting that the majority of the High Court held that the
functions and duties of a Member of Parliament meant he or she was a public office holder. The essence of the
majority decision was that, quoting Williams J in Faulkner v Upper Boddington Overseers (1857) 3 CB(NS) 412
at 420, a Member of Parliament has “duties to perform which would constitute in law an office” and that su ch
duties were those “appertaining to the position he fills, a position of no transient or temporary existence, a
position forming a recognised place in the constitutional machinery of government” (at 402).
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Unsurprisingly, proof of those elements was the focus in the way the trial was
conducted and the focus of closing arguments.
71 The Crown is not obliged, however, to prove that the accused knew or intended
that the acts of wilful misconduct it was agreed Mr Macdonald would commit
were of such seriousness that criminal punishment was warranted. That is a
question that arises only if I am persuaded the Crown has established (i)-(v)
above.
Is the conspiracy charged an offence known to the law?

72 Reasonably anticipating a challenge from each of the accused that the
conspiracy charged on the indictment is not an offence known to law, the
Crown submitted that a common law conspiracy to commit the common law
offence of misconduct in public office is an offence known to law. The Crown
also submitted that the indictment upon which the accused were arraigned
does not otherwise suffer from any legal deficiency such as might attract
directed verdicts of not guilty.
73 In their closing submissions, each of the accused submitted that the indictment
is defective in failing to disclose an offence known to law and that verdicts of
not guilty should be returned for that reason.41
74 Were I persuaded that the indictment fails to disclose an offence known to law,
it follows that there will be no need to deal with a question raised by me during
the course of closing arguments as to whether verdicts of guilty might be
returned were I to conclude that a conspiracy of the same scope and object as
that alleged in the indictment is established by the evidence, and that the other
elements essential to proof of the conspiracy charged are proved beyond
reasonable doubt, but that the underlying agreement was forged or came into
existence later than 9 May 2008, the date on which, on the Crown case, the
first act of misconduct was committed and the date by which, again on the
Crown case, the agreement must have been in existence. In the event that I
decline to direct verdicts of not guilty, it will be necessary to return to consider
that question.
41
MFI 190 par 7; MFI 191 pp 1-6; MFI 192 p 17 and following.
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Is the failure to allege an “improper purpose” fatal to the indictment?

75 Ms Francis commenced her closing submissions by emphasising the statement
of principle in the decision of Bathurst CJ in Maitland v R; Macdonald v R,42 to
the effect that where the offence of misconduct in public office is alleged, the
line that distinguishes administrative fault from criminal liability must be clearly
drawn. Ms Francis submitted that, as a consequence of the way the Crown has
conducted its case in this trial, that line has not and cannot be drawn.
76 In developing her submission that the indictment fails to disclose an offence

known to law, Ms Francis emphasised that fundamental to proof of the
substantive offence of misconduct in public office is the proposition that the
power or function exercised by the public official must be shown to have been
exercised for a purpose foreign to the purpose for which the power or function
was conferred.43
77 She submitted that it was on that analysis that Maitland v R; Macdonald v R is

now binding authority for the proposition that in proving the substantive offence
of misconduct in public office, the Crown is obliged to prove, as a component of
the mental element of that offence, that “but for” the improper or illegitimate
purpose for which the power, function or duty was performed in the particular
case, the acts of misconduct would not have been committed. Ms Francis
submitted that it follows that where a conspiracy to commit misconduct in
public office is alleged, the Crown must prove that at the time the agreement is
forged, the parties to that agreement must both know and intend that the public
official will conduct themselves for an illegitimate or improper purpose, that is,
for a power or function foreign to the purpose for which the particular power or
function was conferred.
78 That being so, she submitted that the Crown was obliged to frame the
conspiracy charged in the indictment so as to identify, in plain language, the
improper purpose it alleges as the defining feature of the agreement that Mr
Macdonald would misconduct himself in the public office he held as Minister for
Mineral Resources. Ms Francis submitted that the indictment, as framed, is
defective because it does not allege that defining or fundamental feature. She
42
(2019) 99 NSWLR 376; [2019] NSWCCA 32 at [88].
43
MFI 191 par 6.
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submitted that the Crown’s failure to identify, in express and clear terms, the
improper purpose comprehended by the object of the conspiracy alleged, and
the shared intention of the accused that the improper purpose be achieved,
has resulted in an indictment that does not allege a conspiracy at law.
79 Ms Francis acknowledged that in its closing written submissions, the Crown

accepted that in order to prove the conspiracy alleged, it must prove beyond
reasonable doubt that each of the accused knew or intended, inter alia, that Mr
Macdonald would commit misconduct by doing acts in connection with the
granting of an EL at Mount Penny with the improper purpose of benefiting them
and/or their family members and/or their associates.44 However, that does not
address what Ms Francis maintained was a fundamental defect in the framing
of the indictment.
80 Ms Francis emphasised that the function of an indictment is to state with

sufficient clarity the offence charged so as to define the issues for decision45
and to clearly identify the case an accused is to meet.46 The function served by
the Crown particularising its case where a conspiracy is charged is to identify
the overt acts of an accused referable to which the Crown seeks to prove both
the existence of the conspiracy and participation of an individual accused in
that conspiracy. Ms Francis submitted that the indictment is the formal
statement of the charge and that the Crown cannot perfect an imperfect or
defective indictment by serving a statement of particulars.
81 I do not accept the submission that the indictment upon which the accused
were ultimately arraigned was defective by failing to specify or allege, in
sufficiently clear language, that the improper or illegitimate misuse of Mr
Macdonald’s power, duty or function as Minister for Mineral Resources in
connection with the granting of an EL at Mount Penny was to benefit or favour
the private interests of the accused and/or their family members and/or
associates. It is not to the point that the indictment might have been framed
differently or that it took a number of redrafts at the commencement of the trial
before the indictment upon which the accused were ultimately arraigned was
44
MFI 181 par 10.
45
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 at 286.
46
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42.
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presented. I am satisfied that the indictment, as ultimately framed, alleges a

single agreement to which it was alleged all three accused were party that Mr
Macdonald would commit an unlawful act, namely, that he would misconduct
himself in the course of or connected to his public office as Minister for Mineral
Resources by acting, without reasonable cause or justification and in wilful
breach of his Ministerial duties of impartiality and/or confidentiality, in
connection with the granting of an EL at Mount Penny concerning the interests
of Edward Obeid and/or Moses Obeid and/or members of the Obeid family
and/or their associates.
82 Framed in that way, I am satisfied that the improper purpose that renders what
it was agreed Mr Macdonald would do in connection with the granting of an EL
at Mount Penny as unlawful, is inherent in what the Crown alleges was the
agreement to which Edward Obeid and Moses Obeid are alleged to have been
party, namely that Mr Macdonald would wilfully breach his Ministerial duties of
impartiality and confidentiality concerning the interests of a discrete class of
people, including Edward Obeid and/or Moses Obeid and/or their family and/or
associates, in connection with the power or function of the Office he held as
Minister for Mineral Resources, namely in connection with the granting of an
EL at Mount Penny.
83 It is a question of evidence as to whether, in proving its case against all three

accused, the Crown can prove that “but for” Mr Macdonald favouring the
private interests of that cohort of people (or some of them) he would not have
acted in the way he agreed to act, that is, were it not for that improper purpose
he would not have misconducted himself in connection with the granting of an
EL at Mount Penny by breaching his duty of impartiality in his dealings with the
Department of Primary Industries (the DPI, the Department) in May and June
2008 (the first, second and fifth acts of misconduct, as particularised) and by
breaching his duty of confidentiality and/or his duty of impartiality in his
dealings with his co-accused (the fourth and the sixth to ninth acts of
misconduct, as particularised).
84 In rejecting Ms Francis’ submission, I note that in Maitland v R; Macdonald v R,

where the Court of Criminal Appeal held that the “but for” test of improper
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purpose was essential to proof of the mental element of the substantive

offence of misconduct in public office, it was not suggested by the appellants
that the indictment was defective by failing to allege (or even specify) the
improper purpose which the Crown alleged was the reason the relevant power
was exercised.
In that trial, Mr Macdonald was charged on an indictment with two counts of

wilful misconduct in public office in identical terms as follows. Notably, in
neither count is an “improper purpose” or the “improper purpose” alleged or
identified:
1. On or about 21 August 2008 in Sydney in the State of New South Wales,

then holding public office as Minister for Mineral Resources did in the course
of and connected to his public office wilfully misconduct himself by granting
Doyles Creek Mining Pty Ltd consent to apply for an exploration licence under
the Mining Act 1992, without reasonable cause or justification, where such
misconduct is serious and meriting criminal punishment 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 objects.
3. On or about 15 December 2008 in Sydney in the State of New South Wales,
then holding public office as Minister for Mineral Resources did in the course
of and connected to his public office wilfully misconduct himself by granting to
Doyles Creek Mining Pty Ltd Exploration Licence No. 7270 under the Mining
Act 1992, without reasonable cause or justification, where such misconduct is
serious and meriting criminal punishment 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 objects.
85 The Court held that the trial judge had misdirected the jury as to what
constituted the mental element for misconduct. The trial judge directed that the
Crown was obliged to prove beyond reasonable doubt that Mr Macdonald was
“substantially motivated” by the desire to confer a benefit (namely, the granting
of consent to apply for an EL) on a private individual and a private entity and
not, to “any significant degree”, by the object of furthering the interests of the
State of New South Wales. The Court held that the trial judge should have
directed the jury that the Crown was obliged to prove that the power exercised
by Mr Macdonald by granting an EL to Doyles Creek Mining P/L would not
have been exercised except for the illegitimate purpose of conferring that
benefit. It is this element of the substantive offence of misconduct in public
office that has since been referred to as the “but for” test. It is a test that needs
to be satisfied in this case by the Crown proving that each of the accused
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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.
86 Further, in seeking to prove the existence of the conspiracy by inference from

what the Crown alleges were Mr Macdonald’s eight successive acts of
misconduct as particularised,47 the Crown accepted the obligation of proving
(albeit not to the criminal standard) that each of those individual acts of
misconduct would not have been committed by Mr Macdonald were it not for
the improper purpose of benefiting the private interests of the accused and/or
their family and/or their associates.
Does the failure to specify acts of misconduct, or how they might be

committed, render the indictment defective?
87 Both Ms Francis and Mr Neil submitted that the indictment is also defective by
failing to nominate or identify the acts of misconduct which the Crown alleges
each of the accused Edward Obeid and Moses Obeid intended Mr Macdonald
would commit pursuant to the agreement that he would misconduct himself in
the office he held as Minister in connection with the granting of an EL at Mount
Penny. Counsel’s submissions on that issue were similar but nonetheless
sufficiently different to warrant separate consideration.
88 Mr Martin made the different submission that the scope of the misconduct
alleged against Mr Macdonald in the indictment is “unduly expansive” and, for
that reason, the Crown cannot prove that an agreement was reached which
should attract criminal sanction.48 This submission, while on one analysis, a
challenge to the sufficiency of the indictment as a matter of law seems also to
suggest that because the agreement was “unduly expansive” I would not be
persuaded, as a matter of fact, that it was so serious as to merit criminal
punishment. As to the latter question, it will only arise in the event I am
satisfied the conspiracy is proved and that Mr Macdonald’s participation in that
conspiracy is proved. Otherwise, I consider Mr Martin’s challenge to the
indictment as “unduly expansive” is a variation on Ms Francis’ submission that
47
The Crown abandoned the third act of misconduct during the course of the trial. The remaining eight acts of
misconduct (one, two and four to nine) retained their original numbering. See par 877.
48
MFI 190 par 20.
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the indictment is defective for lack of specificity as to the acts of misconduct i t

was agreed Mr Macdonald would commit.
89 Ms Francis submitted the indictment fails to conform with the common law
requirement that the essential factual ingredients of an offence charged on
indictment be identified. In her submission, in the context of this trial, that
obliged the Crown to allege sufficient of the facts which would make what was
agreed between the accused an agreement to commit an unlawful act. She
submitted there can be no meeting of the minds where the conspiracy framed
in this indictment fails to identify what is to be done pursuant to the agreement
alleged, and fails to identify the nature of the benefit that the accused
contemplated they would receive when the object of the agreement is
achieved.49 She submitted that the framing of a count of conspiracy in the
terms alleged in the indictment in this trial by failing to identify the criminal
liability that attaches to the conspiratorial arrangement is so reductive as to be
meaningless at law.50 By way of further elaboration, referring back to the
statement of principle emerging from the observations of Bathurst CJ in
Maitland v R; Macdonald v R, Ms Francis submitted that the agreement alleged
in the indictment fails to “draw the line”51 between administrative fault and
criminal culpability.
90 Ms Francis developed that submission further by advancing the argument that

the “high level agreement”52 that the Crown has at all times sought to
prosecute (that is, an agreement that had as its object that Mr Macdonald
would commit misconduct in public office, but an agreement where the
accused did not and could not have known at the time they entered into the
agreement the particular acts of misconduct that Mr Macdonald would commit
in its execution)53 cannot, as a matter of law, constitute an agreement to
commit the offence of misconduct in public office. Ms Francis submitted it is
foundational to a conspiracy at common law that an accused know of the
existence of facts which would make the conduct agreed to an offence as a
49
MFI 191 p 5.
50
MFI 191 par 31.
51
MFI 191 par 32.
52
MFI 191 par 43.
53
T 3663.
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matter of law,54 and that an accused has that knowledge at that time the
agreement is reached.
91 Ms Francis cited a number of cases in support of that proposition. 55 The

correctness of those cases cannot be doubted.
92 In The Queen v LK; The Queen v RK 56 at [117] in the joint judgment of

Gummow, Hayne, Crennan, Kiefel and Bell JJ, that principle was expressed in
the following way. Although their Honours were concerned with the offence of
conspiracy under s 11.5 of the Criminal Code (Cth), as their Honours make
clear in the following passage, liability for the offence of conspiracy under the
common law is no different to liability for the statutory offence of conspiracy:
[117] The offence of conspiracy under the Code is confined to agreements that
an offence be committed. A person who conspires with another to commit an
offence is guilty of conspiring to commit that offence. It was incumbent on the
prosecution to prove that LK and RK intentionally entered an agreement to
commit the offence that it averred was the subject of the conspiracy. This
required proof that each meant to enter into an agreement to commit that
offence. As a matter of ordinary English it may be thought that a person
does not agree to commit an offence without knowledge of, or belief in,
the existence of the facts that make the conduct that is the subject of the
agreement an offence (as distinct from having knowledge of, or belief in,
the legal characterisation of the conduct). This is consistent with
authority with respect to liability for the offence of conspiracy under the
common law. Subject to one reservation, it is how the fault element of the
offence created in s 11.5(1) operates.
(Emphasis added and footnotes omitted.)
93 Ms Francis submitted that statement of principle should be extended to
encompass a legal requirement that a party to a conspiracy must know of the
existence of all and any facts necessary to make the conduct criminal.
Authority for that proposition was said to source from R v Barbouttis (1995) 37
NSWLR 256; R v Schipanski (1989) 17 NSWLR 618; Pereira v DPP (1989) 82
ALR 217; [1988] HCA 57 and Bennett v R (1998) 144 FLR 311.
54
Cf. knowledge or belief that those facts constitute a criminal offence (see Giorgianni v The Queen (1985) 15 6
CLR 473; [1985] HCA 29 at 506).
55
Standen v R (2015) 253 A Crim R 301; [2015] NSWCCA 211 at [409]; Quaid v R (2011) 210 A Crim R 374;
[2011] WASCA 141 at [92] and [174] per Buss JA; The Queen v LK; The Queen v RK (2010) 241 CLR 177; [2010]
HCA 17 at [72] per French CJ and [117] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
56
(2010) 241 CLR 177; [2010] HCA 17.
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94 Mr Neil relied upon the same statement of principle in advancing the

submission57 that the conspiracy the Crown has elected to prosecute, where
the misconduct the subject of the agreement is comprised in Mr Macdonald
agreeing to do acts in connection with the granting of an EL at Mount Penny,
but not an agreement to commit a specified unlawful act, is expressed at such
a high level of abstraction as to allege a “general subject matter within which
an unlawful act might potentially be found”58 but not an unlawful act the
commission of which has been agreed to. For that reason alone, Mr Neil
submitted the indictment fails to allege an unlawful act sufficient at law to
constitute a criminal conspiracy to commit that act.
95 Mr Neil submitted that it is not to the point that the Crown, in defence of framing
the indictment as it was ultimately presented, relied upon the proposition for
which the South Australian case of Aston v R 59 is authority, namely, that a
person can be a willing conspirator (in that case to a fraudulent scheme
knowing the scheme is fraudulent) but have no knowledge as to the manner in
which the scheme was to be implemented, or knowledge of any of the essential
steps that might be taken leading to its successful implementation.
96 I do not regard the case of Aston as decisive.
97 Aston concerned a charge of conspiracy to defraud the Commonwealth, an

offence where the subject of the agreement was the intentional use of
dishonest means to obtain an advantage for the accused by putting another
person’s property at risk. In that case, the act identified in the indictment as the
subject of the agreement was that various named people “conspired together”
with other named people to defraud the Commonwealth in a particular way,
namely:
… by arranging fictitious commodity futures trading losses through Southern

Cross Commodities Pty Ltd such losses being capable of inclusion as to
investment losses in income tax returns and intended to be so used whereby
the Commonwealth would have been deprived of income tax properly payable
to it.60
57
MFI 192 par 82.
58
MFI 192 par 91.
59
(1987) 26 A Crim R 128.
60
Aston v R (1987) 26 A Crim R 128 at p 129.
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98 With the indictment in Aston framed with that level of particularity, it is, to my
mind, hardly surprising that the Court took the view that there was no obligation
on the Crown to prove in that case that the appellant/conspirator knew that
fictitious documents were being used as part of a fraudulent scheme to which
they were a party. The Court reasoned in the following way at 132:
Mr Borick complained that it was insufficient for the learned trial judge to direct
the jury that there must be an understanding on the part of the appellants that
their involvement was part of a larger scheme; he argued that there was an
onus on the Crown to prove that the two appellants knew the bare essentials
of the scheme; specifically, he said that the Crown should have been required
to prove that the appellants knew that fictitious documents were being used as
part of the scheme. This cannot possibly be the case; a person can be a
willing conspirator in a fraudulent scheme, well knowing that the scheme is
fraudulent, but having no idea of the manner in which it is implemented — not
knowing any of the essential steps leading up to its implementation. If a person
knows that a scheme is fraudulent and, nevertheless, participates in it, then he
is as much guilty of the conspiracy to defraud as is the mastermind of the
scheme. For example, if an accused person knows that a particular plan will
enable a taxpayer (with apparent justification) to claim a deduction against his
assessable income, and the accused knows that that deduction is or will be
false — even though he does not know the details of the falsity or the means
by which the falsehood was contrived — he can, if he appropriately
participates in the plan, be guilty of conspiracy. In those circumstances it
matters not whether the false deduction was contrived by use of false
documents or by some other means: the actual method of operation is of no
significance.
99 To the extent that passage is of persuasive guidance on the question whether
the conspiracy charged in this case is sufficiently clear and unambiguous to
constitute an offence known to law, it might be adapted and expressed in the
following way: if either of Moses Obeid and Edward Obeid knew that what Mr
Macdonald agreed to do in connection with the granting of an EL at Mount
Penny concerning their interests would constitute a deliberate breach of his
Ministerial duties and obligations of impartiality and confidentiality, and if they
each knew that “but for” the improper purpose of benefitting either or both of
them (and/or their family members and/or associates) Mr Macdonald would not
have agreed to act in that way and, further, that with that knowledge they each
intentionally entered into that agreement, then they are criminally liable as co-
conspirators in a conspiracy that Mr Macdonald would commit misconduct in
public office, irrespective of whether they knew of the precise steps Mr
Macdonald would ultimately take to implement the agreement, and irrespective
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of whether, at the time the agreement was forged, they agreed that he should
take those particular steps.
100 The resolution of the question raised by Mr Neil and Ms Francis is also usefully
informed by three cases to which Mr Neil referred in his submissions.61
Although those cases were cited as authority for the proposition that the
offence of conspiracy is not committed merely by an accused talking about the
possibility of committing some wrongful act or having an intention to agree that
an unlawful act might be committed, in O’Brien the Court also emphasised that,
unless the alleged conspirators reached the stage where they have agreed to
commit that unlawful act, if it lies in their power, merely discussing the
possibility of committing the unlawful act will not be sufficient to amount to a
conspiracy at law. In that case, the question was whether the trial judge had
adequately directed the jury that to convict the accused of a conspiracy to
affect the escape of persons from prison, it needed to be satisfied that the only
inference to be drawn from the primary fact of the accused taking pictures of
the prison wall, and travelling some distance to the prison to do so, was that he
had agreed with others to affect a prison break, as distinct from having had
discussions with others to that end and taking preliminary steps to achieving it.
101 Again by analogy to this case, the question is whether the indictment, as
framed, alleges a completed agreement where what is alleged is that Mr
Macdonald will commit misconduct in the future by doing acts in connection
with the granting of an EL at Mount Penny and where it is implicit that he will
act in that way when the opportunity presents itself for him to do so without the
need for further agreement as to what acts he would commit and when he
should commit them.
102 In Mills (cited and discussed in O’Brien) Lord Parker CJ observed,

authoritatively in my view, that even where an agreement has been reached “to
do something if it is possible or propitious to do it”:
… if the matters left outstanding and reserved are of a sufficiently substantial

nature, it may well be that the case will fall on the other side of the fence [that
61
R v Mills (1963) 47 Cr App R 49; Trudgeon v R (1988) 39 A Crim R 252; R v O’Brien (1974) 59 Cr App R 222.
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an agreement cannot be regarded as having been formed] and … that the

matter is merely a matter of negotiation.62
103 The authorities discussed above guide the resolution of the challenges to the
indictment raised by the accused by giving rise to the following questions.
104 Is there uncertainty or ambiguity as to what the accused are alleged to have
agreed is the unlawful act that they agreed should be committed because:63
(a) the object of the agreement was expressed at a level of

generalisation or abstraction; or
(b) the language used to identify the unlawful act averred in the
indictment as the object of the conspiracy is vague or
nonspecific; or
(c) what was agreed upon was expressly or impliedly conditional as
distinct from the manner of its performance; or
(d) because of the existence of facts which make it uncertain
whether the conduct the subject of the agreement is unlawful?
105 I am not satisfied that the way in which the indictment has been framed in this
case admits of any defects of that kind. The indictment identifies the unlawful
act as the offence of misconduct in public office. The indictment also makes it
clear that the accused agreed that Mr Macdonald would commit that offence by
doing acts in his capacity as Minister for Mineral Resources and in connection
with the granting of an EL at Mount Penny concerning the interests of a
discrete class of people, including the accused, in wilful breach of his
Ministerial duties and obligations of impartiality and/or confidentiality. Although
the Crown expressly disavowed any case that at the time the agreement was
forged the accused (including Mr Macdonald) knew or could have known how
or by what manner he would commit that offence, I am satisfied that what each
of the accused is alleged to have agreed that Mr Macdonald would do (as the
indictment is framed) is not so vague, ambiguous or uncertain as to undermine
the legal sufficiency of the indictment to charge a common law conspiracy to
commit misconduct in public office.
106 Mr Neil advanced the submission that the Crown’s express disavowal that the
accused knew or could have known of the precise nature, or even the details of
how Mr Macdonald would ultimately commit acts of misconduct in connection
62
R v Mills (1963) 47 Cr App R 49 at 54-55.
63
The Queen v LK; The Queen v RK (2010) 241 CLR 177; [2010] HCA 17 at [117].
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with granting an EL at Mount Penny concerning the interests of the accused

and others at the time the agreement was forged, is also fatal to the Crown
case. I am not persuaded of that submission or his further submission that
without agreement as to what Mr Macdonald would do in that regard there
could be no agreement to commit an unlawful act to which transactional details
might later attach.
107 Mr Neil submitted the only possible construction of the agreement the subject
of the conspiracy charged is that an agreement might crystallise at some time
in the future once the details of what might be done in connection with the
granting of an EL at Mount Penny were settled allowing the accused, at that
time, to agree as to how Mr Macdonald would commit the offence of
misconduct in public office for the improper purpose of benefitting them and
others. To the contrary. In my view, the indictment does allege that the
accused “conspired together” (that is, that they agreed that) Mr Macdonald
would commit misconduct in public office in a specific way and to achieve an
identifiable objective, namely, by doing acts in connection with granting an EL
at Mount Penny concerning the interests Edward Obeid and/or Moses Obeid
and others in wilful breach of his Ministerial duties and obligations of
confidentiality and/or impartiality. At the time that agreement was reached (on
the Crown case, at the latest by 9 May 2008), what remained to be determined
was how the object of that agreement would be achieved in the transactional
phase of the execution of the conspiracy. Those arrangements depended in
large part, if not exclusively, on the unfolding course of Mr Macdonald’s
dealings after 9 May 2008 with the DPI, the DPI with responsibility for the
management of coal reserves in New South Wales, including what resulted
from his specific dealings with the DPI in relation to its identification of a new
coal release area at or near Mount Penny over which an EL might be granted,
and his dealings with the Department thereafter resulting in the inclusion of the
new Mount Penny Coal Release Area in an Expression of Interest (EOI)
process for the grant of an EL.
108 That state of affairs did not render the forging of an agreement contingent on
those steps being taken. Neither was it contingent on any further agreement as
to how the object of their agreement might be achieved.
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109 The indictment in this trial is to be contrasted with cases where it is obvious
from the evidence adduced in the Crown case that the parties to an alleged
conspiracy have not progressed their arrangements beyond negotiations or
discussions about committing an unlawful act, or where it is clear, for other
reasons, that there is no meeting of the minds as to the actual unlawful act to
be committed. The indictment in this trial is also to be contrasted with cases
where there is merely an expectation that one or other of the conspirators will
be likely to commit an unlawful act without it being agreed that should occur. 64
110 Mr Neil further submitted that the high level of abstraction in the way the Crown
framed its case, including that there was no agreement that Mr Macdonald
would do anything in particular in connection with the granting of an EL at
Mount Penny, and that the indictment does not allege that Edward Obeid or
Moses Obeid agreed to do anything at all, raises the further question as to how
an agreement framed in that way could have been reached on the evidence
the Crown adduced at the trial. That submission, together with other
submissions which are focused on deficiencies in the evidence and the
Crown’s failure to exclude a number of reasonable hypotheses consistent with
innocence, must await an analysis of the evidence.
111 Accordingly, and for those reasons, I decline to direct verdicts of not guilty.
Is the use of the conjunction “and/or” in the indictment fatal?
112 Ms Francis submitted that there is a legal defect in the indictment inherent in
the allegation that the accused conspired together that Mr Macdonald would
knowingly breach his duties and obligations of impartiality and/or his duties and
obligations of confidentiality. She advanced that submission using the following
analogy: if one or more people agreed to rob a bank and contemplate the use
of a gun, or a gun and a knife or simply a knife there is no conspiracy to
commit the offence of robbery with a dangerous weapon. What is essential to
proof of a conspiracy to commit that offence is that the parties to the
agreement agreed and intended that a gun, simpliciter, would be used. 65
64
Trudgeon v R (1988) 39 A Crim R 252.
65
“Dangerous weapon” is defined in s 4 of the Crimes Act 1900 (NSW) as: (a) a firearm, or an imitation firearm,
or (b) a prohibited weapon, or (c) a spear gun.
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113 That analysis is sound. It does not, however, follow by analogy that in this case
there can be no conspiracy to commit the common law offence of misconduct
in public office if the Crown proves that Mr Macdonald only acted knowingly in
breach of his duty of confidentiality in connection with the granting of an EL at
Mount Penny or if it proves that Mr Macdonald only acted knowingly in breach
of his duty of impartiality. I understand the use of the conjunction “and/or” in the
indictment to connote that what was contemplated by the agreement into which
each of the accused intentionally entered, was that Mr Macdonald would
misconduct himself as Minister for Mineral Resources by knowingly breaching
either or both of those Ministerial duties and obligations when acting in
connection with the granting of an EL at Mount Penny concerning the interests
of Edward Obeid and/or Moses Obeid and/or their family and/or associates.
114 In his closing submissions, Mr Neil also addressed the use of the conjunction
“and/or” in the indictment. Mr Neil submitted (as did Ms Francis) that the Crown
case must fail because the indictment alleges that the misconduct it was
agreed Mr Macdonald would commit was cast in the alternative, being a breach
of his duty of impartiality and/or duties and obligations of confidentiality. He
submitted that this was fatal to the Crown case not because the breach of Mr
Macdonald’s Ministerial duties and obligations is cast in the alternative per se,
but because of the way in which the Crown seeks to prove its case.
115 In Mr Neil’s submission,66 there is nothing that can be demonstrated on the

evidence to have been said or done by Mr Macdonald that could, as a matter of
law, amount to a breach of any duty of confidentiality by which Mr Macdonald
was bound as the responsible Minister under the Mining Act 1992 (NSW) (the
Mining Act) (and in that capacity the embodiment of the State of New South
Wales in the execution and administration of the Mining Act), in circumstances
where the particular confidential information said by the Crown to have been
provided or communicated as an act of wilful misconduct67 was provided to him
by the DPI in his capacity as Minister for Mineral Resources. Mr Neil submitted
that the Crown has conflated a duty of confidentiality (which in his submission
66
MFI 192 p 36.
67
The fourth and the sixth to ninth acts of misconduct as particularised. I note again that the Crown
abandoned the third act of misconduct during the course of the trial. The remaining acts of miscond uct (one,
two and four to nine) retained their original numbering.
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the Crown has failed to identify with sufficient particularity in the circumstances
of this case) with a duty not to use information for an improper purpose (which
he concedes does exist).
116 Mr Neil submitted that even if Mr Macdonald was bound by a duty of

impartiality (which was not conceded), where the unlawful agreement the
Crown sought to prosecute contemplated by the “and/or” construction a breach
of confidentiality simpliciter (which Mr Neil submitted would not in law amount
to an unlawful act, or at least not the unlawful act the subject of the conspiracy
charged) then the Crown case must fail.
117 The question whether the Crown has established that Mr Macdonald in fact
wilfully breached the duty of confidentiality imposed upon him at law in what he
did from time to time in connection with the granting of an EL at Mount Penny
(that is, the conduct particularised as five of the eight acts of misconduct 68
alleged to have been committed in furtherance of the conspiracy and, in that
way, to prove, by inference, the existence of the conspiracy alleged) must
await the detailed consideration which follows later in this judgment as to what
is comprehended by a duty of confidentiality by which a Minister of the Crown
is bound and by which Mr Macdonald was bound as Minister for Mineral
Resources. Similarly, whether a Minister’s duty of impartiality is recognised at
law and its scope and terms are such that a breach of it might ground an
allegation of wilful misconduct must also await further consideration. 69
118 On the remaining question raised by Mr Neil as to whether the framing of the
indictment by use of the conjunction “and/or” is fatal to the integrity of the
indictment, I apply the same analysis to the submission advanced by Ms
Francis. I am not satisfied that framing the indictment in that way has produced
the result that no offence known to law is disclosed. I refer later to the fact that
each of the acts of misconduct numbered four and six to nine inclusive, in the
way the Crown has particularised its case, allege a breach of both Mr
Macdonald’s duties of impartiality and confidentiality. I also discuss at that time
the impact of that formulation on the question whether all or any of those five
68
The first, second and fifth acts of misconduct do not allege a breach of Mr Macdonald’s duty of
confidentiality. They are particularised to an allegation he breached his duty of impartiality.
69
These questions are dealt with at pars 281-290.
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acts of misconduct are established on the evidence the Crown relied upon to
prove that fact.
119 I also note that there is a discrepancy between the indictment and the Crown’s
Revised Statement of Particulars 70 as to the precise way in which the breaches
of the relevant Ministerial duties are said to have been committed. In the
indictment, it was alleged that the accused agreed Mr Macdonald would wilfully
misconduct himself knowingly in breach of his duties of confidentiality and/or
impartiality. On that construction, the acts committed in furtherance will be
proved where a breach of confidentiality, or a breach of impartiality, or
breaches of both duties, are established. However, in the Revised Statement of
Particulars, the fourth and sixth to ninth acts of misconduct are said to have
been committed in breach of Mr Macdonald’s duties and obligations of
confidentiality and impartiality. In my view, nothing turns on that inconsistency.
I do not regard the Revised Statement of Particulars as obligating the Crown to
prove that each of those acts of misconduct constituted a breach of Mr
Macdonald’s duties of both confidentiality and impartiality, in the sense that
those acts of misconduct will not be proved unless a breach of both
confidentiality and impartiality is proved. I regard it as sufficient that a breach of
one or other of Mr Macdonald’s duties of confidentiality or impartiality is proved
to have been breached in the commission of those of the acts of misconduct
alleged to have been committed in breach of both duties.
Mr Neil’s additional challenges to the indictment: Does the Crown have to

allege that Edward Obeid and Moses Obeid agreed to do anything to further
the object of the agreement?
120 Mr Neil advanced a number of further submissions in support of the proposition
that there are fundamental defects in the indictment which ought to attract
directed verdicts of not guilty.
121 He submitted that Moses Obeid cannot be liable as a matter of law (or mixed
fact and law) as a party to the conspiracy alleged where the Crown does not
allege, either in the way the indictment is framed or in the way it puts its case,
that when he entered into the agreement (on the Crown case on a date no later
than 9 May 2008) he agreed to do anything in furtherance of the conspiracy.
70
MFI 134/1.
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122 As the Crown framed the charge, Moses Obeid (and Edward Obeid) agreed
that Mr Macdonald would act unlawfully, namely by misconducting himself in
public office in connection with the granting of an EL at Mount Penny
concerning the interests of the accused and/or others, without that agreement
comprehending or even contemplating that either of Edward Obeid or Moses
Obeid would do anything to achieve or advance that shared objective. Mr Neil
further submitted that it is no part of the Crown case that Moses Obeid asked
Mr Macdonald whether he was prepared to commit acts of misconduct as the
Minister for Mineral Resources, or that he induced Mr Macdonald to do so or
that he agreed, knew and intended that Edward Obeid would do so.71 Mr Neil
submitted that the only submission advanced by the Crown was that Moses
Obeid allegedly sought to take commercial advantage of information he
received from Mr Macdonald in the months that followed the forging of the
agreement (on the Crown case no later than 9 May 2008), despite the Crown
disavowing any reliance upon that being something Moses Obeid agreed he
would do upon entering into the agreement to the knowledge of his co-
conspirators.
123 In support of the proposition that to be a party to the conspiracy a person must
either “agree to do something” in the sense of agreeing to co-operate in a
specified way or ways to achieve the shared objective that an unlawful act be
committed, or that an alleged conspirator at least “intend to play some part in
the agreed course of conduct in furtherance of the criminal purpose which the
agreed course of conduct was intended to achieve,” Mr Neil relied upon the
Canadian authority McNamara72 and a decision of the House of Lords in
Anderson.73
124 Without seeking to distinguish or qualify the way in which both the Ontario
Court of Appeal in Canada and the House of Lords in England elaborated upon
the concept of membership of a conspiracy in the cases to which Mr Neil
referred, in my view, there needs to be caution in applying them to the way in
which the Crown frames the conspiracy in this trial. For my part, I do not regard
71
MFI 192 p 29.
72
R v McNamara (No 1) (1981) 56 CCC (2d) 193 at 452-453.
73
R v Anderson [1986] AC 27 at 39.
5KIPGFD[#WUV.++
either case as authority for the proposition that it is a legal prerequisite to

charging a conspiracy that there is agreement that each of the conspirators will
act in a particular way or that, as a matter of law, before a person can be found
to be a party to a conspiracy they must agree to play a particular part or intend
to play a particular part in achieving a common objective. I accept that mere
knowledge of planned criminal conduct or discussion about it, including passive
acquiescence in the outcome is not sufficient to render a person criminally
complicit in a conspiracy. What does have to be proved to attract criminal
liability as a conspirator is that each alleged conspirator must intentionally
agree that the unlawful act will be committed.74
125 I accept that in many conspiracy trials, those who are alleged to be party to an
agreement to commit an unlawful act usually have demonstrated and
designated roles and functions which reflect their agreement to participate in
the conspiracy charged. I also accept that conduct is usually relied upon as
evidence from which to infer an anterior agreement with each other and a
mutual intention to achieve the unlawful object which is suggested by the
totality of their conduct. That is not, however, always the case.
126 I have no doubt that the following facts and circumstances which I have crafted
are sufficient to constitute a common law conspiracy to murder. A and B are
leaders of rival criminal organisations. Their businesses are located in New
South Wales. C is the leader of a third rival criminal organisation also operating
in New South Wales. C is overseas at the time A and B meet in New South
Wales to discuss having C killed. A and B know a person who works at the
international airport. They pay her a bribe to notify one or other of them when C
passes through the customs barrier on his return to New South Wales. They
give the customs official no information at all as to why they want to be notified
of that fact. A and B subsequently engage D to commit the murder and each of
A, B and D agree that D will carry out that agreement. A and B make it clear to
D they have no interest at all in knowing how the murder will occur or when it
will occur, they simply agree with him and each other that D should carry out
the murder when he next hears from them, and that he should take whatever
steps are necessary to achieve their common objective. Upon A receiving a
74
See Trudgeon v R (1988) 39 A Crim R 252 per Lee CJ at CL at 262 and 263.
5KIPGFD[#WUV.++
phone call from the person who works at the international airport that C has
returned to the jurisdiction, A notifies D that he should murder C when the
opportunity best presents.
127 On those facts, while there is a conspiracy between A, B and D to commit

murder, there is no settled agreement as to how that should be done, or when
and where it should be done. In addition, there is nothing that A and/or B
agreed to do to achieve that shared objective other than one of them would
instruct D to wait for a phone call before seeking C out in order to kill him.
128 By analogy, I am satisfied that there is no legal deficiency in the framing of the
indictment or the way in which the Crown put its case in this trial by the Crown
neither alleging nor seeking to prove that Moses Obeid or Edward Obeid
agreed, when the conspiracy was forged, that they would play some particular
part in achieving the objective they shared with Mr Macdonald that he would
commit misconduct in the office he held as the Minister for Mineral Resources
in connection with the granting of an EL at Mount Penny. Neither is there any
legal deficiency in the indictment by the absence of an allegation that they
agreed to cooperate with him and each other in particular ways to achieve that
common objective.
129 In the result, I am satisfied that it is open to the Crown to prove that each of the
accused intentionally entered into an agreement with each other that Mr
Macdonald would commit misconduct in public office by doing acts in
connection with the granting of an EL at Mount Penny concerning either or both
of their interests and/or the interests of their family members and/or associates
in wilful breach of his Ministerial duties and obligations, without the need to
prove, as a matter of law, that the agreement contemplated, much less
required, that either Moses Obeid or Edward Obeid agreed to do anything to
achieve that common objective.
130 It is, of course, an entirely separate question whether the Crown can prove the
existence of a conspiracy of that scope and object beyond reasonable doubt,
as it is whether the Crown can prove beyond reasonable doubt that Edward
Obeid and/or Moses Obeid intentionally entered into that specific agreement
with Mr Macdonald as a matter of inference from the evidence of what the
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Crown contends is their active participation in the conspiracy in the course of it

being executed.75
Is the indictment defective because of the identity of the conspirators: the

relevance of The King v Boston
131 Mr Neil submitted that the Crown is unable to cite any authority that would
support the laying of a conspiracy charge against a private individual (in this
instance both Moses Obeid and Edward Obeid) where that person is alleged to
have conspired with a public official that the public official would misconduct
themselves in public office, without the private individual agreeing to participate
in the conspiracy by playing some specific part in achieving the object of the
conspiracy.
132 The only authority referred to by the Crown in closing submissions relevant to
that issue was The King v Boston.76 The Crown referred to Boston as a case
which, while not alleging a conspiracy to commit misconduct in public office per
se,77 concerned conduct which had that criminal complexion.
133 In Boston it was alleged that three men had unlawfully conspired together, and
with other persons unknown, that two of them should corruptly give large sums
of money to the third man, in his official capacity as a Member of the
Legislative Assembly of New South Wales, to induce him to put pressure on
the Minister of Lands and other Officers of the Crown to inspect and pay cash
for certain properties from public funds.
134 The argument with which the High Court was concerned was whether the
agreement, effectively to bribe a member of Parliament to induce him to use
his position exclusively for purposes outside of Parliament and not for the
benefit of the public, could amount to a criminal offence. In dealing with that
argument Knox CJ said at 392:
Assuming, without deciding, that the construction put on the words of the
information is correct, I do not agree that an agreement such as that indicated
would not amount to a criminal offence.
75
See MFI 134/1 pars 8 and 11.
76
(1923) 33 CLR 386; [1923] HCA 59.
77
T 3706.
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135 Both the Crown and Mr Neil cited the passage from Boston extracted above,
albeit for different purposes.
136 The Crown cited the extracted passage in support of the submission that,
although obiter dictum, it serves to define the boundaries of misconduct in
public office. In the Crown’s submission, this informs the proper approach to
distinguishing between what the Crown described as “characterisations and
conclusions of law” and considerations of “knowledge” and “intent”, 78 a
submission advanced principally in support of the proposition that the
quantitative assessment of the seriousness of misconduct such as to merit
criminal punishment, as a feature or aspect of the substantive offence of
misconduct in public office, is not a matter imported into a conspiracy to that
offence.79 For the reasons already given, I have determined that question in
favour of the Crown’s construction of the indictment. I did not find any support
for the construction I reached in the passage quoted from Boston above. I
observed at the time the case was cited by the Crown that I did not see the
obiter remarks of Knox CJ as helpful in resolving that question. I remain of that
view.80
137 Mr Neil relied upon Boston as demonstrating what he contended was “missing”
from the conspiracy alleged by the Crown, namely the absence of any
allegation that either Moses Obeid or Edward Obeid agreed to do anything at
the time the agreement was made, an omission which he submitted was fatal
to the Crown case. Mr Neil submitted that despite the caution that needs to be
exercised in relying on Boston in support of the submission that the Crown
case is defective (given that a conspiracy to affect a public mischief, the effect
of the offence charged in Boston, is no longer considered to be an offence
known to the common law), the point of distinction between the liability of
private individuals and public officials remains sound. He emphasised that in
Boston the conspiracy charged was for two individuals (Harrison and
Mitchelmore), neither of whom were public officials, to pay a bribe to a public
78
T 3707.
79
T 3707.
80
It is worthy of note that in R v Freeman (1985) 3 NSWLR 303, Street CJ at 307 (Foster and McInerney JJ
agreeing) observed that none of the other members of the Court in Boston commented on the views of the
Knox CJ and they did not form a central part of the matters falling for decision.
5KIPGFD[#WUV.++
official (Boston) and for Boston to accept the bribe in violation of his duties. As
Mr Neil pointed out, quite apart from the question whether a private individual
can ever conspire with a public official for the public official to breach their
duties, the private individuals in Boston agreed to participate in Boston’s
misconduct by paying him the bribe. In this trial the Crown does not allege that
Edward Obeid or Moses Obeid agreed to do anything as participants in the
conspiracy, let alone incentivise Mr Macdonald’s participation by the payment
of a bribe or even the promise of a corrupt reward. Neither is it alleged that the
fundamental fact underpinning the misconduct alleged in this case, namely that
at all relevant times Mr Macdonald knew of the Obeid family’s ownership of a
rural property (Cherrydale Park) located in the Bylong Valley near Mount
Penny, was information provided by Moses Obeid, or that the provision of that
information to Mr Macdonald by Edward Obeid was an act in furtherance of the
conspiracy.
138 For the reasons given, I am not persuaded that the indictment is defective for
failing to specify or identify of what Edward Obeid and Moses Obeid agreed
they would or might do (if anything) by intentionally agreeing to participate in
the agreement that Mr Macdonald would wilfully commit misconduct in the
public office he held as Minister for Mineral Resources. Neither am I satisfied
that, because they are private individuals,81 they could not, as a matter of law,
conspire with Mr Macdonald that he would commit misconduct as a public
official.
What is encompassed by the concept of acts (of misconduct) in connection

with the granting of an EL at Mount Penny?
139 Finally, Mr Neil advanced the submission that the Crown case must fail
because the Crown has not established that the eight particularised acts of
misconduct alleged to have been committed by Mr Macdonald in furtherance of
the conspiracy, from which the existence of the conspiracy is said to be
inferred, were acts he committed in connection with the granting of an EL at
Mount Penny.
81
During the currency of the conspiracy, Edward Obeid was a Member of the Legislative Council of New South
Wales (Exhibit G p 3). It formed no part of the Crown case that Edward Obeid misconducted himself, or
conspired to misconduct himself, in that capacity.
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140 In contrast to the other complaints raised by Mr Neil in respect of the

indictment, that submission was not advanced in support of what Mr Neil
submitted was a defect or deficiency in the indictment, but rather because of
the fundamental deficiency in the body of evidence adduced by the Crown to
prove a particular aspect of the offence preferred on the indictment, that is, that
the acts alleged to have been committed by Mr Macdonald were in connection
with the granting of an EL at Mount Penny. It is, however, convenient to
address it now in order to dispose of it.
141 Mr Neil cited Nye v State of New South Wales82 and Xu v Minister For
Immigration and Multicultural Affairs 83 in support of that proposition.
142 In Nye at [16], O’Keefe J attributed the following meaning to the words “in
connection with”:
The phrase “in connection with” and similar phrases are also of wide ambit.
However, whilst such phrases are wide in their ambit they are also
imprecise. Australian National Railways Commission v Collector of Customs
(SA) (1985) 69 ALR 367. It has been said to be:
“…capable of describing a spectrum of relationships ranging from the
direct and immediate to the tenuous and remote” (Collector of Customs
v Pozzolanic Enterprises Limited (1993) 115 ALR 1 at 10)
Where the connective phrase fits in this wide spectrum will, as in the case of
its counterpart “relating to”, depend on the context in which it is used and this
in turn will involve a value judgment by the court.
143 Mr Neil emphasised that although O’Keefe J endorsed a construction of the
words “in connection with” being of “wide ambit”, the meaning to be attributed
to them is necessarily contingent on the “context” in which the phrase is used.
144 In Xu at [20], Whitlam and Gyles JJ acknowledged the width of the phrase “in
connection with” in reasoning to the conclusion that the “procedures”
contemplated in Division 5 of Migration Act 1958 (Cth) are not “in connection
with the decision” the subject of the appeal, but rather “in connection with the
promulgation of the reasons for the decision” (emphasis added), noting further
at [26] that there is “a difference in substance between these concepts”.
145 In reliance on those authorities, Mr Neil submitted there is an obvious and

substantial difference between the concepts of putting together and initiating an
82
(2002) 134 A Crim R 245; [2002] NSWSC 1268.
83
(1999) 95 FCR 425; [1999] FCA 1741.
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EOI process where a mining company is invited by the DPI to lodge an

application for the grant of an EL and a process that is “in connection with the
granting of an exploration licence”.84 In Mr Neil’s submission, the evidence in
the Crown case revealed that the EOI process under which eleven small to
medium coal release areas, including Mount Penny, were under consideration
for the grant of an EL did not, and could not have, led inevitably to the granting
of an EL to a coal mining company at Mount Penny, any more than that
process could have led to the granting of an EL over any of those eleven
areas. He submitted that being the case, the Crown could not rationally
contend that what Mr Macdonald agreed to do in misconducting himself as
Minister was in connection with the granting of an EL at Mount Penny.
146 I do not accept Mr Neil’s analysis.
147 I do not read the authorities Mr Neil relied upon as supporting the submission
that in this trial there is a “complete, clear and substantial difference”85 between
the EOI process at the conclusion of which an EL may be granted and acts in
connection with the granting of an EL at Mount Penny.
148 It was common ground at the trial that by inviting a limited number of
companies to submit expressions of interest in respect of eleven small to
medium coal release areas, including Mount Penny, the DPI could not know
that any companies would accept that invitation (although I am prepared to find
that there was a high probability that would be the case). I also accept that the
EOI process may not have generated a single EOI in respect of the grant of an
EL at Mount Penny. Similarly, the EOI process did not guarantee the
Evaluation Committee appointed by the DPI would conclude, after their
independent review of the applications lodged in accordance with the EOI
Information Package and the Guidelines for Allocation of Future Coal
Exploration Areas (Coal Allocation Guidelines),86 that there was a preferred
applicant referable to the selection criteria (and, preliminary to that finding, that
a company had fulfilled the necessary selection criteria) such that the
Evaluation Committee might issue a Ministerial Recommendation that Mr
84
T 3910.
85
T 3910.
86
See later at par 703.
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Macdonald should invite that company to formally apply for an EL at Mount

Penny or that he would ultimately grant that EL.
149 In Mr Neil’s submission, with that level of contingency the prospective granting
of any EL at Mount Penny was “wholly remote” from the conspiracy the Crown
prosecuted which, on the Crown case, was forged on or before 9 May 2008
and which alleged an agreement that Mr Macdonald would misconduct himself
in connection with the granting of an EL at Mount Penny.87
150 Mr Neil further submitted that it was not enough for the Crown to prove that
when the agreement was reached, the accused knew of the possibility or the
desirability or even the potentiality of an EL at Mount Penny being granted
such that they agreed that Mr Macdonald would misconduct himself in
connection with the granting of that EL. Rather, he submitted the Crown was
required to establish, and beyond reasonable doubt, that there would be a
grant of an EL at Mount Penny and that EL would be granted, and that Moses
Obeid (and Edward Obeid) had that knowledge as a fact fundamental to either
or both of them agreeing that Mr Macdonald would misconduct himself as
Minister in connection with the granting of that EL.88 In the alternate, Mr Neil
submitted that, at the very least, the Crown is obliged to establish that Moses
Obeid (and Edward Obeid) knew that Mr Macdonald would in fact grant an EL
at Mount Penny.89
151 In Mr Neil’s submission, the Crown failed to establish its case on either basis.
To the contrary; he submitted that in the Crown’s closing submissions the
misconduct alleged against Mr Macdonald was wedded to the EOI process
(cf. the granting of the EL at the end of that process), a position exemplified by
the proposition he attributed to the Crown that “what Mr Macdonald was in
substance doing was setting up an EOI process that was to include Mount
Penny and that that process was in some way to concern the interests of the
Obeids beneficially” and that Mr Macdonald had “slipped” Mount Penny into the
EOI process.90
87
T 3885.
88
MFI 192 p 82.
89
T 3909.
90
T 3909.
5KIPGFD[#WUV.++
152 In my view, based largely on the evidence given by a number of DPI witnesses,
in particular Mr Mullard in his capacity as Director of the Coal and Petroleum
Development Group within the DPI, and the procedural precedent set by the
granting of the Caroona and Watermark under Minister Macdonald, both of
which were preceded by EOI processes,91 I am satisfied the acts alleged to
have been committed by Mr Macdonald preliminary to and during the course of
the EOI process in respect of the eleven small and medium coal release areas
are sufficiently close and material to be captured within the ambit of the words
“in connection with the granting of an EL at Mount Penny”.
153 There may have been more force in Mr Neil’s submission were the indictment
to have alleged an agreement that Mr Macdonald would commit acts of
misconduct “in connection with the grant of an EL at Mount Penny”. However, I
am not satisfied that by alleging an agreement that Mr Macdonald would
wilfully misconduct himself “in connection with the granting of an EL at Mount
Penny” the indictment necessarily contemplates, or presupposes, the actual
grant of an EL at Mount Penny.
154 As to the state of knowledge the Crown is obliged to establish the accused had
when the conspiratorial agreement was reached, I am satisfied, and direct
myself accordingly, that it is sufficient that each of the accused had the hope or
expectation that an EL might be granted over land at Mount Penny that
included land owned or controlled by them. That is, it is not necessary for the
Crown to prove actual knowledge on the part of each of the accused that the
EL would in fact issue and that Mr Macdonald would, as the relevant Minister,
be the person to grant it, having agreed with his co-conspirators that he would
commit acts of misconduct in connection with the granting of an EL at Mount
Penny.
155 I am satisfied, and direct myself accordingly, that I do need to be satisfied that
at the time the agreement between each of the conspirators was forged (on the
Crown case no later than 9 May 2008), they each knew and intended that Mr
Macdonald would wilfully misconduct himself as Minister for Mineral
Resources, by intentionally doing acts in connection with the granting of an EL
91
Exhibit G.
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at Mount Penny, for the improper purpose of benefiting Edward Obeid and/or
Moses Obeid and/or their family members and/or associates. That is, I need to
be satisfied that they each knew and intended that “but for” that improper
purpose Mr Macdonald would not have agreed to do the thing he agreed to do
and in the manner alleged, that is, he would not have agreed to act in
connection with the granting of an EL at Mount Penny in wilful breach of his
Ministerial duties of confidentiality and/or impartiality.
The indictment is not defective: the elements of the offence charged as

restated
156 Having found the indictment discloses an offence known to law and that it is
not otherwise legally defective, in charging a conspiracy of the scope and
object alleged in the indictment, I direct myself that the Crown is obliged to
prove, to the criminal standard, that Mr Macdonald together with at least one of
the accused Edward Obeid or Moses Obeid intentionally entered into an
agreement with Mr Macdonald that:
(a) in the public office he occupied as Minister for Mineral Resources

in the Executive Government of the State of New South Wales;
and
(b) in the course of or connected with that public office;
(c) he would misconduct himself by doing acts in connection with the
granting of an EL at Mount Penny for the improper purpose of
benefiting Edward Obeid and/or Moses Obeid and/or members
of their family and/or their associates; and, further, that
(d) each of the accused knew and intended that by Mr Macdonald
agreeing to act in that way, he would be acting wilfully, that is
that he would act knowing that he was breaching the duties and
obligation of impartiality and confidentiality by which he was
bound as a Minister in the Executive Government of the State of
New South Wales; and
(e) that he would act in that way without reasonable excuse or
justification.
157 I also direct myself that in order to return verdicts of guilty against each of
Edward Obeid and Moses Obeid, the Crown also bears the burden of proving
beyond reasonable doubt that they knew that what Mr Macdonald agreed with
them he would do in the public office he occupied, and in the course of or
connected with that public office, would in fact constitute a breach his duties
and obligations of impartiality and/or confidentiality, and that each of them
5KIPGFD[#WUV.++
entered into the agreement with Mr Macdonald with that knowledge or

understanding.
158 Finally, having regard to my earlier ruling as concerns the final “element” of the
substantive offence of misconduct in public office, before a guilty verdict could
be returned against any of the accused on the indictment upon which they
were arraigned, I will also need to be satisfied that the nature of the acts of
misconduct it was agreed Mr Macdonald would commit (that is, the
(unspecified) acts of misconduct in connection with the granting of an EL at
Mount Penny) and for the improper purpose it was agreed those (unspecified)
acts would be directed to achieve (namely, to benefit the accused and/or their
family and/or their associates) are serious and meriting criminal punishment,
having regard to Mr Macdonald’s responsibilities as the Minister for Mineral
Resources in the Executive Government of New South Wales, the importance
of the public objects of that Office which he was obliged to serve as the holder
of that Office, and having regard to the nature and extent of the departure from
those objects as reflected in the conspiracy alleged.
159 Whether I am satisfied that the agreement into which the accused intentionally
entered was sufficiently serious that it merits criminal punishment for those
shown to be participants in that conspiracy, as a precondition to returning
verdicts of guilty against any of them, is a question which will only arise later in
this judgment after consideration has been given to the evidence relevant to
proof of the existence of the conspiracy and the participation of each of the
accused in it, and whether the evidence supports proof of both facts beyond
reasonable doubt.
The timeframe of the conspiracy alleged
160 The indictment is framed to allege the accused “conspired together” between
nominated, approximate dates, namely 1 September 2007 and 31 January
2009. This reflects the Crown case that by entering into an agreement of the
scope and object alleged, the accused must be taken to have appreciated that
the agreement (which was by its terms prospective) would continue until it was
fully executed, whether or not that ultimately resulted in an EL at Mount Penny
being granted and on such recommendations as may have been made by the
5KIPGFD[#WUV.++
Evaluation Committee after the EOI process, a state of affairs that developed
during the currency of the conspiracy.
161 In framing the indictment on a between dates basis, the Crown did not
nominate a date after 1 September 2007 when agreement was reached and
was not obliged to do so. However, as I have already noted, the Crown
conducted its case at trial on the firm and unerring basis that the agreement
was reached at some time prior to 9 May 2008 when, on the Crown case, Mr
Macdonald committed the first act of misconduct in furtherance of achieving the
object comprehended by the scope of the agreement and in accordance with
the terms of that agreement. That is a matter of significance.
162 In the way the Crown advanced its case at trial, each of the accused should be
taken to have understood that whilst ever their agreement that Mr Macdonald
would do acts in connection with the granting of an EL at Mount Penny for the
improper purpose alleged was in the process of execution, they would each do
things to further or enhance the achievement of their common objective, albeit,
at the time the agreement was forged, without any settled way of knowing what
that might entail or what might be required of any of them, including what
precise acts of misconduct Mr Macdonald would commit in furtherance of the
conspiracy and what each of Edward Obeid and Moses Obeid would do
responsive to what resulted from the acts of misconduct he committed.
163 Although, as I have already decided, the Crown was not obliged, as a matter of
law, to allege in the indictment that any one or more of the accused agreed to
do anything in particular to further or enhance the achievement of their
common objective, in this trial in proof of both the existence of the conspiracy
and the participation of each of the accused in that conspiracy, the Crown
adduced evidence of things said and done by each of the accused during the
currency of the conspiracy, as things said and done by them in furtherance of
achieving their common objective.
164 In its closing submissions,92 the Crown identified that evidence as falling into
two general categories:
92
MFI 181 p 5.
5KIPGFD[#WUV.++
(a) Evidence that Mr Macdonald (in fact) acted in accordance with

the conspiracy by causing a coal release area to be created near
Mount Penny in the Bylong Valley; causing the coal release area
to be included in an EOI process for the grant of an EL and by
providing confidential information to Edward Obeid and Moses
Obeid in connection with the granting of an EL at Mount Penny.
(b) Evidence of the efforts by members of the Obeid family to pursue
and secure a financial benefit from Mr Macdonald’s misconduct.
165 Insofar as concerns (b) above, the Crown relied, in particular, upon Moses
Obeid’s conduct both during the currency of the conspiracy and after it had
been fully executed as a discrete source of evidence in proof of the existence
of the conspiracy against all three accused and, as against Moses Obeid,
evidence of his participation in the conspiracy.93 In relying upon that discrete
body of evidence and for that purpose, the Crown made clear in its closing
submissions that none of Moses Obeid’s so-called entrepreneurial activities, at
least in so far as they involve his various contractual dealings with Monaro
Mining NL, which continued after the conspiracy had been executed, or his
dealings with Cascade Coal Pty Ltd (Cascade Coal P/L) which were
concentrated in the period after the conspiracy had been executed, were
activities pursued by him in furtherance of the conspiracy.94
166 In the Crown’s Revised Statement of Particulars, the overt acts/declarations

relied upon as evidence of the existence of the conspiracy and/or Moses
Obeid’s participation in it included the following:
On and from 23 June 2008, Mr Moses Obeid (and other members of the Obeid
family) sought to negotiate a joint venture with a mining company for the
purpose of an EOI application being made in respect of an exploration licence
over Mt Penny, including:
(i) negotiations via Gardner Brook and Andrew Kaidbay with Monaro
Mining NL; and
(ii) negotiations with Cascade Coal Pty Ltd.95
167 Given the Crown’s articulated position in closing submissions, I read down the
Crown’s deployment of the term “overt act and declaration” in the Revised
Statement of Particulars so as to distinguish between things said and done
93
This body of evidence was admitted over objection in the pre-trial phase (see R v Macdonald; R v Edward
Obeid; R v Moses Obeid (No 1) [2019] NSWSC 322).
94
T 3659.
95
MFI 134/1 par 11.
5KIPGFD[#WUV.++
from which the existence of the conspiracy and Moses Obeid’s participation in
it might be inferred and things said and done by him as “overt acts” in
furtherance of achieving the object of the conspiracy and, in that way, available
to the Crown in invocation of the co-conspirators rule in proving the
participation of either or both of Edward Obeid and Mr Macdonald (to the extent
that is necessary).
168 That approach reflects another segment of the Crown’s closing submissions
when the prosecutor said:96
HER HONOUR: It was not contemplated, nor the subject of any agreement
reached between the conspirators, as alleged, that Moses would go off and
forge a deal with the mining companies or be party to the execution of a
landowners' agreement that would be productive of a multiplier in land value.
The conspiratorial agreement just did not go that far.
CROWN PROSECUTOR CALLAN: Correct, your Honour. In the same way
that the Crown case is that at the time the conspiracy was forged didn't and
couldn't have known what would be the particular acts of misconduct that Mr
Macdonald would commit in furtherance of the conspiracy.
169 Were the Crown to fail to prove that Moses Obeid’s various commercial
dealings with Monaro Mining NL in 2008 and later with Cascade Coal P/L
extending beyond 31 January 2009 (both directly and through Mr Brook, an
investment banker who assisted Moses Obeid in brokering mining deals with
both of those companies) were based on the information generated by the
conspiracy to which he is alleged to have been a party, that body of evidence
will have no probative weight in proving the existence of the conspiracy or
Moses Obeid’s participation in it.
170 That is, if I am satisfied of the reasonable possibility that such information as
Moses Obeid had (and shared) with Mr Brook about the potential for a coal EL
to be granted over an area which included his family’s rural holdings in the
Bylong Valley, was information acquired other than through his participation in
the conspiracy, it will be of no probative value in proof of his guilt, for example
because of information his father, or even Mr Macdonald, shared with him
without any knowledge on his part that Mr Macdonald was wilfully breaching
his obligations of confidentiality and impartiality in so doing, or information he
acquired without having agreed that Mr Macdonald should breach his
96
T 3663.
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Ministerial duties and obligations of impartiality and confidentiality in the way

the Crown alleges.
The co-conspirators rule and the operation of s 87(1)(c) of the Evidence Act
171 The Crown relied upon evidence of the individual acts of each of the accused
which, on the Crown case, were clearly directed to further, advance or achieve
the object of the conspiracy, as providing the foundation for the invocation of
the common law co-conspirators rule,97 the operation of which is now reflected
in s 87(1)(c) of the Evidence Act 1995 (NSW),98 as an additional source of
evidence to prove the participation of each of the accused in the conspiracy
beyond reasonable doubt.
172 Section 87(1)(c) of the Evidence Act provides:
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—
...
(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.
173 The Crown submitted that in the context of a conspiracy trial, s 87(1)(c)
provides a statutory basis for the acts and declarations of an individual
accused to be admitted in proof of the participation of others alleged to be
complicit with the accused in the conspiracy alleged, if the Court is satisfied
there is reasonable independent evidence of that accused’s participation in the
conspiracy. Each of the accused submitted that the Crown had not established
a sufficient basis to invoke s 87(1)(c) in proof of its case against them.
174 Resolution of the question whether there is reasonable independent evidence

of the participation of any of the accused in the conspiracy alleged in this trial
so as to invoke the inclusionary rule in s 87(1)(c), necessarily awaits a
comprehensive review of the evidence both as to its sufficiency to prove a
conspiracy of the kind alleged and in order to assess whether the acts and
97
Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 at 95 and 100 citing Tripodi v The Queen (1961) 104
CLR 1; [1961] HCA 22.
98
R v Macraild (unreported, NSWCCA, 18 December 1997); Elomar v R [2014] NSWCCA 303 at [288]; R v
Dolding [2018] NSWCCA 127.
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declarations of an individual accused provide a basis for a further finding that

those acts and declarations constitute reasonable independent evidence of the
participation of that accused in the conspiracy so as to permit the acts and
declarations of each of the other two accused to be admitted against that
accused.
The Crown case as particularised

175 The particulars of the Crown’s case were originally served on the accused on
20 March 2019, and amended by a letter of 1 May 2019 99 (the 2019 Statement
of Particulars), following a request for further and better particulars by the legal
representatives of Moses Obeid by their letter of 19 March 2019.
176 On 20 October 2020, day 52 of the trial, the Crown served on each of the
accused a document titled “Particulars of Crown case as at 19 October
2020”.100 After objection was taken by each of the accused to what was said to
be the prejudice occasioned to each of them by the Crown amending its
particularised case late in the trial, the document served on 20 October 2020
was further revised. The further revised document is titled “Particulars of Crown
case as at 30 October 2020”.101 It was in the same general format as the
earlier iterations of that document with significant amendments.
177 For reasons provided in a separate judgment,102 I permitted the Crown to

amend the particulars of its case over opposition by each of the accused.
Those amendments are reflected in the document titled “Particulars of Crown
case as at 30 October 2020”103 (the Revised Statement of Particulars)
referrable to which the Crown put its case against each of the accused in its
closing submissions.
178 Consistent with the way the Crown particularised its case in the 2019
Statement of Particulars, the Revised Statement of Particulars alleged that
each of the accused became party to the conspiracy between September 2007
99
MFI 2 relevantly duplicates that letter.
100
MFI 134.
101
MFI 134/1.
102
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 14) [2020] NSWSC 1948.
103
MFI 134/1.
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and May 2008,104 and that they each participated in the conspiracy for the
entirety of the offence period alleged in the indictment, being between about 1
September 2007 and about 31 January 2009.105 Again consistent with the 2019
Statement of Particulars, the Revised Statement of Particulars nominated
various overt acts committed by each of the accused in furtherance of their
agreement that Mr Macdonald would wilfully misconduct himself in connection
with the granting of an EL at Mount Penny in New South Wales, for the
“improper purpose of advancing the interests of Edward Moses Obeid, Moses
Edward Obeid and/or their family members and/or associates”. 106
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.
104
MFI 134/1 pars 1, 6, 9.
105
MFI 134/1 pars 2, 7, 10.
106
MFI 134/1 par 4.
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The eight acts of misconduct, as particularised

181 The first two acts of misconduct alleged by the Crown to have been committed
by Mr Macdonald pursuant to the conspiracy and in furtherance of it are 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
in this location.107
182 In the document titled “Particulars of Crown case as at 19 October 2020”, the
Crown no longer pressed what was originally particularised as the third alleged
act of misconduct, namely that in “late May 2008 Mr Macdonald directed that
there be a coal mining exploration licence expression of interest process (EOI)
targeting, inter alia, Mt Penny” at such time as “the DPI considered the Mt
Penny area was not suitable as a potential coal allocation area as further
exploration was required” and that he did so “in breach of his duty of
impartiality as he knew the Obeid family owned property in this location”.108
183 That position was maintained in the Revised Statement of Particulars. 109
184 The remaining six acts of misconduct, alleged to have been committed by Mr
Macdonald pursuant to the conspiracy and in furtherance of it, retained the
original numbering in the Revised Statement of Particulars as follows
(footnotes and tracked changes omitted):
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
107
MFI 134/1 par 3.
108
MFI 134.
109
MFI 134/1.
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(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).
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.110
110
MFI 134/1 par 3.
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Proving the existence of the conspiracy by inference

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
acted111 (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.112 That
fact is hereinafter referred to as the Shepherd fact.
What is comprehended by Mr Macdonald’s duties of confidentiality and

impartiality as Minister for Mineral Resources?
188 The questions as to what is comprehended by a duty of confidentiality binding

a Minister of the Crown in New South Wales, and what is comprehended by a
Minister’s separate duty of impartiality, including the circumstances in which
the duties are imposed and what might constitute a breach of either of them,
are questions of mixed fact and law.113
111
Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32.
112
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56.
113
The fact that a person or entity regards something as confidential does not make it so (such as to attract
equitable intervention) if it is not regarded as confidential at law. See for example Wright v Gasweld Pty Ltd
(1991) 22 NSWLR 317 at 333 per Kirby J - a case concerning a restraint of trade agreement and, also in the
context of a contract of employment; Plus One International Pty Ltd v Ching (No 3) [2020] NSWSC 1598 at
5KIPGFD[#WUV.++
189 Similarly, what is comprehended by the duty of confidentiality imposed upon

the officers and employees of the DPI as members of the public service in their
dealings with Departmental business and in their dealings with the government
of the day (in this trial the staff of Mr Macdonald’s office as the Minister for
Mineral Resources) is also a question of mixed fact and law.
190 A further and related question that arises in this trial (as a question of fact and,
to a lesser extent, a question of law) is whether particular documents,
generated by the DPI either on the initiative of its employees or officers as part
of its internal processes or responsive to a request from the Minister or the
Minister’s office, or documents received and maintained by the Department
pursuant to its regulatory functions under the Mining Act, were confidential.
Documents in those categories include Ministerial Briefings received or
generated as part of the EOI process and the documents or information
embedded in or annexed to them, and certain information received and
retained by the Department from mining companies.114
191 There was no issue in the trial that in the public office Mr Macdonald held as
Minister for Mineral Resources between 2005 and 2010 he was bound by the
Code of Conduct for Ministers of the Crown (Ministerial Code of Conduct). That
document was contained within the Ministerial Handbook, a document issued
by the Cabinet Office, as the first of two annexures to the section of the
Ministerial Handbook titled “Codes of Conduct”.115 The relevant provisions of
the Ministerial Code of Conduct are set out in full at par 211 and following
below.
192 For completeness, I note that the second annexure to the section of the
Ministerial Handbook titled “Codes of Conduct” was titled “Code of Conduct for
Members of Parliament” (Parliamentary Code of Conduct). Although the Crown
made reference to the Parliamentary Code of Conduct pursuant to which both
Mr Macdonald and Edward Obeid were bound as Members of Parliament, it
was not submitted that the content of the duty of impartiality provided for in that
[448]-[449] where Hallen J emphasised that the scope of any duty of confidentiality will depend upon the
precise circumstances in which it is said to arise.
114
The third category of documents was retained in the Coal Register. Part of that document was tendered as
Exhibit AN in the trial.
115
Exhibit A pp 7445-7457.
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document had any relevant bearing in proof of the Crown case where the
indictment alleged that it was agreed that Mr Macdonald would commit
misconduct in the office he held as Minister for Mineral Resources by acting
knowingly in breach of his duties and obligations of impartiality and/or
confidentiality as a Minister in the Executive Government of the State of New
South Wales (cf. misconduct committed by him in his position as a Member of
Parliament).
193 What was the subject of contention was whether, in seeking to give content to
the duty of confidentiality as it is expressed in the Ministerial Code of Conduct,
the elements of a civil action for breach of confidence have any relevance. 116
Also in contention was whether the construction of Mr Macdonald’s duty of
confidentiality is informed by the general obligation of confidence owed by all
Ministers of the Crown.117
How do the Ministerial duties of confidentiality and impartiality impact on

proof of the Crown case?
194 The nature and scope of the duty of confidentiality, and the separate duty of
impartiality imposed upon Mr Macdonald under the Ministerial Code of
Conduct, impacts upon proof of the Crown case in two ways.
195 First, the nature and scope of those duties are central to proving the existence
of the conspiracy. Because the Crown seeks to prove the existence of the
conspiracy by proving that Mr Macdonald in fact misconducted himself as a
Minister of the Crown in connection with the granting of an EL at Mount Penny
on eight discrete occasions between 9 May 2008 and 31 January 2009, careful
consideration needs to be given as to whether the particular conduct the Crown
attributes to Mr Macdonald as an act of wilful misconduct (whether committed
in breach of his duty of impartiality alone or committed in breach of his duty of
both impartiality and confidentiality) is open to be characterised in that way.
196 Of the eight acts of wilful misconduct alleged to have been committed by Mr
Macdonald in furtherance of the conspiracy,118 all are alleged to have been
116
See the adoption of the classic formulation of the elements in Coco v AN Clark (Engineers) Ltd [1969] RPC
41 in Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281; [2010] FCAFC 21.
117
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; [1980] HCA 44.
118
MFI 134/1.
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committed in breach of Mr Macdonald’s duty of impartiality. In addition, the

fourth, sixth, seventh, eighth and ninth acts of misconduct are also alleged to
have been committed in breach of Mr Macdonald’s duty of confidentiality. That
is, it is the Crown case that Wiles Map 1 and Wiles Map 2 had the necessary
quality of confidence (the fourth act of misconduct) as did information
concerning the timeframe for the launch of the EOI process for the grant of the
EL at Mount Penny (the sixth act of misconduct); the list of companies
proposed to be invited to participate in that process in a document headed
“Company EOI 2 July 2008” (the seventh act of misconduct); a document
headed “Medium Coal Allocation Areas” and Schiavo Map 3 (the eighth act of
misconduct) and information that the EOI process had been reopened to allow
the White Group of companies to be invited to participate (the ninth act of
misconduct).
197 If the Crown fails to establish that Mr Macdonald’s dealings with the
Department in May and June 2008 (the conduct the subject of the first, second
and fifth acts of misconduct) were acts done in wilful breach of his duty to
“exercise [his] office [as Minister] honestly, impartially and in the public
interest”119 (no breach of confidentiality being alleged insofar as concerns the
conduct the subject of those three acts of misconduct), those dealings could
not as a matter of law (or mixed fact and law) be characterised as acts of
misconduct. In that event, it follows that the conduct imposed by those dealings
would cease to be available as directly probative of the existence of the
conspiracy or Mr Macdonald’s participation in it in the way contended for by the
Crown.
198 Were I to come to that conclusion, Mr Macdonald’s dealings with the

Department in May and June 2008 might nonetheless be relevant to proof of
the Crown case in other ways, for example as evidence of the context in which
the other five acts of misconduct were allegedly committed. However, unless
the Crown establishes that Mr Macdonald’s enquiries of the Department on 9
and 14 May 2008 about the volume of coal reserves in the area of Mount
Penny in the Bylong Valley and the preparedness of the Department to release
119
The duty of impartiality, being one of the “General Obligations” imposed on a Minister of the Crown under
the Ministerial Code of Conduct. See Exhibit A p 7448.
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its holdings under EL 6676 in the Bylong Valley to tender, together with his
dealings with the DPI in June 2008 preliminary to its designation of a new coal
release area in the Bylong Valley (the related conduct particularised by the
Crown as the first, second and fifth acts of misconduct) were for the improper
purpose of advancing the personal interests of the Obeid family (and/or those
of their friends and/or associates)120 and not enquiries he made consistent with
his general duties of acting “impartially, disinterestingly [sic] and in the best
interests of the people of New South Wales”,121 that is, unless the Crown
establishes that Mr Macdonald’s dealings with the Department in his capacity
as Minister in May and June 2008 were in breach of his duty and obligation of
impartiality, then those dealings may prove to be of limited probative value in
proof of the Crown case.
199 It also follows that if the Crown fails to establish that the particular information
allegedly communicated or provided by Mr Macdonald to the accused or their
family members in breach of his duty of confidentiality (the conduct the subject
of the remaining five acts of misconduct as particularised, namely the fourth
and the sixth to the ninth acts of misconduct inclusive) do not have the
necessary quality of confidence to qualify as confidential information, then Mr
Macdonald’s provision of that information to Edward Obeid, Moses Obeid or a
member of their family (assuming that were proved) cannot be characterised
as a breach of his duty of confidentiality and cannot constitute an act of wilful
misconduct in the public office he held as Minister for Mineral Resources on
that basis. However, if the provision of the information the subject of those five
acts of misconduct is otherwise shown to be in breach of Mr Macdonald’s duty
of impartiality, deficiencies in proving that the quality of confidence which
attached to that information may not disentitle the Crown from relying on the
conduct the subject of those five acts of misconduct in proving both the
existence of the conspiracy charged and Mr Macdonald’s participation in it in
the way contended for by the Crown.
120
The test of improper purpose being the “but for” test as discussed above at par 85 above.
121
The expression used in the Ministerial Code of Conduct to describe the principles “guid[ing] ministerial
conduct in office”. See Exhibit A p 7447.
5KIPGFD[#WUV.++
200 That analysis will only apply if the scope and content of the duty of impartiality
imposed upon Ministers of the Crown, and by which Mr Macdonald was bound
as the Minister for Mineral Resources, is sufficiently clear and unambiguous for
the Crown to rely upon Mr Macdonald’s proven conduct in the commission of
those five acts of misconduct as constituting a breach of that specific duty.
Neither the Crown nor the accused addressed that question in their opening or
closing submissions. The precise scope and content of the duty of impartiality,
both as a guiding principle as described in the Ministerial Code of Conduct and
as a general obligation was not developed either in the Crown’s opening or in
the Crown’s closing written submissions, other than to identify it as a duty by
which Ministers of the Crown are bound and by which Members of Parliament
are bound. The dominant focus of the submissions of the parties concerned the
content of the duty of confidentiality.
201 Each of the accused submitted that the information (whether or not in
documentary form) the subject of the fourth, sixth, seventh, eighth and ninth
acts of misconduct has not been demonstrated to have the necessary quality of
confidence, as a matter of law, such that provision of it was a breach of Mr
Macdonald’s duty of confidentiality, whatever the scope of that duty. The
accused also submitted that as the Minister for Mineral Resources, Mr
Macdonald was not obliged to treat any of those various documents or the
information they contained as confidential as it was not information “committed
to [his] secrecy”.122 That being the case, it was submitted that the provision of
that information to others (a separate matter which is also in dispute on the
evidence) could not constitute a breach of his duty of confidentiality.
202 Additionally, insofar as concerns what is alleged by the Crown to be the

release of the particular information concerning the fact or timing of a pending
EOI process (the sixth and eighth acts of misconduct), the accused complain
that the Crown has failed to establish what information could or could not be
disclosed about those aspects of the EOI process, there being no consistent or
articulated Departmental or Government policy or practice that might dictate or
even inform that approach. This was said to be in stark contrast to the
122
The formulation of one of the general principles guiding ministerial conduct in office contained in the
Ministerial Code of Conduct. See Exhibit A p 7447.
5KIPGFD[#WUV.++
document management process in place by the DPI in the evaluation phase of

the applications for the granting of ELs under the EOI process. 123
203 In relation to the fourth act of misconduct, the accused submitted that the bare
information contained on Wiles Map 1 and Wiles Map 2 was publicly available
via a range of information databases maintained by the DPI and that in those
circumstances no quality of confidentiality could attach to those maps where
that information has been visualised by an officer of the DPI.
204 The accused also submitted that where, as in this trial, there is an inherent
tension between the goal of promoting the EOI tender process for the issue of
coal ELs to industry participants in the public interest and maintaining the
confidentiality of that process until it was publicly announced, and no guidance
as to how that balance was to be struck, the Court cannot or should not find, as
a matter of law, that the information the subject of the sixth to ninth acts of
misconduct had the necessary quality of confidence such that the provision of
that information by Mr Macdonald (which is disputed) would constitute an act of
misconduct in the legal sense.
205 Secondly, the nature and scope of Mr Macdonald’s duties and obligations as a
Minister impacts upon proof of the Crown case because the Crown is obliged
to prove that at the time the conspiracy was forged (that is, no later than 9 May
2008) each of the accused knew and intended that Mr Macdonald would
misconduct himself by wilfully acting in breach of his specific duties and
obligations of impartiality and/or confidentiality (and for the improper purpose
alleged). That imposes upon the Crown the obligation of proving that each of
the accused knew of the existence of those duties and obligations, and that Mr
Macdonald was subject to them in the discharge of the public office he held as
the Minister for Mineral Resources.
206 As to the second issue, it is the Crown case that, as Minister for Mineral
Resources between, as the Crown put it, 3 August 2005 and 5 June 2010, 124
123
This was comprehensively covered in the evidence of Mr Hughes, the Chair of the Evaluati on Committee.
See T 2126. His evidence was not the subject of challenge. Neither was it suggested there were any
unauthorised disclosures of information by other the members of the Evaluation Committee or the probity
auditor.
5KIPGFD[#WUV.++
Mr Macdonald would have been in no doubt as to the extent and scope of the
duties and obligations of confidentiality and impartiality by which he was bound.
Those duties and obligations were specifically articulated in the Ministerial
Code of Conduct, versions of which were exhibited in the trial as current as at
April 2007125 and October 2008126 with updated versions provided to Mr
Macdonald’s Ministerial office from time to time.127
207 The Crown also submitted it could not be (and I note it was not) in dispute that
as at May 2008, when on the Crown case the conspiracy was forged, Edward
Obeid was also familiar with the Ministerial Code of Conduct given that he had
previously held the office of Minister for Mineral Resources and the Minister for
Fisheries, and at the time he served as a Member of Parliament more
generally.128
208 Insofar as concerns Moses Obeid’s knowledge of the existence of the duties
and obligations by which Mr Macdonald was bound as the Minister for Mineral
Resources, the Crown submitted that I would be satisfied that the close
relationship Moses Obeid enjoyed with his father, together with the length of
his father's Parliamentary and Ministerial career, would necessarily imbue his
son with an appreciation and awareness of Mr Macdonald’s Ministerial
obligations and duties as Minister for Mineral Resources. More directly, the
Crown submitted I would be satisfied that Moses Obeid knew it was not open
to Mr Macdonald to provide or share information to which he had access (or
information in his possession) as the Minister for Mineral Resources in
connection with the granting of an EL at Mount Penny, given the nature of the
information Moses Obeid either sought or was provided with, and the use he
intended to make and did make of that information which, on the Crown case, I
would be satisfied he knew was not information otherwise in the public domain.
209 The Crown further submitted that I would be satisfied that Moses Obeid also
knew that it was not open for Mr Macdonald, as the Minister for Mineral
124
Exhibit G p 3. I note that Mr Macdonald was the Minister for Mineral Resources between 3 August 2005 and
17 November 2009 (except for 5-7 September 2008) and the Minister for Mineral and Forest Resources
between 8 December 2009 and 5 June 2010.
125
Exhibit A pp 7445-7457 – current as at 26 April 2007.
126
127
Exhibit A pp 7419.003, 7429.001; T 310-311.
128
Exhibit G.
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Resources, to make focused enquiries of the DPI about the volume of coal
reserves in the Bylong Valley in the area of Mount Penny (the conduct the
subject of the first act of misconduct) or the willingness of the Department to
open its holdings under EL 6676 to tender (the conduct the subject of the
second act of misconduct) to promote the private financial interests of his
family in connection with the granting of an EL at Mount Penny, where those
enquiries were not made impartially (or disinterestedly) in the public interest.
210 The Crown submitted I would more readily draw that inference having regard to
the various steps Moses Obeid took to conceal his family’s connection to the
acquisition of the properties adjoining Cherrydale Park129 and what the Crown
submitted were the deliberate lies he told journalists in December 2012. 130 The
Crown submitted that those steps were taken and those lies were told with the
intention of concealing what Moses Obeid well knew were the discrete ways in
which Mr Macdonald had breached his Ministerial duties and obligations of
confidentiality by the provision of confidential information and in breach of his
duty of impartiality during the currency of the conspiracy, coincident with the
steps he had personally taken in furtherance of the conspiracy, including the
use he made of Wiles Map 2 and the list of 15 mining companies in his
dealings with Mr Brook,131 information he must have known was provided by
Mr Macdonald in breach of either or both his duties of impartiality and
confidentiality.
The Ministerial Code of Conduct

211 The Ministerial Handbook, dated April 2007 and issued by the Office of the
Director-General of the Cabinet Office,132 is organised in a number of sections.
The second section is entitled “Codes of Conduct”.133 It includes two
annexures, the first of which is entitled “Code of Conduct for Ministers of the
Crown” (Ministerial Code of Conduct).134 The Ministerial Handbook notes that
129
See later at par 1936 and following.
130
131
This is relied upon by the Crown as overt acts by Moses Obeid correlated to the fifth and seventh acts of
misconduct being the overt acts of acts of misconduct.
132
133
134
Exhibit A pp 7447-7456. See also Exhibit A pp 7500-7508.
5KIPGFD[#WUV.++
the Ministerial Code of Conduct has been adopted, with minor amendments, by
successive State governments since the Greiner government.135
212 I also note that the Revised Statement of Particulars provides that the iterations
of the Ministerial Code of Conduct136 current both prior to and during the period
of the conspiracy (together with the Ministerial Handbook) 137 are relied upon by
the Crown as the legal foundations of Mr Macdonald’s duties of confidentiality
and impartiality.
213 The preamble to the Ministerial Code of Conduct provides as follows:
It is essential for the maintenance of public confidence in the integrity of the

Executive Government of the State that Ministers of the Crown exhibit, and be
seen to exhibit, the highest standards of probity in the exercise of their offices,
and that they pursue, and be seen to pursue, the best interests of the people
of New South Wales to the exclusion of any other interest.
It is essential for the proper working of executive Government that Ministers of
the Crown should enjoy and retain the trust and confidence of their ministerial
colleagues both in their official dealings and in the manner in which they
discharge their official responsibilities.138
214 The following two principles are then identified as “guid[ing] ministerial conduct
in office”:
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.
(Emphasis added.)139
215 The Ministerial Code of Conduct is then introduced in the following way:
The following is not intended to be a comprehensive statement of the ethical

responsibilities of Ministers of the Crown. One cannot anticipate and make
provision for every contingency which can raise an ethical issue for Ministers.
The requirements and guidelines set out below merely provide the broad
framework to aid Ministers in the resolution of ethical issues. It is to be
emphasised that each Minister will bear personal responsibility both for the
decisions he or she makes on ethical questions and for the manner in which
he or she complies with this Code. Any ethical determination on a matter not
provided for in this Code should be in conformity with the two principles stated
135
Mr Greiner was the Premier of New South Wales from 1988. By letter of 26 April 2007 (Exhibit A p
7429.001) all Ministerial Chiefs of Staff were provided with the Revised Handbook, updated by the Cabinet
Office.
136
MFI 134/1 par 5.
137
MFI 134/1 par 17.
138
Exhibit A p 7447.
139
Exhibit A p 7447.
5KIPGFD[#WUV.++
above. In any case of doubt the Minister should refer the matter to the
Premier.
Ministers are reminded that, quite apart from their ethical obligations they are
subject to the civil and criminal law as holders of public office. In particular they
are reminded that they can be held personally responsible in law for (a) their
intentional misuse of their office and the powers and duties they have in it; (b)
conflicts of interests and the possession of interests which will disqualify them
from parliamentary office; (c) the corrupt receipt or solicitation of benefits; and
(d) the misuse of confidential information acquired by virtue of office.
216 Part 1, entitled “General Obligations”, provides as follows:
1.1 Ministers will exercise their office honestly, impartially and in the public
interest.
1.2 Ministers should avoid situations in which they have or might reasonable
be thought to have a private interest which conflicts with their public duty.
1.3 In conformity with their Executive Councillor’s oath and the requirement of
Confidentiality of Cabinet proceedings, Ministers will make no unauthorised
use of disclosure of information committed to their secrecy.
1.4 A Minister shall be responsible for ensuring that members of his or her
staff are made aware of their ethical responsibilities and will require such
disclosure or divestment of personal interests by staff members as seems
appropriate to the Minister.
217 Part 4, entitled “Confidentiality of Information”, provides as follows:
4.1 Ministers will uphold their oath of secrecy as Executive Councillors and will
maintain the confidentiality of information committed to their secrecy in the
Executive Council or in Cabinet.
4.2 A Minister shall not use information obtained in office to gain a direct or
indirect private advantage for himself or herself, or for any other person.
[4.3 and 4.4 are not material.]142
218 As I observed earlier, the Parliamentary Code of Conduct, also annexed to the
Ministerial Handbook, was not relied upon by the Crown as informing the
obligations of confidentiality owed by Mr Macdonald as the Minister for Mineral
Resources.
219 Before considering the duties of confidentiality owed by officers and staff of the
DPI, I note that the Crown did not tender any evidence of any formal, written
Code of Conduct or other such document which applied to the staff in Mr
140
141
Exhibit A p 7448.
142
Exhibit A p 7452.
5KIPGFD[#WUV.++
Macdonald’s office and which imposed a duty of confidentiality upon those staff
members.
The DPI Code of Conduct

220 The DPI Code of Conduct was revised in April 2006.143
221 Section 7 of the DPI Code of Conduct is in the following terms: 144
Protecting confidential information

Official information must only be used for the work-related purpose intended
and not for personal benefit. Unless authorised to do so by legislation,
employees must make sure that they do not disclose or use any confidential
information without official approval.
Unauthorised disclosures may cause harm to individuals or give an individual
or an organisation an improper advantage. The integrity and credibility of NSW
DPI may also be damaged if it appears unable to keep its information secure.
All employees must make sure that confidential information in any form
(including computer files) cannot be accessed by unauthorised people, and
that sensitive information is only discussed, within or outside the department,
with people who are authorised and have a legitimate, work related reason for
access.
(Emphasis added).
222 The Crown submitted that in the context of the facts in issue in this trial, the
evidence of the approach the employees and officers of the DPI took to
compliance with their duty or obligation of confidentiality as contained in
section 7 of the Code of Conduct and their understanding of what that duty
entailed is relevant to the Court’s consideration of the scope of Mr Macdonald’s
duty of confidentiality as Minister for Mineral Resources as provided for in the
Ministerial Code of Conduct. There is no equivalent in the DPI Code of
Conduct to the Minister’s duty of impartiality.
223 The content and scope of the duties imposed upon Mr Macdonald as Minister
on the one hand, and the content and scope of the duties imposed upon
officers or employees of the DPI on the other, may be similar, in the sense that
they are both intended to fix and preserve the highest standards of probity and
integrity to which members of the Executive and Departmental officers should
adhere in the public interest. However, and for a range of obvious reasons, the
content and import of the respective Codes of Conduct differ. The most
143
Exhibit A pp 52.003-52.013.
144
Exhibit A p 52.011.
5KIPGFD[#WUV.++
significant difference is that Ministers are commissioned by the Governor of

New South Wales to be “responsible for the day to day administration of the
State”, referable to the portfolio(s) under their control, and are required to take
the Ministerial Oath of Office (or equivalent affirmation) pursuant to which the
Minister promises to “perform the functions and duties of [their office] faithfully
and to the best of [their] ability”.145
224 In addition, on appointment to the Executive Council, Ministers are required to

take the Pledge of Loyalty and the Executive Councillor’s Oath of Office as
prescribed by the Constitution Act 1902 (NSW).146
225 The Pledge of Loyalty provides:
Under God, I pledge my loyalty to Australia and to the people of New South
Wales.147
226 The Executive Councillor’s Oath of Office provides:
I, [insert name] being appointed as a member of the Executive Council of New

South Wales, do swear that I will perform the functions and duties of an
Executive Councillor faithfully and to the best of my ability and, when required
to do so, freely give my counsel and advice to the Governor or officer
administering the Government of New South Wales for the time being for the
good management of the public affairs of New South Wales, and that I will not
directly or indirectly reveal matters debated in the Council and committed to
my secrecy, but that I will in all things be a true and faithful councillor. 148
227 While neither the Pledge of Loyalty nor the Executive Councillor’s Oath of
Office inform, in any material sense, the Ministerial duties of confidentiality and
impartiality, they do reflect the trust and confidence that a Minister of the Crown
owes to the State and the members of the community which embody it and the
polity they serve in the execution of their Ministerial powers and duties for the
public benefit.
228 A number of Departmental officers and employees gave evidence of their

understanding of the operation of the DPI Code of Conduct as it related to their
dealings with information generated within the DPI and/or communicated or
provided to the Minister. The extent to which that evidence assists in giving
145
Exhibit A p 7437.
146
Exhibit A p 7437.
147
Exhibit A p 7437.
148
Exhibit A p 7437.
5KIPGFD[#WUV.++
form and context to the Minister’s separate and discrete duty of confidentiality
will be considered below at par 259 and following.
What is confidential information as a matter of fact and law?

229 The Crown acknowledged, and correctly so, that merely treating particular
information as confidential, including the marking of a document as confidential
by way of a stamp or other insignia, does not make it so. That is, in the
circumstances of the case, I approach the fact that certain documents were
regarded by DPI staff as being confidential as not dictating as a matter of fact
or of law that those documents had the quality of confidence such that the
provision of them, or the communication of the information in them, would
constitute a breach of the duty of confidentiality by which the DPI officers
and/or Mr Macdonald were bound.
230 The Crown also noted, again correctly, that what constitutes confidential
information has largely arisen in the context of an action for equitable breach of
confidence.
231 The Crown and the accused (principally through Mr Neil’s written submissions)
addressed the equitable obligation of confidence referable to the classic
formulation of the elements in an action for breach of confidence, namely:
(i) the information must be specifically identified;

(ii) it must have the necessary quality of confidence;
(iii) it must have been imparted in circumstances importing an
obligation of confidence; and
(iv) there must be an unauthorised use of that information to
the detriment of the party communicating the confidential
information.
232 While that formulation does not definitively inform of the scope of the duty of
confidentiality that is in issue in this trial, in particular where the obligation of
confidence is owed to the State by a Minister of the State and the notion of a
personal detriment in (iv) above has no relevance, for the reasons which follow,
I am satisfied that it informs that question.
5KIPGFD[#WUV.++
What constitutes the duty of confidentiality under the Ministerial Code of

Conduct?
233 In closing submissions, the Crown treated Clause 4.2 of the Ministerial Code of
Conduct as “expressing the duty of confidentiality” by which Mr Macdonald was
bound as a Minister in the Executive Government of the State of New South
Wales. Clause 4.2 provides:
A Minister shall not use information obtained in office to gain a direct or

indirect private advantage for himself of herself, or for any other person. 149
234 In that formulation of the duty, there is a prohibition on the “use” of information
obtained in the exercise of the office of Minister essentially for an improper
purpose. On any sensible construction, that prohibition must also be taken to
include a prohibition on the provision of information obtained by the Minister to
another person for the purpose of gaining a private advantage for the Minister
or for another person. If Clause 4.2 were not intended to prevent Ministers from
providing information to others in order to gain a private advantage, it would
follow that a Minister could permissibly impart an unlimited amount of
information (which the Minister has by virtue of the Office they hold) to other
people for the purpose of benefitting either or both of the Minister and the
recipient of that information or for the purpose of benefitting a third party.
235 Mr Neil makes the sound point that while there is in Clause 4.2 a clear
prohibition on the use of any information for an improper purpose, neither
Clause 4.2, nor any other provision of the Ministerial Code of Conduct or the
Ministerial Handbook, articulates what information warrants the designation of
“confidential information” imposing on the Minister an obligation of confidence
in the performance of, or adherence to, his or her Ministerial duty of
confidentiality.
236 As I understand the Crown’s written closing submissions,150 although it was not
put expressly, the scope and content of the duty of confidentiality as expressed
in Clause 4.2 can only be meaningfully gauged from the circumstances in
which a particular Minister of the Crown receives information in the office they
hold as a Minister and whether, in the assessment of the particular Minister,
149
Exhibit A p 7452.
150
MFI 181 pars 142-146.
5KIPGFD[#WUV.++
their possession of that information enlivens an obligation of confidence. In the

Crown’s submission, again as I understand it, that may be because the
information is commercially sensitive or because the nature of the information
the Minister is dealing with is such that it is in the public interest that it be
treated as confidential, even if only for a limited period of time.
237 In support of that construction of the scope of the duty of confidentiality, the
Crown relied upon its analysis of what were described in a number of civil
cases as circumstances importing an obligation of confidence, albeit, in each
case, a decision which concerned an action to restrain publication of
confidential information.
238 Confidential information imparted or received in circumstances importing an

obligation of confidence was described in Coco v AN Clark (Engineers) Ltd 151
as follows:
[T]he circumstances are such that any reasonable man standing in the shoes
of the recipient of the information would have realised that upon reasonable
grounds the information was being given to him in confidence, then this should
suffice to impose upon him the equitable obligation of confidence.
239 Similarly, in Attorney-General v Guardian Newspapers (No 2),152 Lord Goff
stated:
[A] duty of confidence arises when confidential information comes to the

knowledge of a person … in circumstances where he [or she] has notice, or is
held to have agreed, that the information is confidential, with the effect that it
would be just in all the circumstances that he [or she] should be precluded
from disclosing the information to others.
240 McHugh JA in Attorney-General (UK) v Heinemann Publishers Pty Ltd 153
observed that sometimes the information may be conveyed with an express
statement that it is confidential, although, perhaps more commonly, the
obligation of confidence is deduced from the circumstances in which the
information is conveyed. In the context of trade or commerce, relevant
circumstances will include the extent to which the information is known inside
and outside the business, the measures taken to guard the secrecy and the
value of the information.
151
[1969] RPC 41 at 48.
152
[1990] 1 AC 109 at 281.
153
(1987) 10 NSWLR 86 at 189-190.
5KIPGFD[#WUV.++
241 McHugh JA went on to observe that in relation to government information: 154
… Equity will not protect the disclosure or use of what I shall call government
information unless, at the time when the information was acquired, it was or
would have been regarded by the government and the confidant as
confidential, that it was imparted in circumstances which imposed an obligation
of confidence, that it retains its confidentiality, and that it is in the public
interest to treat it as confidential.
242 Mr Neil dealt with some of those authorities but placed particular emphasis on
what he described, accurately, as the need to view the disclosure of
government information in contrast to where personal or commercial secrets
were involved.155
243 Mr Neil’s reference to the need to assess the obligation of confidence owed to
the State through a different lens derives directly from the decision of the High
Court in The Commonwealth of Australia v John Fairfax and Sons Ltd.156
244 That case concerned whether certain publishers should be enjoined from
publishing newspapers containing confidential information in the form of what
were described as “official secrets” which the publishers knew was not
information “in their hands” with the knowledge or authority of the
Commonwealth. In those circumstances, it was the Commonwealth’s case as
plaintiff that the recipients of that information were under a duty not to disclose
it.
245 Leaving to one side Mason J’s consideration of the reach of an injunction as
equitable remedy (in which case the publisher’s knowledge of the classified
nature of the documents and the Commonwealth’s claim that it had not
authorised release of the information might have been of particular relevance),
Mr Neil relied upon the following passages (at 51-52):
The equitable principle has been fashioned to protect the personal, private and
proprietary interests of the citizen, not to protect the very different interests of
the executive government. It acts, or is supposed to act, not according to
standards of private interest, but in the public interest. This is not to say that
equity will not protect information in the hands of the government, but it is to
say that when equity protects government information it will look at the matter
through different spectacles.
154
At 191, referring with approval to the remarks of Mason J in Commonwealth v John Fairfax at 52
155
MFI 192 p 183.
156
(1980) 147 CLR 39; [1980] HCA 44.
5KIPGFD[#WUV.++
It may be a sufficient detriment to the citizen that disclosure of information

relating to his affairs will expose his actions to public discussion and criticism.
But it can scarcely be a relevant detriment to the government that publication
of material concerning its actions will merely expose it to public discussion and
criticism. It is unacceptable in our democratic society that there should be a
restraint on the publication of information relating to government when the only
vice of that information is that it enables the public to discuss, review and
criticize government action.
Accordingly, the court will determine the government's claim to confidentiality
by reference to the public interest. Unless disclosure is likely to injure the
public interest, it will not be protected.
246 The principle for which that case is authority (which seems to me to be
concerned with the conflicting considerations a court must weigh in the balance
in deciding whether the public’s interest in knowing and expressing its opinion
about the business of government predominates over the need to protect the
confidentiality of the information) has, however, been endorsed and followed in
other contexts,157 elevating the importance of the requirement that publication
of information said to be confidential be restrained in the public interest or, to
put it another way, that the public interest requires that publication of that
information be restrained.
The relevance, if any, of s 365 of the Mining Act

247 In the context of considering the limitations to the scope of Mr Macdonald’s
duty of confidentiality as the Minister for Mineral Resources, to ensure that
restrictions on the disclosure of information are not imposed beyond what the
public interest requires, both Mr Neil and Mr Martin relied upon the express
provisions of s 365 of the Mining Act.
248 Mr Neil submitted that s 365 of the Mining Act is one of a number of sections of
the Act which are relevant to determining the scope of Mr Macdonald’s duty of
confidentiality as the responsible Minister under the Act.158 He submitted that
the Crown has not addressed how the information said by the Crown to have
been confidential and disclosed contrary to the duty imposed on Mr Macdonald
under the Ministerial Code of Conduct (the conduct the subject of the fourth,
sixth, seventh, eighth and ninth acts of misconduct as particularised) 159 could
157
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19.
158
MFI 192 pp 189-190.
159
In addition to Mr Macdonald’s duty of impartiality, also s aid to have been breached by doing the acts the
subject of those same acts of misconduct.
5KIPGFD[#WUV.++
be treated as confidential at law in circumstances where Mr Macdonald had the

right to disclose the information under s 365 of the Mining Act and/or a member
of the public had a right to access the information under the Freedom of
Information Act 1982 (Cth).
249 In Mr Neil’s submission, two aspects of the Mining Act are of relevance in
defining or determining the scope of any obligation of confidentiality imposed
under Ministerial Code of Conduct.
250 First, s 22 of the Mining Act provides the relevant Minister with the sole power
and unfettered discretion to grant ELs:
(1) After considering an application for an exploration licence, the Minister:

(a) may grant an exploration licence to the applicant, or
(b) may refuse the application.160
251 Second, s 365 of the Act provides:
(1) A person must not disclose any information obtained in connection with the
administration or execution of this Act, unless the disclosure is made:
(a) with the consent of the person from whom the information was
obtained, or
(b) in connection with the administration or execution of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or
of any report of any such proceedings, or
(d) for the purposes of any investigation or inquiry conducted by a
warden under this Act, or
(e) with the concurrence of the Minister, or
(f) under the Freedom of Information Act 1989 (NSW).
(2) A person employed in the Department must not use for the purposes of
personal gain any information obtained in connection with the administration or
execution of this Act.
252 Mr Neil submitted that a number of conclusions ought be drawn from the
operation of those sections of the Mining Act:161
(1) Section 365(1)(b), particularly when read with s 356(2), makes it clear
that information obtained in connection with the administration or
160
Per the version current as at 1 January 2008. I note that s 22(1)(a) was subsequently amended as at 1
August 2008 to provide that the Minister, after considering an application for an EL, “may grant to the
applicant an exploration licence over all or part of the land over which a licence was sought”.
161
MFI 192 pp 189-190.
5KIPGFD[#WUV.++
execution of the Mining Act may be disclosed by any person in

connection with the execution of the Mining Act.
(2) Section 365(1)(e) makes it clear that information obtained in connection
with the administration or execution of the Mining Act may be disclosed
with the consent of the Minister (which necessarily implies that the
Minister may disclose the information himself or herself).
(3) Section 365(1)(f) makes clear that prima facie the Freedom of
Information Act applies to information obtained in connection with the
administration or execution of the Mining Act.
253 In the Crown’s submission,162 s 365 has no relevant bearing on what is
comprehended by the duty of confidentiality expressed in Part 4 of the
Ministerial Code of Conduct which binds all Ministers, and where, in any event,
it is clear that the statutory purposes in the enacting of the Mining Act 1973
(NSW) (s 22 of which was the precursor of s 365 of the Mining Act 1992
(NSW)), addressed in the second reading speech as the Mining Bill passed
into law in 1972, are to “conserve, manage and foster development of [the
State’s] mineral resources for the maximum benefit of its present and future
citizens”.163 The Crown submitted the section should not be construed as
providing “a form of legislative abrogation” of Mr Macdonald’s duty of
confidentiality as Minister. In particular, s 365(1)(b), properly construed, would
not authorise the disclosure of information of the kind the subject of the fourth
and the sixth to ninth acts of misconduct, where it is the Crown case that the
information was not disclosed in the public interest but to foster or enhance
private interests.
254 In Mr Neil’s submission,164 the Crown’s submission is misconceived. He

submitted that the relevant question for the Court is not whether the section
operates so as to provide a “form of legislative abrogation of the Minister’s duty
of confidentiality”.165 Rather, the question is whether it can meaningfully ascribe
to Mr Macdonald an appreciation of what he must have understood as the
obligation of confidentiality by which he was bound, having regard to the
operation of s 365.
162
MFI 181 par 159.
163
New South Wales Legislative Assembly, 2nd Reading Speech Mining Bill (Hansard), 23 November 1972 at
3094.
164
MFI 192 p 190.
165
MFI 181 par 159.
5KIPGFD[#WUV.++
255 It is fundamental to proof of the Crown case that, on the basis of the facts
established by the evidence and the inferences that might be legitimately
drawn from that evidence, that the Crown exclude any reasonable or rational
hypothesis inconsistent with what I might find was Mr Macdonald’s
communication or dissemination of the information the subject of the fourth and
the sixth to the ninth acts of misconduct as wilful acts of misconduct. It is
equally fundamental, however, that I must be satisfied that the evidence
provides a proper basis for considering that Mr Macdonald might have
communicated the information the subject of those particularised acts of
misconduct in connection with the administration execution of the Mining Act
and not knowingly in breach of his Ministerial duties and obligations as the
Crown alleges. Neither Mr Neil nor Mr Martin referred me to any evidence
which might have supported the reasonable possibility that Mr Macdonald
communicated any of the information the subject of those five particularised
acts of misconduct in the legitimate discharge of his authority under s 365 of
the Mining Act, or for any other purpose in the public interest.
256 In any event, I should add that I do not construe the operation of s 365 as
defining, informing or constraining the reach or extent of the duties or
obligations imposed under the Ministerial Code of Conduct. In my view, s 365
operates for a distinctly different purpose. It operates as an offence-creating
provision providing for penal consequences where a person suspected of
committing the offence created by the section cannot rely upon one of the
statutory exceptions to the absolute prohibition upon the disclosure of “any
information obtained in connection with the administration or execution of [the
Mining Act]”.
257 Mr Neil also relied upon the Freedom of Information Act 1989 (NSW). In his
submission, the “fundamental premise” of that Act, namely, the public’s right to
access documents held by a public body, reflects the need to ensure that
where a Minister is alleged to have been the source of the disclosure of
confidential information, the test of whether that is in “the public interest” should
be relied upon.166
166
MFI 192 p 190.
5KIPGFD[#WUV.++
258 Again, in my view there is simply no basis in the evidence, or as a matter of

principled analysis, for the invocation of the operation of that statutory regime
to be taken into consideration when determining the terms and scope of a
Minister’s duty of confidentiality as imposed under the Ministerial Code of
Conduct.
The evidence of the DPI officers as to their understanding of their duty of

confidentiality
259 Mr Mullard, the Director of the Coal and Petroleum Development Group within
the DPI, understood his obligations arising from the DPI Code of Conduct were
to protect and deal with confidential and “sensitive” information, either
generated by the Department or received by the Department from third party
entities, in particular companies in the mining industry. That included what
were considered by Mr Mullard to be “commercial in confidence” documents
because they contained detailed information mining companies had supplied to
the Department pursuant to their reporting obligations as the holder of an EL,
including the results of their coal exploration activities and what future activities
might be envisaged by them.167 Mr Mullard gave evidence that some
information received by the Department in that way was time-sensitive, in the
sense that after the passage of time some company data, received on a
confidential basis, might become publicly available.
260 A particular category of information which Mr Mullard identified as information

the Department treated as confidential, involved arrangements for the release
of new coal release areas pursuant to an EOI process. That information was
treated as confidential to ensure that access to the information did not confer a
commercial or pecuniary advantage on third party interests who may, for
example, wish to acquire land over which a coal EL might issue. 168
261 Mr Mullard also gave evidence that the staff within the DPI were also made
aware of “what data could be provided” and “what data couldn’t”. 169 That
information was not confined to information “on the [DPI’s] databases” but
167
T 588.
168
T 589.
169
T 603.
5KIPGFD[#WUV.++
included what he described as “maps” and reports which identified unallocated

coal release areas and potential coal resources.170
262 Mr Mullard also gave evidence that he understood that what was otherwise
treated as confidential information could be released with “official approval”. 171
He said approval was sought from time to time from the Minister to release
information and in many cases, although not invariably, in writing. 172 Mr Mullard
also gave evidence that there was no impediment, as he saw it, to providing
information to the Minister, even where it was treated by the Department as
confidential or sensitive, given the Minister’s statutory responsibilities under the
Mining Act. Mr Mullard also said that if a staff member of the Department was
approached by another Member of Parliament for the release of what was
otherwise treated by the Department as confidential or sensitive information, a
departmental officer would seek the Minister's approval before providing that
information.173
263 Mr Mullard gave evidence that some information either generated or

commissioned by the DPI in the form of expert reports focusing on coal
resources in particular areas174 or information provided to the Department by
mining companies including, for example, bore hole data and the identity and
analysis of coal intersections, was variously treated as both “confidential” or
“non-confidential”, in the sense that information of that kind might be received
by the Department and retained as confidential for a period of time after which
the information might become “open file or non-confidential”.175 The
responsibility of deciding what data was confidential at any one time devolved
to staff members within the DPI who had the responsibility to manage the
information held by the Department on its various databases. 176
264 Mr Mullard also gave evidence that:
170
T 603.
171
Exhibit A p 52.011.
172
T 655.
173
T 655.
174
EK Yoo, Geology and Coal Resources of the Northern Sector of the Western Coalfield Rep ort No. GS 1991-
003) (Exhibit J); JG Dwyer et al, Strategic Study of the Coal Resource Potential from Hunter Valley to West
Cobbora (Report No GS 2005/334, July 2005) (Exhibit K).
175
T 599.
176
T 599-600.
5KIPGFD[#WUV.++
(i) While working documents within the DPI were being

developed, they were either sensitive or confidential and
were not released and not available publicly. This could
change at a later time when they were no longer working
documents.
(ii) If the Minister decided that an area would be released for
coal exploration and the Department commenced work to
define that area and to prepare information packages,
that information was confidential until such time as the
new coal release area was publicly released, either an
open or closed tender process.
(iii) The specific area that was going to be released was
confidential but, for example, the fact that the DPI would
be releasing areas in “the Western Coalfield” was not
confidential.
265 As Director-General of the DPI, Dr Richard Sheldrake gave evidence that
confidential or sensitive documents (such as Cabinet minutes and tender
documents) should “remain within the Department or the Minister’s office” and
should not be disclosed. In relation to tenders, this was because others could
potentially make “significant gains inappropriately if that information was
disclosed”.177
266 Mr Alan Coutts, as the Deputy Director-General of the DPI with responsibility
for the Mineral Resources Division, gave evidence that a number of categories
of information were confidential, including information that was Cabinet in
confidence, official information and sensitive information, categories provided
in the DPI Code of Conduct.178 He gave evidence that submissions to the
Minister were confidential and would not be provided outside the Minister’s
office unless specific approval was obtained from the Minister, or the Director-
General or the Deputy Director-General of the DPI.179 He gave evidence that
although there was no written document he was aware of which identified
which documents were confidential or a practice of stamping documents
“confidential”, there was a well-understood protocol within the DPI regarding
the sort of information that could be disclosed.180
177
T 2325-2326.
178
Exhibit A p 52.003-52.013.
179
T 323-325.
180
T 428-429, 323-325.
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267 The Crown submitted that it was Mr Coutts’ understanding that information,
whether or not marked “confidential”, which potentially formed the basis of an
EOI document should not be provided outside the DPI (other than to the
Minister’s office).181 In support of that submission, the Crown relied on Mr
Coutts’ evidence that the document titled “Prospective Coal Exploration and
Expression of Interest Areas in NSW” dated 31 July 2008 182 came to be
labelled as confidential because “these were potentially forming the basis of an
expression of interest document, which would have been confidential”.183 The
Crown also relied on Mr Coutts’ evidence that he would not provide information
as to possible timeframes for the EOI process (information which he
understood to pertain to the upcoming EOI process) to anyone outside the
Department because he considered that information to be confidential. 184
268 Ms Julie Moloney’s understanding, as Senior Project Officer within the

Development Coordination section of the DPI, was that the documents and
information she dealt with were highly confidential. She gave evidence that if
the DPI was considering a competitive release process, disclosing that
information in advance of the process being announced could secure an
advantage for some at the expense of others.
269 Ms Leslie Wiles’ understanding, as the manager of the Coal Advice section of
the DPI, was that any information that came from coal mining companies in
their reports or exploration undertaken by the DPI (until it was publicly
released) and any conversations mining companies had with the DPI were
considered confidential and not to be discussed outside the office. She also
gave specific evidence as to the confidentiality that attached to Wiles Maps 1
and 2 in the context of their inclusion in Ministerial Briefings in May 2008.
270 Mr Graham Hawkes, as the Principal Minerals Liaison Officer within the
Ministerial and Executive Support Division of the DPI, gave evidence that he
treated as confidential responses to requests for information – whether
181
T 355, 358.
182
183
T 355.
184
T 358.
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requests from the Minister’s office, the Deputy Director-General, the Director-
General or those within the DPI who had prepared the response.
271 In the Crown’s submission, the evidence of how senior Departmental officers
dealt with information which they considered would be encapsulated within the
concept of “confidential” or “commercially sensitive” information, including, inter
alia, and relevantly so far as the issues in this trial are concerned, Ministerial
Briefings which included maps and other information generated by the DPI in
connection with the creation of the Mount Penny Coal Release Area, and other
documents created in connection with the DPI’s contemplated EOI process for
the granting of an EL over that area, meaningfully informs the question of fact
whether that same information, when furnished to Mr Macdonald as the
Minister by the Department, was also “confidential” and/or “commercially
sensitive” and should have been treated by him in the same way.
272 Mr Neil submitted that for the Crown to treat the duty of confidentiality imposed
on officers of the DPI as analogous with the Minister’s duty of confidentiality
was misguided. Mr Neil submitted the analogy fails to grapple with the
particular circumstances in which the duty of confidentiality binding Mr
Macdonald as the Minister for Mineral Resources arises in the facts of this
case, including to whom any obligation of confidentiality was owed.
Mr Iemma and Mr Gibson’s evidence
273 The Crown relied upon the evidence of Mr Morris Iemma, a former Premier of
New South Wales (extracted below), and Mr Jamie Gibson, Mr Macdonald’s
Deputy Chief of Staff in 2008, to give content to the duty of confidentiality in
Clause 4.2 of the Ministerial Code of Conduct (extracted above) as they
understood it to operate.
274 Mr Gibson gave evidence that within the Minister’s office, Cabinet documents
and any documents which contained commercially sensitive information or
information not for public exposure would be treated as confidential.
275 Mr Iemma gave evidence which addressed the Ministerial Code of Conduct. He
gave evidence of his understanding of the duties and obligations imposed
under the Code; how they were (to his understanding) intended to operate, and
how he saw himself bound by those duties and obligations in the discharge of
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his Ministerial responsibilities as the Minister for State Development from

February 2006 to April 2007.
276 After confirming that the duties and obligations of impartiality and confidentiality
provided for in the Ministerial Code of Conduct were what he described as
principles of long-standing, he gave the following evidence:
Q. Do documents require a stamp marked “Cabinet in Confidence” for them to

be considered confidential to a department?
A. Confidential to the Cabinet process they require the stamp. If it is a
document generated to support a Cabinet submission, if it is a draft Cabinet
submission, then it needs the stamp, it needs the seal of “Cabinet in
Confidence”. To be confidential to the Cabinet process, a department could
generate a document that could contain sensitive information which is not
information scheduled to go to Cabinet or part of a Cabinet discussion, which
could be sensitive and confidential; commercial, for example.
I had many examples of that when I was Public Works Minister, that as an
agency that is the procurement agency for Government. So we, the
department, had documents that were sensitive in a commercial sense that
weren't headed for Cabinet or a Cabinet subcommittee but were sensitive.
They weren't stamped “Cabinet in Confidence” but they were sensitive.
Q. Without breaching that confidence, are you able to give us an example of
the type of document you are talking about?
A. The procurement documentation to go out to tender, when Government
would be likely to call for expressions of interest. The department was the
department that disposed of Government assets so information about would
an asset be disposed of; the Public Works usually dealt with old school sites,
TAFE sites, the medium and smaller physical assets of the State. So
information about whether they would go for disposition was sensitive and any
timing of any expression of interest to the market would be sensitive. So until
there was a formal decision to dispose, in which there was a general notice,
that was quite sensitive information.185
277 He also gave the following evidence:
Q. Returning then to the issue of the confidentiality of documents that may not
be marked “Cabinet in Confidence”, was there guidance for Ministers generally
as to what documents between a Minister’s office and their department would
be confidential and/or commercially sensitive?
A. Not to my - I can't recall if there was specific, no, advice.
Q. And when you say you can't recall if there was specific, are you talking
about written guidelines?
A. Written guidelines, discussion in Cabinet. Cabinet discussion focused on
Cabinet documents. Security of Cabinet discussion, security of Cabinet
documents, avoiding leaks. The discussions focused on Cabinet documents.
…
185
T 228-229.
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Q. During your time as Premier, limiting it to that period, was it your

observation that there was any general practice in place about the manner in
which Ministers would deal with documents that came up from their
department?
...
A. I can’t recall. I recall that the discussions in Cabinet when it related to
documents were, where they were Cabinet submissions or were documents
that were in support of Cabinet submissions and they were cloaked with the
confidentiality of Cabinet, the discussions focused on ensuring no leaks,
ensuring the security of the actual Cabinet submission and any documents
that were supportive of the submission that were attached to it. So discussions
about how they would be treated and confidentiality of those, certainly.
General documents and how each individual Minister treated documents
generated in their department, I don't recall discussions about how they should
be treated.186
278 Finally, he gave the following evidence:
Q. During your time as Premier between 2005 and 2008, was there a policy in
place about the appropriate course that a Minister should take on becoming
aware of a potential or actual conflict of interest?
...
A. From the Code of Conduct, and from practice, I was a member of the
Cabinet when we were dealing with policy issues, proposed legislative change
and Ministers would rise and inform the Premier, the then Premier, Mr Carr,
that there was either an actual or perceived conflict and they would absent
themselves from deliberations at that meeting. That was one example.
HER HONOUR
Q. Would I be right, Mr Iemma, it would really be a matter that would become
active in the mind of the individual member because the conflict would only
arise in that situation; and, similarly, where a Minister in the discharge of
ministerial obligations - that is, beyond Cabinet - became concerned that there
may be a conflict in one or other of his ministerial dealings or his dealings with
department, again it would be activated in the mind of the Minister and, in
accordance with the Code of Conduct, he or she would be expected to take
appropriate measures?
A. Yes. Yes, your Honour. 187
…
Q. You gave the example earlier of commercially sensitive documents. Can I
ask this: Is it your view that if a Minister is of a view that a document is
commercially sensitive, a document that goes between himself and his
department, then that document should remain confidential?
…
A. Yes. 188
186
T 231-232.
187
T 233-234.
188
T 235-236.
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279 Mr Neil submitted that Mr Iemma’s evidence does not meaningfully address the
issues in this trial. In particular, his evidence, given at a general level, does not
inform the principled approach the Court must take to identifying the defining
features of a duty of confidentiality owed by Mr Macdonald as the Minister for
Mineral Resources at law, in circumstances where, as Mr Neil submitted, the
duty of confidentiality in the Ministerial Code of Conduct is heavily qualified by
s 365 of the Mining Act189 and the operation of the Freedom of Information Act
1989 (NSW).
What will need to be proved to constitute a breach of Mr Macdonald’s duty of

confidentiality?
280 Taking into account the evidence of DPI officers and executives, and the
evidence of Mr Gibson and Mr Iemma (the latter of which is, in my view,
entitled to very considerable weight) and after considering the authorities to
which I have referred, I am satisfied, and direct myself accordingly, that in
order to establish that Mr Macdonald acted in breach of the Ministerial Code of
Conduct by acting in breach of the duty of confidentiality imposed upon him as
the Minister for Mineral Resources, the Crown 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);
(ii) Establish that the information said to be confidential was
in fact communicated or imparted by Mr Macdonald in the
form and/or manner alleged, as distinct from that
information being obtained or accessed in some way
independent of any breach of duty; and
(iii) Establish that of the information that satisfies (i) and (ii), it
was imparted contrary to Mr Macdonald’s duty to keep
that information confidential in the sense that he “used” it
for legitimate public purposes, or in the public interest and
not to gain a direct or indirect private advantage for others
189
Mr Neil relied upon the version of the Mining Act in force from 1 January 2008 to 30 June 2008.
5KIPGFD[#WUV.++
(namely, his co-conspirators and/or their family and/or

associates).
What constitutes the duty of impartiality under the Ministerial Code of
Conduct?
281 As stated above, I was without assistance from the Crown as to the precise
scope and content of the duty of impartiality allegedly breached by Mr
Macdonald in the commission of the first, second and fifth acts of misconduct
and as an alternative to the breach of confidentiality alleged in respect of the
remaining five acts of misconduct, expressed both as a guiding principle and
as a general obligation in the Ministerial Code of Conduct.
282 In those circumstances, I propose to proceed on the basis that Mr Macdonald’s

duty of impartiality was relevantly informed by the General Obligations set out
in the Ministerial Code of Conduct to “perform their duties impartially,
disinterestingly [sic] and in the best interests of the people of New South
Wales” (emphasis added),190 which I interpret to mean not responsive to
private interests at the expense of the public interest.
283 In the Crown’s submission, the demonstrable factual interrelationship between

what it submitted were the eight acts of misconduct committed by Mr
Macdonald, and the conduct of Moses Obeid in particular, and, by inference,
the conduct of Edward Obeid as overt acts by each of them in furtherance of
the conspiracy including the receipt by one or both of them and their
deployment of confidential information Mr Macdonald communicated to them in
breach of his duty of confidentiality, leads inevitably to the Crown having
established, beyond reasonable doubt, that the accused were at all relevant
times acting in concert pursuant to the conspiracy alleged.
284 In that context, I note that in the Revised Statement of Particulars, 191 the fourth,
seventh and eighth acts of misconduct are particularised in the same way,
namely that Mr Macdonald caused the confidential information the subject of
those alleged acts of misconduct to be provided to Edward Obeid, Moses
Obeid, or another member of the Obeid family. The Crown did not, however,
tender any evidence capable of establishing the existence of a relationship
190
Exhibit A p 7447.
191
MFI 134/1.
5KIPGFD[#WUV.++
between Mr Macdonald and any member of the Obeid family other than
Edward Obeid or Moses Obeid.
285 By casting the potential recipients of the confidential information in the

alternative in that way, the Crown left open the possibility that neither of the
accused received the information directly from Mr Macdonald, which allows for
the further possibility that if Edward Obeid or Moses Obeid can be shown to
have been in possession of that information, they may have been unaware of
its provenance, or aware the information had the character or quality of
286 In respect of the sixth and ninth alleged acts of misconduct, it was alleged that
Mr Macdonald communicated the information the subject of those alleged acts
of misconduct to Edward Obeid and/or Moses Obeid, that is, the information
was communicated to one or both of them (cf. another member of their family).
287 Some of those distinctions appeared to collapse in the Crown case as closed.
In the Crown’s written closing submissions, the following information (which I
was invited to find was confidential in the hands of Mr Macdonald as the
Minister for Mineral Resources) was alleged to have been provided to Moses
Obeid or another member of the Obeid family, without nominating Edward
Obeid as one of those people:
(a) Wiles Map 1 and Wiles Map 2 (the fourth act of misconduct);
(b) The proposed date for the launch of the EOI (the sixth act of
misconduct);
(c) The list of companies proposed to be invited to participate in the
EOI process (the seventh act of misconduct);
(d) Schiavo Map 3 (the eighth act of misconduct);
(e) A page of information headed “MEDIUM COAL ALLOCATION
AREAS” (the eighth act of misconduct); and
(f) Information about the reopening EOI of the EOI process for the
White Group (the ninth act of misconduct).192
288 Although no specific mention was made of the confidential information in (a)-(f)
above being provided to Edward Obeid by name, or that it was at any time in
his possession, in the immediately following paragraph of the Crown’s closing
192
MFI 181 p 109.
5KIPGFD[#WUV.++
written submissions, the schedule of telephone contact between the accused

and diary entries which recorded scheduled meetings between them was relied
upon as providing Mr Macdonald with “ample opportunity to provide this
information to Edward Obeid, Moses Obeid, or another member of the Obeid
family” (emphasis added).193
289 It is of some significance that it is not alleged in the Revised Statement of

Particulars, or in the way the Crown put its case at trial, that the information the
subject of the first and second acts of misconduct (being information inter alia
concerning coal reserves in the Bylong Valley near Mount Penny furnished to
Mr Macdonald by the DPI at his request), nor Mr Macdonald’s alleged direction
to the DPI to reduce the potential open cut coal resource in the Bylong Valley
as represented in Wiles Map 2 to make a smaller coal release area in the east
in the area of Cherrydale Park, the subject of the fifth act of misconduct, was
information communicated to the Obeids (or to anyone) by Mr Macdonald, or
by anyone on his behalf in breach of his Ministerial duties of confidentiality or
impartiality.194
290 Later in its closing submissions, however,195 the Crown did submit that I would
be satisfied that Mr Macdonald did inform Edward Obeid or Moses Obeid that a
new coal release area incorporating Cherrydale Park had been created, and
that it would be included in a forthcoming EOI process for the grant of an EL,
after which steps were taken in earnest by Moses Obeid to purchase Donola
and Coggan Creek, the properties adjoining Cherrydale Park. In support of that
submission the Crown relied upon what was said to be the stark and otherwise
inexplicable coincidence between the commission by Mr Macdonald of the first,
second and fifth acts of misconduct (successive acts of misconduct which, on
the Crown case, culminated in the creation of the Mount Penny Coal Release
Area which encompassed Cherrydale Park by mid-June 2008) and the decision
by Moses Obeid and his brothers Gerard Obeid and Paul Obeid to retain Mr
Chris Rumore, solicitor, in late June 2008 to act for them on the purchase of
193
MFI 181 p 109 – see discussion about this body of evidence later at par 510 and following.
194
Cf. the generalised submission in the Crown’s written closing submissions that Mr Macdonald’s meeting
and telephone calls with Edward Obeid and Moses Obeid allows for the inference to be drawn that “there was
communication regarding the object of the conspiracy” – MFI 181 pars 30(k) and (l).
195
MFI 181 par 298.
5KIPGFD[#WUV.++
the neighbouring properties and generally to provide commercial legal advice

as to the structure of a landholders alliance in a proposed joint venture with a
coal mining company. In large part, the force of the Crown’s submission
depends on whether I am satisfied that the Crown has established that Mr
Macdonald’s dealings with the Department in May and June 2008 were acts of
wilful misconduct committed by him in furtherance of the conspiracy which, on
the Crown case, was forged no later than 9 May 2008 (when the first act of
misconduct was committed).
291 If I am not satisfied that such acts of misconduct as can be attributed to Mr

Macdonald in his dealings with the Department in May and June 2008 (being
the first, second and fifth acts of misconduct) were committed by him pursuant
to the conspiracy alleged because, for example, there remains a reasonable
possibility that he acted in that way for purposes extrinsic to the conspiracy, or
for any other reason, the Crown has failed to establish Mr Macdonald wilfully
misconducted himself as the Minister in the course of his dealings with the
Department at that time, then, even were it open for me to find that Mr
Macdonald shared information with Edward Obeid or Moses Obeid or another
member of the Obeid family about the inclusion of Cherrydale Park and its
surrounds in a new coal release area at Mount Penny, the Crown case would
likely fail unless the sharing of that information, taken together with all the
evidence relied upon by the Crown to prove the existence of the conspiracy
beyond reasonable doubt, is capable of supporting proof of the existence of the
conspiracy by 9 May 2008.
The Shepherd fact: Mr Macdonald’s knowledge of the Obeids’ ownership of

Cherrydale Park
292 As noted above, the Crown also accepts that since Mr Macdonald’s knowledge
that the Obeid family owned property near Mount Penny in the Bylong Valley
(Cherrydale Park) is a fact that is indispensable to proof of the existence of the
conspiracy it must be proved beyond reasonable doubt.
293 To elaborate, the Crown accepts that it must prove beyond reasonable doubt
that Mr Macdonald knew of the rural holdings of the Obeid family in the Bylong
Valley situated near Mount Penny as a fact fundamental to proving that Mr
5KIPGFD[#WUV.++
Macdonald committed the first and second acts of misconduct in breach of his
duty of impartiality for the improper purpose alleged.
294 The Crown also accepts that it must prove Mr Macdonald had that knowledge
when he caused Wiles Map 1 and Wiles Map 2, showing the potential coal
reserves in the Bylong Valley, including those proximate to Mount Penny, to be
provided to the Obeids (the fourth act of misconduct), and that he had that
same knowledge when he directed the DPI that the potential open cut coal
resource depicted in Wiles Map 2 be reduced to a small coal release area in
the east, thereby resulting in the creation of the Mount Penny Coal Release
Area which encompassed Cherrydale Park (the fifth act of misconduct).
295 Finally, the Crown also accepts that Mr Macdonald’s knowledge that the
Obeids owned a rural property in the Bylong Valley near Mount Penny
(Cherrydale Park) is fundamental to proving the remaining sixth, seventh,
eighth and ninth acts of misconduct if the Court is considering whether Mr
Macdonald committed each of those acts of misconduct in breach of his
Ministerial duty of impartiality because they were committed by him knowing
that the Obeid family owned property in the area of Mount Penny. Even were
the Court to confine its consideration to whether, in the commission of those
acts of misconduct, Mr Macdonald breached his duty of confidentiality,
knowledge that the Obeids owned Cherrydale Park was also inherent in
proving he committed those acts of misconduct for the improper purpose
alleged.
The significance of the eight acts of misconduct to proof of the Crown case
296 In respect of some of the eight acts of misconduct, the underlying conduct is in
dispute. The allegation that Mr Macdonald “directed” the Department to create
a smaller area comprising the eastern portion only of the potential open cut
area depicted on Wiles Map 2 (the fifth act of misconduct); the allegation that
Mr Macdonald provided or arranged for the Obeids to receive Wiles Map 1 and
Wiles Map 2 (the fourth act of misconduct); the allegation that Mr Macdonald
provided information about the timing of the public launch of the EOI process
(the sixth act of misconduct); the allegation that Mr Macdonald provided
Edward Obeid, Moses Obeid or another member of their family with the list of
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companies to be invited to participate in the EOI process (or the information

that list contained) (the seventh act of misconduct); and the allegation that Mr
Macdonald provided Edward Obeid, Moses Obeid or another member of the
Obeid family with the page headed “Medium Coal Allocation Areas and
Schiavo Map 3 (the eighth act of misconduct) are all in that category.
297 In respect of other alleged acts of misconduct (namely, the first and second
acts of misconduct, together with the fifth act of misconduct which falls in both
categories) what is in dispute is Mr Macdonald’s intention in doing what the
evidence establishes he did in his dealings with the Department, being conduct
which (through his counsel) he embraced as exemplifying the proper and
principled discharge of his role and responsibilities as Minister for Mineral
Resources in the public interest. That conduct included his requests for
information from the DPI, including information about the volume of coal
resources in the area of Mount Penny, in his pursuit of the inclusion of
additional small to medium coal release areas in the proposed EOI process.
298 It is the accused’s case that the Crown has failed to establish that what Mr
Macdonald did in his dealings with the Department in May and June 2008 in
connection with what was ultimately designated by the Department as the
Mount Penny Coal Release Area, was for the improper purpose of favouring or
advancing the interests of the accused and/or their family and associates, in
the sense that “but for” that improper purpose he would not have acted in that
way.
299 In advancing that submission, both Mr Neil and Mr Martin submitted that there
is a clear and available hypothesis, arising on the evidence, that is inconsistent
with Mr Macdonald having committed the acts of misconduct particularised by
the Crown as the first, second and fifth acts of misconduct for the improper
purpose alleged. They submitted that the evidence establishes that Mr
Macdonald’s enquiries of the Department on 9 May 2008 as to the availability
of coal reserves in the Bylong Valley and on 14 May 2008 whether the
Department’s EL 6676 might be released to tender were entirely consonant
with, and motivated by, his ongoing commitment to advancing the interests of
5KIPGFD[#WUV.++
the people of New South Wales, by releasing further areas for coal exploration
and his enthusiasm for an EOI process to be initiated to facilitate that objective.
300 Mr Neil also submitted that even on the assumption that I am satisfied that it
was Edward Obeid’s enquiry of Mr Macdonald in early 2008 as to whether he
was aware of the DPI having any knowledge of a mine being planned by Anglo
American P/L, or its subsidiary Anglo Coal (Bylong) Pty Ltd (Anglo American
P/L)196 in the Bylong Valley197 that prompted Mr Macdonald to explore with the
Department the prospect of opening up further areas for coal exploration in the
Bylong Valley in the area of Mount Penny, that does not justify the Crown’s
characterisation of Mr Macdonald’s dealings with the Department between 9
May 2008 and 6 June 2008 as acts of misconduct committed in furtherance of
the conspiracy, even were I to find that Mr Macdonald did not adopt the best
process of pursuing those enquiries by ensuring that all potentially interested
landowners in the Bylong Valley were treated impartially to avoid the risk or
perception that one landowner had obtained an unfair advantage over others.
301 Mr Neil submitted that Mr Macdonald’s enquiries of the Department in May

2008 about coal reserves in the Bylong Valley near Mount Penny, which
logically progressed to include his dealings with the Department in June 2008
about that subject, were not capable of establishing that there was in
existence, at that time, a specific agreement to which each of the accused
were party that Mr Macdonald would misconduct himself in the way the Crown
alleges in the indictment, namely that he would intentionally do acts in
connection with the granting of an EL at Mount Penny to favour their interests
by wilfully breaching his duties of confidentiality and/or impartiality.
302 The Crown submitted that in the context of other evidence in the Crown case,
the fact that Mr Macdonald initiated enquiries of the DPI on 9 May 2008
focusing on the volume of coal reserves in the area of Mount Penny where, by
that date, the Obeids had learnt through their own enquiries that there were
196
The corporate status of those entities was the subject of limited evidence in the trial. Those entities were
referred to interchangeably as Anglo Coal, Anglo American and Anglo American Coal throughou t the trial. All
references to Anglo Coal P/L in this judgment are a reference to the relevant operations of that company or
conglomerate in New South Wales.
197
MFI 181 par 741; Exhibit AV(2) p 27 of 40.
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coal reserves in the area of Cherrydale Park 198 and in circumstances where
Edward Obeid had, on his own admission, asked Mr Macdonald for information
about whether a coal mine was planned by Anglo American P/L in the Bylong
Valley,199 allows the Court to be satisfied, as a matter of compelling inference,
that the conspiracy was in existence before 9 May 2008 and that Mr
Macdonald’s enquiries of the DPI at that time was the first act of misconduct
committed by him in furtherance of the conspiracy.
303 In the Crown’s further submission, the evidence in the trial that establishes Mr
Macdonald’s enthusiasm for the release of further coal exploration areas in
New South Wales for the revenue it would generate does nothing to undermine
me finding, having regard to all the evidence, that “but for” the improper
purpose of benefiting Edward Obeid and/or Moses Obeid and/or their family
and/or associates, he would not have made the focused enquiries of the DPI
about coal reserves in the area of Mount Penny on 9 and 14 May 2008 (the
conduct the subject of the first and second acts of misconduct). The Crown
also submitted that I would be satisfied that “but for” the same improper
purpose, Mr Macdonald would not have “directed” the Department on 6 June
2008 to excise from the potential open cut coal resource represented in Wiles
Map 2 a small coal release area comprising only the eastern portion of that
large area, including the precise area where Cherrydale Park was located (the
conduct the subject of the fifth act of misconduct).
304 It is the Crown’s further and allied submission that Mr Macdonald’s coordinated
acts of misconduct in his direct and indirect dealings with the Department in
May and June 2008, (that is, the conduct comprehending the first, second and
fifth acts of misconduct as particularised) when considered with all the
evidence in the Crown case, including the conduct comprehended by the
balance of the eight acts of misconduct as particularised, will compel the
further finding that each of the eight acts of misconduct, as particularised, were
committed by Mr Macdonald pursuant to an agreement of the specific kind
alleged in the indictment and in furtherance of achieving the object of that
agreement.
198
Exhibit AV(2) pp 9-10 of 40.
199
Exhibit AV(2) p 27 of 40.
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What does the Crown need to establish were Mr Macdonald’s acts of

misconduct (as particularised) and to what standard of proof?
305 Subject to the Court giving itself a Shepherd direction as concerns Mr
Macdonald’s knowledge of the Obeids’ rural holdings at Mount Penny in the
Bylong Valley before it would be open to find Mr Macdonald misconducted
himself in the specific ways the Crown has particularised its case, a deficiency
in the evidence supporting proof of one or more of the eight acts of misconduct
does not, as a matter of law, lead to a finding that the existence of the
conspiracy of the specific kind alleged in the indictment is not proved. That
follows because, as a matter of law, proof of the existence of the conspiracy (of
the object and scope alleged in the indictment) does not depend upon me
being satisfied that Mr Macdonald committed all eight particularised acts of
misconduct. Equally, Mr Macdonald’s participation in the conspiracy does not
depend upon proof that the eight acts of misconduct were overt acts committed
by him in furtherance of the conspiracy charged.
306 I accept, and direct myself accordingly, that the Crown may prove its case
against each of the accused even were I to find deficiencies in the evidence
relied upon by the Crown to prove some of the eight particularised acts of
misconduct, whether because the Crown has not satisfied the “but for” test in
respect of some of them or because those acts of misconduct which I am
satisfied qualify as breaches of the substantive offence of misconduct in public
office because they constitute a breach of Mr Macdonald’s duty of
confidentiality and/or impartiality, I am not satisfied were committed in
furtherance of the conspiracy alleged but for some purpose extrinsic to it.
307 Again, as a matter of strict legal reasoning, in order that an individual act of
misconduct, as particularised, is available to the Crown as evidence probative
of guilt, I need only be satisfied that it was committed by Mr Macdonald in
furtherance of the conspiracy alleged as a matter of rational inference, either
from the facts led in proof of the events underlying that particular act of
misconduct (including proof that the act was committed by Mr Macdonald for
the improper purpose alleged) and/or as a matter of rational inference from
other acts of misconduct I am also satisfied are established by the evidence.
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308 That said, the nature and extent of any deficiency in proof of one or more of the
acts attributed to Mr Macdonald as acts of misconduct alleged by the Crown to
have been committed by him in furtherance of the conspiracy, may give rise to
a reasonable doubt as to whether the Crown has proved the conspiracy
charged.
309 Finally, and again subject to directing myself that because Mr Macdonald’s
knowledge of the location of the Obeids’ rural holding situated near Mount
Penny is indispensable to proof of the improper purpose alleged and, for that
reason, needs to be proved beyond reasonable doubt, none of the eight
particularised acts of misconduct need to be proved beyond reasonable doubt.
310 It was, however, common ground at the trial that, if I am not satisfied that the
evidence allows for a finding that Mr Macdonald committed any of the eight
acts attributed to him by the Crown as acts of misconduct, the Crown’s case
against all three accused must fail.
The significance of the date by which the conspiracy was in existence
311 In the course of Ms Francis’ closing submissions, I raised the question whether
verdicts of guilty might be returned on the indictment were I satisfied that a
conspiracy of the specific kind alleged in the indictment was forged within the
timeframe alleged (that is, after 1 September 2007 but before 1 January 2009)
but that it was not forged (that is, not in existence) until after 9 May 2008, being
the time at which, on the Crown case, the first act of misconduct was
committed by Mr Macdonald in furtherance of a conspiracy in existence before
that date.
312 That issue arose following Mr Martin’s focused submissions on the evidence
that related to whether the Crown had established the first, second and fifth
acts of misconduct, and in the context of Ms Francis’ submission that there was
no evidence that by 9 May 2008 Edward Obeid intended to enter into an
agreement “whereby he knew and adhered, by knowledge and intent, that Mr
Macdonald would misconduct himself seriously [so as to warrant criminal
punishment]”.200
200
T 3820 – The aspect of Ms Francis’ submission bracketed in the extract quoted refers to the issue of the
final or fifth element of the offence of misconduct in public office. I have since resolved, adverse to Ms Francis’
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313 Mr Martin submitted that the evidence supported the rational possibility that as
at 9 May 2008 the DPI was well advanced in identifying the release of
unallocated coal reserves in the Bylong Valley, including in and around Mount
Penny, and on their own initiative. He submitted that many months prior to Mr
Macdonald’s focused enquiry of the Department as to the volume of coal
reserves in the area of Mount Penny in the Bylong Valley, sent on his behalf
via email on 9 May 2008 by Mr Gibson, his Deputy Chief of Staff, (the conduct
subject first act of misconduct), the Department was involved in that process at
Mr Macdonald’s direction and urging. In Mr Martin’s submission, the Crown’s
reliance on Mr Gibson’s email of 9 May 2008 and a further email he sent on 14
May 2008, also on the Minister’s behalf enquiring as to whether the DPI would
release to tender an EL it held in the Bylong Valley,201 as related acts of
misconduct carried out in furtherance of the conspiracy being the genesis of
what became the Mount Penny Coal Release Area and its inclusion in the EOI
process for the issue of an EL at Mount Penny was, on a proper analysis of the
evidence, unsupported and misguided.
314 Those submissions prompted me to raise a number of questions for the

consideration of the parties.
315 Initially a question that was exercising my thinking at that time was the
approach I might take (or the approach it was open for me to take) in my
deliberations to verdict were the Crown to fail to establish that Mr Macdonald
wilfully misconducted himself in his dealings with the DPI on 9 and 14 May
2008 and then later on 6 June 2008 in connection with the issue of an EL for
what would later become designated as the Mount Penny Coal Release Area,
that is, were I not satisfied the first, second and fifth acts of misconduct were
established.
316 I identified a related question as to the approach I might take in the event that
the Crown did establish that Mr Macdonald’s dealings with the Department in
May and June 2008 constituted acts of misconduct (because what he did was
in breach of his Ministerial duty of impartiality) but the Crown failed to establish
submission, that it is not a matter that the Crown needed to prove that Edward Obeid knew or appreciated
(see earlier at par 60 and following).
201
EL 6676.
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that Mr Macdonald would not have misconducted himself in that way were it
not for the improper purpose alleged.
317 In either event, it appeared to me to follow that even if Mr Macdonald’s

dealings with the DPI in May and June 2008 constituted substantive acts of
Ministerial misconduct as a matter of law, the Crown would not have
established that they were acts committed by him in furtherance of the
conspiracy alleged.
318 That analysis provided the context in which a more focused question
presented: what approach might I take, or what approach was open for me to
take in my deliberations to verdict, if the Crown failed to establish that the first,
second and fifth acts of misconduct, as particularised, were committed in
furtherance of the conspiracy but if I was persuaded that one or more of the
remaining five acts of misconduct were committed for the improper purpose
alleged in the indictment and as acts in furtherance of the conspiracy alleged.
319 That question was raised directly for the consideration of the parties in the
following way.202
320 Were I satisfied that by 7 July 2008 Mr Macdonald had provided Wiles Map 2
to Edward Obeid, Moses Obeid or a member of their family as a source of
confidential information concerning the potential open cut resource in the
Bylong Valley in breach of his duty of confidentiality and for the improper
purpose alleged (inter alia, because I was satisfied that Wiles Map 2 retained
its confidential status as at that date and that it was produced and discussed at
some length at the second Wentworth Hotel meeting), and were I satisfied that
Mr Macdonald provided Wiles Map 2 knowing that the Obeids owned a rural
property (Cherrydale Park) in the Bylong Valley in the area of Mount Penny
and knowing that the Department was considering creating a new coal release
area at Mount Penny, and were I also satisfied that on 9 July 2008 Mr
Macdonald provided Moses Obeid with a list of companies that might be invited
to participate in an EOI process for the grant of an EL at Mount Penny
(information which was also confidential) and that he provided it for the same
improper purpose would proof of those two acts of misconduct (particularised
202
T 3823.
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as the fourth and seventh acts of misconduct) allow me to find the existence of
the conspiracy alleged proved beyond reasonable doubt, not on the basis that
the agreement was forged as at 9 May 2008, but forged sometime after 16
June 2008, after the Mount Penny Coal Release Area had been designated by
the DPI for inclusion in the EOI process for the granting of an EL.
321 The Crown was invited by me to address that question, with leave, the Crown
having concluded its closing submissions before the issue crystallised. Counsel
for Edward Obeid and Moses Obeid were also invited to consider the question.
322 After the Crown was given the opportunity to take instructions and consider its
position, I was informed that the Crown did not propose to take up the invitation
to advance any submission responsive to the question I posed:203
CROWN PROSECUTOR CALLAN: First, the Crown does not accept that it
has made time of the essence insofar as the date by which the alleged
conspiracy was formed was not averred; rather, the indictment, as your
Honour has observed, alleges between dates.
HER HONOUR: Yes.
CROWN PROSECUTOR CALLAN: What your Honour has raised is, in effect,
a reasoning to verdict on the basis of a narrower case, specifically a narrower
time frame, not an expanded or different case.
HER HONOUR: Correct.
CROWN PROSECUTOR CALLAN: In that respect, the Crown considers the
current situation distinguishable from cases such as Mok.
HER HONOUR: I read Mok over lunch.
CROWN PROSECUTOR CALLAN: In Agius [2011] NSWCCA 119, Johnson J
makes the point at paragraph 51 by reference to the English decision in Doot
that:
“Although the essence or gist of conspiracy is the unlawful agreement
made by the conspirators, and not the acts done under it, conspiracy
as a crime is committed wherever and whenever it is shown that the
agreement, the unlawful concert, exists between the conspirators.”
At paragraph 61, Johnson J observes:
“It is not necessary in the usual case of conspiracy where a succession
of overt acts are relied upon to establish the date when, or the date
before which, the conspiratorial agreement was made. The
prosecution", his Honour observed, "is not bound to define the exact
time at which the agreement began or the exact act which marked its
inception.”
203
T 3828-3829.
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That being the case, your Honour, the Crown recognises the way it has put its
case here. Namely, the Crown has defined the date by which it says the
conspiratorial agreement was struck, namely 9 May 2008.
The Crown position is that your Honour would reason to verdict on the basis of
the case as presented by the Crown, most recently in the Crown's closing
submissions. That is, that by 9 May 2008, there was an agreement between
the accused that Ian Macdonald would committee misconduct in pursuit of the
potential for exploration of coal at Mount Penny and that inference arises from
the whole of the evidence in the case, including the nine alleged acts of
misconduct.
It is in those circumstances and for these reasons that the Crown does not
take up your Honour's invitation to make submissions on the point your Honour
raised just before lunch. And that is, as your Honour suggested, the Crown
might say and is saying we're running the case we opened and closed and we
do not want to be heard on whether or not your Honour can return a verdict on
any other basis.
323 Despite the breadth of the timeframe in the indictment within which the Crown
alleged the conspiracy was current and continuing, as is clear from the
exchange extracted above, the Crown sought only to maintain the case that
verdicts of guilty be returned against each of the accused on the basis that by 9
May 2008, at the latest, Mr Macdonald had agreed with each of the accused
that he would misconduct himself as Minister for Mineral Resources pursuant
to the specific agreement alleged in the indictment, and further, that by that
date, at the latest, each of the accused had intentionally agreed to participate
in that agreement.
324 The question that survives the position the Crown has taken is whether proof of
the first, second and fifth acts of misconduct, as particularised, that is, what are
alleged by the Crown to be acts of misconduct committed by Mr Macdonald in
his dealings with the DPI in May and June 2008 in furtherance of an existing
conspiracy, are factual findings that are fundamental to proving a conspiratorial
agreement of the scope and purpose alleged in the indictment, even if not
indispensable to proof of its case in the Shepherd sense.
325 The only fact indispensable to proof of the conspiracy charged is that Mr
Macdonald knew that the Obeids owned property in the Bylong Valley situated
near Mount Penny. That being the case, since the Crown does not seek a
conviction against any of the accused unless I am satisfied that the conspiracy
charged in the indictment was forged before Mr Macdonald’s dealings with the
Department in May and June 2008 (on the Crown case, conduct which, viewed
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collectively, was directed to ensure the Department would designate a new

coal release area in the Bylong Valley to include Cherrydale Park over which
an EL might be granted), if I am not persuaded that Mr Macdonald’s conduct at
that time constituted acts of wilful misconduct for any reason (including that the
“but for” test is not satisfied), it would follow that the Crown has not proved the
case it has elected to prosecute to verdict and verdicts of not guilty must be
returned.
326 That is, I accept, as I must in the adversarial setting of this trial, that the Crown
does not seek a conviction of any of the accused unless I find the conspiracy
alleged in the indictment was forged on or before 9 May 2008.
327 Although it might be open to proceed to verdict on the basis that the evidence
supports a finding that the agreement was in existence before 9 May 2008 but
that there were no proven acts of misconduct committed by Mr Macdonald
pursuant to that agreement until after the Mount Penny Coal Release Area,
over which an EL might be granted, was designated, that approach is only
open to me if there is evidence to support it. That is, it is not enough to find Mr
Macdonald misconducted himself by providing confidential information to the
accused or a member of their family after 16 June 2008 (the earliest he could
have known that the Mount Penny Coal Release Area had been designated)
and to reason to the conclusion that the conspiracy alleged must have
predated that event by six weeks in order that the case the Crown has
determined to prosecute remains open. There must be a sound evidential basis
to support the Crown case if it is interpreted by me in that way.
328 Ms Francis’ submission responsive to the question I raised was to the effect
that given the way in which the Crown has elected to frame the indictment and
conduct its case, including by serving a Revised Statement of Particulars in the
course of the trial,204 it is not for me as the tribunal of fact in the course of
deciding what of the primary facts alleged by the Crown are established and
what facts I might be left in doubt about, to seek to give meaning to the case
204
MFI 134/1.
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the Crown has elected to prosecute so as to allow for verdicts of guilty to be

returned.205
329 Ms Francis emphasised that the Crown has consistently sought to prove its
case against each of the accused referable to the agreement the subject of the
conspiracy having been forged no later than 9 May 2008. She emphasised that
the nomination of that date is not arbitrary. On the Crown case, it is that
particular date that is the genesis of the Mount Penny Coal Release Area being
designated by the DPI as a new coal release area, a factor which, in her
submission, is intrinsic to the acts of misconduct which the Crown alleged were
committed within the scope of the agreement that Mr Macdonald would
misconduct himself, namely, by committing acts in connection with the granting
of an EL at Mount Penny over that coal release area.
330 Ms Francis submitted, correctly, that it was not put in the Crown’s opening or
particularised during the trial, including in the Crown’s closing address that
Edward Obeid might have entered into an agreement with Mr Macdonald and
Moses Obeid at some time after an agreement had been forged between Mr
Macdonald and Moses Obeid, or that any of his proven conduct suggested
participation in an agreement forged in a different timeframe.
331 Mr Neil submitted that were I to proceed to verdict on the basis of finding only
that Mr Macdonald provided confidential information to Moses Obeid, for
example Wiles Map 1 and Wiles Map 2 and the list of companies proposed to
be invited to tender in the EOI process (or the information on that list), that is,
were I satisfied that Mr Macdonald committed only the fourth and seventh acts
of misconduct, verdicts of not guilty against each of the accused would be
inevitable.
332 Mr Neil submitted that even were I satisfied that the confidential information
comprised in the maps and the list of companies was provided by Mr
Macdonald and received by Moses Obeid or another member of the Obeid
family and then used by Moses Obeid in his dealings with Mr Brook from July
2008 to exploit the potential to contract with a mining company who might be
granted an EL over Mount Penny, the Crown will have failed to prove the
205
T 3820.
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agreement at the high level of generality comprehended by the way the

conspiracy is framed in the indictment, being the case the Crown has opened
and has sought to prove. Mr Neil submitted that for me to proceed to conviction
on the basis of a “granular” and “specific” agreement206 to share confidential
information is a different conspiracy from that alleged. He submitted were I to
take that approach it would be contrary to principle 207 and in breach of
fundamental dictates of fairness in the adversarial setting of a criminal trial.
333 It is not for me to enquire of the Crown why it has taken the approach it
resolved to take in prosecuting its case. My task is to determine whether I am
satisfied of the existence of the conspiracy alleged beyond reasonable doubt,
an essential feature of which is that it was an agreement in existence as at 9
May 2008 and in which each of the accused agreed to participate by that date.
334 In those circumstances, given the way the Crown prosecutes its case to prove
the existence of the conspiracy of the scope and object alleged as at 9 May
2008, I direct myself that if I am to find as a fact that the conspiracy was in
existence by that date, I need to be satisfied, having regard to all the evidence
capable of bearing directly and indirectly on the question (including such of the
remaining acts of misconduct which are established and which are also
capable of informing that question), that the first act of misconduct is
established, and that it was an act of misconduct committed by Mr Macdonald
pursuant to the conspiracy alleged.
Edward Obeid’s participation in the conspiracy (on the Crown case)

335 In closing written submissions, the Crown set out the evidence it relied on to
prove Edward Obeid’s participation in the conspiracy beyond reasonable doubt
and, to the extent necessary and permissible as reasonable evidence of his
participation, to permit it to rely upon the co-conspirators rule, as reflected in
the operation of s 87(1)(c) of the Evidence Act, in further proof of that fact. That
evidence is as follows:208
206
T 3837.
207
R v Mok (1987) 27 A Crim R 438.
208
MFI 181 par 32 (a)-(l).
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 Edward Obeid’s “central involvement” in the purchase of Cherrydale Park, his

involvement in the management of that property and his stated intention to live
there in his retirement.
 The evidence that, in September 2007, Edward Obeid told Mr Macdonald
about the purchase of Cherrydale Park, prompting Mr Badenoch, Mr
Macdonald’s Chief of Staff, to send the email about the water licences in
operation at that property.
 The evidence that, in May 2008, Edward Obeid asked Mr Macdonald for
information about coal reserves at Mount Penny. What Mr Macdonald is
alleged to have done responsive to that enquiry is the conduct the subject of
the first act of misconduct.
 The location of copies of Wiles Map 1 and Wiles Map 2 during the Locaway Pty
Limited (Locaway P/L) search warrant, together with an inference that Edward
Obeid, Moses Obeid, or another member of the Obeid family received those
maps from Mr Macdonald (the fourth act of misconduct).
 The evidence that Edward Obeid contacted Justin Kennedy Lewis shortly
before Mr Lewis’ company purchased Coggan Creek, one of the two properties
adjoining Cherrydale Park.
 Edward Obeid’s “central involvement” in attempting to change the ownership of
Cherrydale Park from Locaway P/L to United Pastoral Group Pty Limited (UPG
P/L) “in order to distance the Obeid family from property ownership at Mount
Penny”.
 Edward Obeid’s meetings and telephone calls with Mr Macdonald in the period
September 2007 to January 2009, from which, the Crown submitted, “a strong
inference can be drawn as to communication regarding the object of the
conspiracy”.
 Edward Obeid’s telephone calls with Moses Obeid during the period
September 2007 to June 2009 from which, the Crown submitted, “a strong
inference can be drawn as to communication regarding the object of the
conspiracy, and pursuit of resulting financial benefit”.
 The admissions made by Edward Obeid in October 2009 to the journalist Tracy
Ong.
 The admissions made and lie told by Edward Obeid in May 2010 to the
journalist Anne Davies.
 The admissions made by Edward Obeid during the execution of the Locaway
P/L search warrant in November 2011.
 The admissions made by Edward Obeid in December 2012 to the journalists
Leo Shanahan and Katherine Jiminez.
336 That body of evidence generally reflected the overt acts and/or declarations the
Crown relied upon as proof of the existence of the conspiracy and Edward
Obeid’s participation in it.
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337 The following particulars of the Crown case, as they relate to Edward Obeid,
were not specifically addressed by the Crown in closing submissions as having
been established by the evidence (tracked changes and footnotes omitted): 209
(d) Between 17 June and 23 July 2008, Mr Edward Obeid and/or Mr Moses
Obeid received information from Mr Macdonald that the EOI process for Mt
Penny was to commence at the end of July 2008.
That is, consequent upon what the Crown particularised as the sixth act of
misconduct committed by Mr Macdonald.
(e) On or after 7 July 2008, Mr Edward Obeid, Mr Moses Obeid or another

member of the Obeid family, received from Mr Macdonald:

[That is, consequent upon what the Crown particularised as the seventh act of
misconduct committed by Mr Macdonald.]
(f) On or after 23 July 2008, Mr Edward Obeid, Mr Moses Obeid or another

member of the Obeid family, received from Mr Macdonald:
(i) the page with the heading ‘MEDIUM COAL ALLOCATION AREAS’;
(ii) a map titled ‘Proposed Coal Release Areas for EOIs’ prepared by Mr
Fred Schiavo dated 21 July 2008 (Schiavo Map 3).
[That is, consequent upon what the Crown particularised as the eighth act of
misconduct committed by Mr Macdonald.]
(g) Between 27 November 2008 and 13 January 2009, Mr Edward Obeid

and/or Mr Moses Obeid received information from Mr Macdonald that the EOI
process was to be (or was) reopened to allow the ‘White Group’ of companies
(including Cascade Coal P/L) to apply. [That is, consequent upon what the
Crown particularised as the ninth act of misconduct committed by Mr
Macdonald.]
209
MFI 134/1.
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Moses Obeid’s participation in the conspiracy (on the Crown case)

338 In closing written submissions, the Crown set out the evidence it relied on as
evidence of Moses Obeid’s participation in the conspiracy also so as to permit
the Crown to invoke the co-conspirators rule reflected in the operation of
s 87(1)(c) of the Evidence Act in proof of that fact, if necessary:210
 Based on research conducted in about April 2008, Moses Obeid became

aware of coal at Mount Penny;
 Copies of Wiles Map 1 and Wiles Map 2 were located during the Locaway P/L
search warrant, together with an inference that Edward Obeid or Moses Obeid
or another member of his family received these maps from Ian Macdonald,
being the fourth act of misconduct;
 Moses Obeid received information as to the timeframe for the launch of the
EOI for Mount Penny, comprising the sixth act of misconduct;
 As at 30 June 2008, Moses Obeid (on an introduction by Ian Macdonald) had
discussed the prospect of a mining project with Mr Fang;
 Moses Obeid received the list of companies from Ian Macdonald on 8 July
2008, being the seventh act of misconduct;
 Moses Obeid received further information about the EOI process (comprising a
page headed “Medium Coal Allocation Areas”, and Schiavo Map 3) from Ian
Macdonald, being the eighth act of misconduct;
 Moses Obeid’s pursuit (with his brothers Paul Obeid and Gerard Obeid) of
financial gain as a result of the prospect of Mount Penny being included in the
EOI, through:
○ his pursuit of suitable purchasers for Donola (the Triulcio family) and
Coggan Creek (the Fitzhenrys, Tianda Resources (Australia) Pty
Limited and Mr Fang, and Mr Lewis);211
○ his instructions to Mr Rumore in relation to the purchase of Coggan

Creek and Donola, and a joint venture with a coal company; and
○ his dealings with Mr Brook in relation to a joint venture with Monaro

Mining NL.
 Moses Obeid’s use of Andrew Kaidbay as an intermediary to deal with Monaro

Mining NL, as a “dummy director” of various Obeid companies including UPG
P/L and in seeking to shift ownership of Cherrydale Park to UPG P/L to
distance the Obeids from Mount Penny;
210
MFI 181 par 30 (a)-(l).
211
Ross and Rocco Triulcio, the Fitzhenrys and Mr Lewis were associates of Moses Obeid.
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 Moses Obeid obtained information from Ian Macdonald in January 2009 that
the EOI had been reopened to allow the White Group to participate, being the
ninth act of misconduct;
 Moses Obeid’s direct negotiations with Cascade Coal P/L for a joint venture in
relation to the Mount Penny coal exploration area;
 Moses Obeid’s meetings and telephone calls with Ian Macdonald during the
period September 2007 to June 2009 from which a strong inference can be
drawn that they were communicating regarding the object of the conspiracy,
and pursuit of resulting financial benefit;
 Moses Obeid’s telephone calls with Edward Obeid during the period
September 2007 to January 2009 from which the same strong inference can be
drawn;
 Moses Obeid’s lies to journalist Ms Davies in May 2010 about the
circumstances of Mr Lewis purchasing Coggan Creek; and
 Moses Obeid’s admissions and lies to journalists Mr Shanahan and Ms
Jimenez in December 2012.
The further directions by which I am bound in my deliberations to verdict
339 In considering the vast array of issues in dispute in the trial, and whether such
of them that I am satisfied are established by the evidence, either directly or
indirectly, support the inference of guilt for which the Crown contends, I am
conscious, and direct myself accordingly, against the risk of inverting the
burden of proof. That is, I am conscious, and direct myself accordingly, that the
accused bear no legal or evidential burden of establishing any fact or series of
facts (or circumstances) that might either prove their innocence or which might
raise a reasonable doubt as to their guilt.
340 Neither do the accused bear the burden of establishing any reasonable
hypothesis consistent with their innocence, whether on the basis of the facts or
circumstances that I am satisfied are established by the evidence or on some
other basis fairly arising on the evidence. In discharge of the legal burden of
proving the guilt of each of the accused beyond reasonable doubt after full
weight is given to the facts and circumstances established by the evidence, the
Crown is obliged to negative any reasonable possibility that there remains a
reasonable, that is a rational, hypothesis that is inconsistent with the guilt of the
accused, or any one of them.212
212
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46], [48], [50], [51]; Barca v The Queen
(1975) 133 CLR 82; [1975] HCA 42 at 104; Peacock v The King (1911) 13 CLR 619; [1911] HCA 66 at 661.
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341 I also give myself the further direction that each of the accused is entitled to
have the question of their guilt determined by the evidence admissible against
them. Subject to the Crown’s entitlement to rely upon s 87(1)(c) of the
Evidence Act (to which I have already referred) and the Crown’s reliance upon
the admissions made by each of Edward Obeid and Moses Obeid to journalists
between 2009 and 2012, admitted pursuant to s 81 of the Evidence Act213
(and, for that reason, admissions made outside the currency of the conspiracy
and therefore not susceptible to admission under s 87(1)(c)), and subject to
what the Crown relied upon as “consciousness of guilt” lies told by each of the
three accused (also only admitted against the particular accused alleged to
have told “the lie”), and to the limit on the use the Crown was entitled to make
of Moses Obeid’s conduct in what was described as the entrepreneurial phase
of the conspiracy,214 the evidence adduced in the Crown case was available to
the Crown in proof of the guilt of each of the accused.
342 That said, given the specific nature of the offence framed in the indictment and
the way the Crown has sought to prove the guilt of each of the accused of that
offence in the case it has elected to prosecute, I am conscious, and direct
myself accordingly, that even were I satisfied that the evidence establishes that
Mr Macdonald committed some acts of wilful misconduct as Minister for
Mineral Resources in the Executive Government of the State of New South
Wales, by acting in breach of his Ministerial duties and obligations of
confidentiality and/or impartiality in connection with the granting of an EL at
Mount Penny and for the improper purpose of benefiting Edward Obeid and/or
Moses Obeid or members of their family or associates, unless the evidence
also establishes that he acted in that way pursuant to an agreement with at
least one of Moses Obeid or Edward Obeid that he should do so, the Crown
accepts that verdicts of not guilty must be returned against each of the
accused.
343 Accordingly, I further direct myself that in the event that I am satisfied the
Crown proves that Mr Macdonald did wilfully misconduct himself as Minister for
Mineral Resources by doing acts in connection with the granting of the Mount
213
214
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Penny EL in breach of his Ministerial duties and obligations, and I am also

satisfied that he acted in that way for the improper purpose of benefiting
Edward Obeid and/or Moses Obeid and/or their family members and/or
associates because he knew that the Obeids owned property in the area of
Mount Penny215 and, further, that he would not have acted in that way “but for”
that improper purpose216 unless the Crown proves, beyond reasonable doubt,
that at least one of Edward Obeid or Moses Obeid entered into an agreement
with Mr Macdonald that he would conduct himself in that way, Mr Macdonald
must also be acquitted. The indictment does not include any allegation that Mr
Macdonald committed the substantive offence of misconduct in public office.
344 I further direct myself that even were I satisfied that Mr Macdonald did
misconduct himself in the office he held as Minister for Mineral Resources by
committing, for example, the acts of misconduct particularised as the first and
second acts of misconduct concerning coal reserves in the area of Mount
Penny, and even were I satisfied that either or both of Edward Obeid and
Moses Obeid knew or suspected that Mr Macdonald had also directed the DPI
to create the Mount Penny Coal Release Area which encompassed Cherrydale
Park for their benefit (that is, assuming the fifth act of misconduct is
established), that would not be sufficient to support verdicts of guilt against any
of the accused. I would also need to be satisfied that by the time Mr Macdonald
was dealing with the DPI in the way comprehended by the first, second and
fifth acts of misconduct, either or both of Edward Obeid and Moses Obeid had
intentionally entered into an agreement with Mr Macdonald that he would
misconduct himself (to their advantage) in the specific way the Crown alleges,
that is, in connection with the granting of an EL at Mount Penny and for the
improper purpose of benefiting either or both of them and/or their family
members and/or their associates.
345 Even were the Crown to prove that Edward Obeid and/or Moses Obeid
“thought” that Mr Macdonald was providing them with valuable information
(even confidential information) as a favour from a friend and colleague, the
Crown case against each of the accused must fail unless the Crown can
215
That fact being established beyond reasonable doubt.
216
Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 at [84].
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exclude the reasonable possibility that Mr Macdonald provided that ‘inside’

information not because Edward Obeid or Moses Obeid agreed that he should
(knowing and intending that Mr Macdonald would commit the offence of
misconduct in public office by doing so), but because Mr Macdonald chose to
provide that information in the belief or hope that it would (or might be) of
benefit to the Obeids - whether he was motivated to do so by friendship with
Edward Obeid as a political ally or to ingratiate himself with Edward Obeid as a
person he perceived as powerful or influential at a time when Mr Macdonald’s
political career was nearing its end.217
346 In addition, even were the Crown to establish that either or both of Edward
Obeid and Moses Obeid were aware that the information Mr Macdonald was
providing from time to time concerning the designation of a new coal release
area in the Bylong Valley in the area of Mount Penny and its inclusion in a
forthcoming EOI tender process would give them a commercial advantage as
landowners in their dealings with a coal mining company who might apply (or
who had applied) for an EL over that area, and that Mr Macdonald gave them
the information for that reason, each of the accused must be acquitted of the
offence charged unless the Crown proves beyond reasonable doubt that
Edward Obeid and/or Moses Obeid received that information from Mr
Macdonald (and that he provided it) in accordance with the specific agreement
alleged in the indictment to which they were each a party, namely an
agreement that he would wilfully breach his Ministerial duties and obligations of
impartiality and/or confidentiality in connection with the granting of an EL at
Mount Penny and for the improper purpose of benefiting either or both of them
and/or their family and/or associates.
347 I also remind myself of the direction given earlier that if the Crown is to prove
the guilt of both Edward Obeid and Moses Obeid, the Crown must establish
beyond reasonable doubt that in entering into the conspiracy they each knew
or intended that by Mr Macdonald agreeing with them that he would
intentionally do acts in connection with the granting of an EL at Mount Penny
for the improper purpose alleged, he would wilfully, that is, knowingly,
misconduct himself in breach of his duties and obligations of impartiality as a
217
MFI 181 p 7.
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Minister and/or in breach of his duties and obligations of confidentiality in that

same capacity.
348 Again for emphasis, I direct myself that the Crown will not have proved the guilt
of any of the accused by evidence that goes no further than establishing that
Mr Macdonald in fact wilfully misconducted himself in his dealings with the DPI
in May and June 2008 in breach of his duty of impartiality (the conduct the
subject of the first, second and fifth acts of misconduct), or that he in fact
communicated or otherwise provided confidential information in connection
with the granting of an EL at Mount Penny in repeated breach of his Ministerial
duties of confidentiality and impartiality (the conduct the subject of the
remaining five acts of misconduct as particularised). Neither will the Crown
prove the guilt of the accused by evidence that goes no further than
establishing that Moses Obeid, Edward Obeid or another of their family
members were at one time in possession of confidential information that Mr
Macdonald had provided to them, or that he caused to be provided to them,
which they then sought to exploit to their commercial benefit in their dealings
with a mining company (or other entity associated with a mining company) who
might apply for an EL at Mount Penny.
349 Finally, and again for emphasis, in addition to proving that Mr Macdonald
wilfully misconducted himself in his dealings with the DPI (in the manner
particularised as the first, second and fifth acts of misconduct) and that he also
wilfully misconducted himself by communicating confidential information
concerning the granting of an EL at Mount Penny, and that information was
received by Edward Obeid, Moses Obeid or other members of the Obeid
family, knowing that it was confidential (in the manner particularised by the
remaining five acts of misconduct), the Crown must also prove that Mr
Macdonald misconducted himself in one or more than one of those ways
pursuant to a pre-existing agreement he intentionally entered into no later than
9 May 2008, with either or both of Moses Obeid and Edward Obeid that he
would wilfully misconduct himself in the office he held as Minister for Mineral
Resources in the Executive Government of New South Wales in connection
with the granting of an EL at Mount Penny for the improper purpose of
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advantaging either or both of his co-accused and/or members of their family

and/or their associates.
350 I am also conscious, and I direct myself accordingly, that it is not my role or
function, whether in directing myself as the judge of law or making factual
findings as the tribunal of fact, to endeavour to find a case of criminal
culpability in any of the accused. My role and function is to determine whether
the Crown has proved the criminal culpability of each of the accused of the
conspiracy charged in the indictment beyond reasonable doubt in the case that
the Crown elected to prosecute at trial.
351 Neither is it my role or function as the tribunal of fact to seek to improve or

perfect, or change in any way, the way the Crown has sought to prove its case.
As a matter of fairness to the accused, I am obliged to consider whether the
Crown has proved the guilt of each of them referable to the evidence adduced
by the Crown at trial and the case ultimately put by the Crown in closing
submissions. That is important in this trial, as it is in criminal trial process
generally. It is a fundamental principle inherent in an adversarial system of
criminal justice that it is for the Crown to prove the guilt of an accused on the
case it prosecutes beyond reasonable doubt. I have already noted that the
Crown amended the particulars of its case in the course of the trial by deleting
the third act of misconduct by reason of what it perceives as a deficit in the
evidence and amending the fourth and eighth acts of misconduct to reflect the
evidence that was adduced.218 In proof of the fifth act of misconduct, the Crown
also adapted its case in closing submissions to accommodate the evidence
given by Mr Gibson, Mr Macdonald’s Deputy Chief of Staff, for the first time
and without notice to the Crown.
352 In this trial, I also direct myself that it is not open to me to moderate, in any
way, the Crown’s obligation to adduce evidence of each of the legal
requirements fundamental to proof of guilt of each of the accused of the
conspiracy charged.219 I am also conscious, and I direct myself accordingly,
that in discharge of the role and function I have in this trial as the judge of the
law, it is not for me to seek to improve or moderate the legal requirements of
218
219
See par 156.
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the offence the Crown has preferred on indictment and upon which each of the
accused was ultimately arraigned. Accordingly, I am bound by the law that
applies in this State as concerns the elements of the conspiracy charged and
the legal requirements for proof of the guilt of each of the accused of that
offence where the unlawful act the subject of the conspiracy alleged that Mr
Macdonald would wilfully commit misconduct in public office in breach of his
Ministerial duties and obligations in a particular respect; namely, in connection
with the granting of an EL at Mount Penny concerning the interests of Edward
Obeid, Moses Obeid, their family and associates and that “but for” the improper
purpose of advancing those private interests, he would not have agreed to
commit that offence.220
353 For the reasons already given, and again for emphasis, I direct myself that I am
also obliged to determine whether the Crown has proved the guilt of Mr
Macdonald (or either or both of Edward Obeid or Moses Obeid) of the offence
charged on the indictment, by confining myself to the question whether the
Crown has proved the case it confirmed in the course of closing arguments as
the only basis upon which convictions were sought, namely a conspiracy that
consisted of an agreement forged no later than 9 May 2008 (and in which each
of the accused agreed to participate by that date) that Mr Macdonald would
misconduct himself by doing acts in connection with the granting of an EL at
Mount Penny in breach of his Ministerial duties of impartiality and
confidentiality for the improper purpose alleged in the indictment.
354 As the tribunal of fact, it is for me to determine what facts and circumstances
are established by the evidence, and to identify what facts and circumstances,
proof of which I might be left in doubt about. As I have already discussed, 221 it
is only Mr Macdonald’s knowledge of the Obeids’ ownership of a rural property
(Cherrydale Park) situated near Mount Penny in the Bylong Valley that has
legal quality of a fact indispensable to proof of guilt and, therefore, a fact the
Crown has the burden of establishing beyond reasonable doubt. Each of the
accused contends the Crown has failed to prove that fact.
220
Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32
221
See pars 292-295.
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355 The Crown also bears the legal obligation of negating any reasonable
hypothesis arising on the evidence that is inconsistent with the guilt of the
accused. Each of the accused also contends the Crown has failed to prove its
case, inter alia, for that reason. They each contend, and in different ways and
with different emphasis, that the evidence admits of a range of alternate
hypotheses for what I will be satisfied the evidence reveals about the conduct
of Mr Macdonald, as Minister for Mineral Resources, in connection with an EL
which was ultimately granted over a coal release area in the Bylong Valley
which encompassed land owned or controlled by the Obeid family, on the one
hand, and the conduct of Edward Obeid and Moses Obeid as landowners and
developers on the other, both within the indictment period and, so far as Moses
Obeid is concerned, after 31 January 2009.222
356 The burden and standard of proof imposed upon the Crown in proving the case
it elected to prosecute obliged the Crown in its closing submissions to identify
the evidence which allows me to be satisfied beyond reasonable doubt that the
only rational inference for what the Crown submitted were Mr Macdonald’ s
successive and interrelated acts of proven and wilful misconduct (or those acts
which the Crown is able to prove to a standard of comfortable satisfaction are
acts of misconduct in the relevant sense) is that he acted pursuant to an
agreement with either or both Edward Obeid and Moses Obeid that he would
wilfully misconduct himself in his role of Minister, since in the way the Crown
has sought to prove its case it is only Mr Macdonald’s proven act(s) of wilful
misconduct which are capable of establishing the existence of the conspiracy
of the scope and object alleged by the Crown in which each of three accused is
alleged to have participated.
357 In closing submissions, the Crown argued that I will be satisfied beyond
reasonable doubt of the existence of the conspiracy of the scope and object
alleged, and the participation by each of the accused in that conspiracy, as a
matter of overwhelming inference from the confluence of various facts and
222
EL 7406, (the Mount Penny EL) was ultimately granted to Mt Penny Coal Pty Limited (Mt Penny Coal P/L), a
wholly owned subsidiary of Cascade Coal Pty Limited (Cascade Coal P/L), on 21 October 2009. See Exhibit A pp
4615-4641.
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circumstances established by the evidence adduced in the trial and the

combined weight of that evidence.
358 On the Crown case, that body of evidence includes what each of the accused
said and did from time to time during the currency of the conspiracy and in
furtherance of achieving their common objective (the overt acts particularised
and set out in full above and other evidence eloquent of their participation in
the conspiracy), and what the Crown submitted was the opportunity they had
during that time to keep each other informed of the progress being made to
achieve their shared objective.
359 Again as noted above, the Crown also relied upon the steps taken by each of
the accused, in different ways, to conceal the existence of the conspiracy both
during its currency and after the object of the agreement had been fully
executed as part of the available evidence to establish the existence of the
conspiracy. That conduct included what the Crown alleges were lies told by
each of the accused as evidencing a consciousness of their guilt as
participants in the conspiracy alleged.
The documentary evidence tendered in the trial, in summary

360 A series of interrelated events or occurrences before, during and after the
conspiracy are established by various objective sources of evidence
concerning proof of those events or occurrences, including in the documents
tendered both by the Crown in Exhibit A, the documents supplementing Exhibit
A,223 including documents tendered by the accused,224 and by reference to the
evidence of witnesses concerning those events or occurrences.
361 None of the accused went into evidence.
362 Exhibit A, comprising the Crown Tender Bundle, comprises approximately

4,173 pages of documentary evidence dating from 8 April 1999 to August
2013, arranged chronologically in four volumes.
363 Following objection at the pre-trial stage by each of the accused to a large
body of evidence in the proposed Crown Tender Bundle concerning a
223
Crown Exhibits B-AX.
224
Accused Exhibits 1-48.
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succession of interrelated events and commercial transactions of various kinds

engaged in or entered into after 31 January 2009 extending through to May
2012, that is, after the indictment period (described as the global objection) that
evidence was admitted in the case against all three accused as to the
existence of the conspiracy alleged, and in the case against Moses Obeid as to
his participation in it (see R v Macdonald; R v Edward Obeid; R v Moses Obeid
(No 1) [2019] NSWSC 322).
364 Objection was also taken during the pre-trial stage to the tender of a
succession of emails of 9 and 10 November 2010 passing between Mr
Sassine, a chartered accountant who acted from time to time on behalf of
members of the Obeid family (including on behalf of the Obeid Family Trust No
1 and Obeid Family Trust No 2); Mr Chalabian, a partner in the legal firm Lands
Legal; Mr Grant, a partner and tax consultant with PKF Australia, a firm of
chartered accountants and business advisers; and Paul Obeid, Moses Obeid’s
brother and Edward Obeid’s son.225 Subject to my decision in R v Macdonald;
R v Edward Obeid; R v Moses Obeid (No 2) [2019] NSWSC 775, that body of
evidence was not admitted.
365 Objection was also taken by Moses Obeid to the tender of a body of evidence
relating to the purchase and ownership of Cherrydale Park and enquiries made
in relation to water licences in operation on that property. Subject to my
decision in R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 3) [2019]
NSWSC 898, that body of evidence was admitted.
366 The documents which comprise Exhibit A include emails and documents,
including maps attached to emails generated within the DPI. It also includes
correspondence between the DPI and the Minister’s office, correspondence in
the form of ongoing advice from Mr Rumore, who was retained to act for
Gerard Obeid and Paul Obeid on 23 June 2008 and later that month jointly be
Moses Obeid and his brothers, including handwritten notes of conferences they
attended and draft documents prepared by him, and a large number of
contractual and other documents generated by other solicitors representing
225
Crown Tender Bundle (Exhibit A) pp 5749-5755 and 5765-5766.
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various contracting parties in the entrepreneurial phase of the events with

which the trial was concerned.226
367 Exhibit A also includes correspondence between Mr Gardner Brook, Senior

Vice President with Lehman Brothers, and others, including his superiors at
Lehman Brothers; officers of Monaro Mining NL (some of which was forwarded
or copied to Moses Obeid); and Cascade Coal P/L as Mr Brook endeavoured
to broker an arrangement first between Monaro Mining NL and Voope P/L, a
company controlled by Moses Obeid, and later between Cascade Coal P/L and
Buffalo Resources P/L, a company also controlled by Moses Obeid, in the
event that either company was granted the EL at Mount Penny in the EOI
process in which both companies submitted an application for the grant of an
EL over a number of the eleven coal release areas that were the subject of that
closed tender process.
368 Exhibit A also comprised evidence of diarised meetings and minuted

conferences between various individuals.
369 Most of the evidence in Exhibit A was not in dispute. What was in dispute were
the circumstances in which some of the documents were created and sent,
including what they are capable of revealing about the state of knowledge (or
the attitudes and motivations) of the authors of those documents in resolving
the facts in issue in the trial, including legal documents or drafts of such
documents created by solicitors representing contracting parties and what
those documents revealed about the person or entity providing instructions.
370 I have endeavoured where possible in my deliberations to verdict to undertake

a broad factual analysis of the evidence in order to determine what the
interrelated events or occurrences that are established by the evidence (or the
facts foundational to proof of those events or occurrences) prove, or are
capable of proving about either the existence of the conspiracy alleged or the
participation of each of the accused in that conspiracy, or what that evidence
might support as an hypothesis inconsistent with proof of either of those facts.
226
See R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 1) [2019] NSWSC 322 at [11].
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Witnesses called in the Crown case

371 Ultimately, 38 witnesses gave evidence in the Crown case. Those witnesses
can be grouped into several categories as follows.
Parliamentary witnesses
372 Morris Iemma,227 Premier of the State of New South Wales from 3 August 2005
to 5 September 2008,228 gave evidence about the factions comprising the New
South Wales Branch of the Australian Labor Party, the roles of Mr Macdonald
and Edward Obeid within those factions, various policy issues during the time
period with which the trial was concerned, and his understanding of the scope
and import of the Ministerial Code of Conduct.
373 George Campbell,229 Luke Foley230 and Anthony Albanese,231 all key figures in
the New South Wales Branch of the Australian Labor Party at all relevant
times, gave evidence about the events which transpired at the Noble House
lunch on 20 February 2006, including discussions around Mr Macdonald’s
preselection in the upcoming New South Wales State election.232
374 Kate Boyd,233 General Counsel of the Department of Premier and Cabinet,
gave evidence about Parliamentary and election procedures and the Ministerial
Code of Conduct.
Bylong properties witnesses

375 Peter Druitt234 was the real estate agent who acted in the sale of Cherrydale
Park to Locaway P/L.
376 John Cherry235 was the vendor of Cherrydale Park.
377 John Rodd236 was a stock and station agent who advised members the Obeid
family on the purchase of Cherrydale Park.237
227
T 216-265.
228
Exhibit G p 2.
229
T 266-271.
230
T 273-283.
231
T 297-302.
232
As to that evidence see R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 5) [2019] NSWSC 1489. I
ultimately did not find that evidence probative of any the facts in issue in the trial, where the issue of Mr
Macdonald’s motive was ultimately of little relevance.
233
T 303-312.
234
T 285-296.
235
T 455-496.
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378 Stewart Adlington238 was the real estate agent who acted in the sale of Coggan
Creek.
379 Ted O’Brien239 was the vendor of Coggan Creek.
380 Chris Rumore240 was a solicitor specialising in commercial property

transactions and a partner of the firm Colin Biggers and Paisley. He was
initially retained by Gerard Obeid and Paul Obeid on 23 June 2008, and from
30 June 2008 by Moses Obeid, also to advise in relation to the purchase of
rural properties in the Bylong Valley under a Heads of Agreement with a group
of property developers. Mr Rumore ultimately rendered advice on a range of
matters including the negotiation of a joint venture agreement with the mining
company expected to be awarded the Mount Penny EL and the drafting of
various contractual documents to advance and protect his clients’ interests.
DPI witnesses
381 Richard Sheldrake,241 Alan Coutts,242 Brad Mullard,243 Fred Schiavo,244
Graham Hawkes,245 Robert Larkings,246 Leslie Wiles247 and Julie Moloney248
were executive officers or staff members of the DPI in 2008 and 2009. They
were involved in various ways in the preparation and release of the EOI
process in respect of eleven small to medium coal release areas, including
Mount Penny.
382 William Hughes249 was the Chair of the EOI Evaluation Committee in relation to
the EOI process.250
383 Kevin Fennell251 was the probity auditor for the EOI process.
236
T 497-520.
237
T 497.
238
T 1231-1254.
239
T 1258-1275.
240
T 1924-2100.
241
T 2322-2338, 2376-2400.
242
T 317-453.
243
T 575-1127.
244
T 523-574.
245
T 1129-1165.
246
T 1167-1178, 1757-1769.
247
T 2164-2229.
248
T 2236-2300.
249
T 2121-2163.
250
T 2121-2122.
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Ministerial staff
384 Adam Badenoch252 was Mr Macdonald’s Chief of Staff in 2007 and 2008.
385 Jamie Gibson253 was Mr Macdonald’s Deputy Chief of Staff in 2007 and 2008.
He was promoted to Chief of Staff in January 2009. During 2008, Mr Gibson
attended meetings with Mr Macdonald and DPI officers about the EOI process.
He received a range of documents regarding that process from the DPI on Mr
Macdonald’s behalf.
Monaro Mining NL witnesses

386 Gardner Brook254 was an investment banker with Lehman Brothers. He was
introduced to Moses Obeid, Gerard Obeid and Paul Obeid in July 2008. From
2008 to 2011, Mr Brook dealt variously with Monaro Mining NL (including by
making the initial approach to that company on behalf of the Obeids) and, later,
Cascade Coal P/L in relation to the pursuit of the grant of an EL at Mount
Penny in the Bylong Valley on behalf of Moses Obeid.
387 Mart Rampe255 was the CEO and Executive Director of Monaro Mining NL in
2007 and 2008.
388 Warwick Grigor256 was the Chairman and a director of Monaro Mining NL until
his resignation in April 2009.
389 Harold Bowman257 was engaged as a consultant by Monaro Mining NL in late

2006 or early 2007 until at least late 2008. He worked previously in various
positions in the Department of Mines, the Department of Mineral Resources,
and as the Chief Executive Officer of the Coal Compensation Board until his
retirement in 2006. He also worked as a consultant to the DPI from 2006 to at
least 2009.
251
T 2109-2119.
252
T 2308-2317, 2342-2370, 2422-2452.
253
T 2454-2584.
254
T 2803-3256.
255
T 1534-1733.
256
T 1782-1920.
257
T 1417-1532.
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390 Greg Barns258 was a non-executive director of Monaro Mining from 30 July
2008 to 2 February 2012.259
Officers of the Independent Commission Against Corruption (NSW) (ICAC)

391 Ultimately only three ICAC officers gave evidence in the trial.
392 Tim Fox260 was the Chief Investigator at ICAC and the officer-in-charge of
Operation Jasper, the investigation into various events including those events
the subject of the trial. He executed a search warrant at the Locaway P/L
premises on 23 November 2011.
393 Ron Hillier261 was the property officer during the execution of the search
warrant at the Locaway P/L premises on 23 November 2011. 262
394 Lisa Stockley263 was an investigator who reviewed documents seized during
the search warrant executed at the Locaway P/L premises.
Expert witnesses
395 Candice McKerrell264 is a handwriting expert. She prepared a report at the
request of ICAC dated 30 January 2013 that pertained to the investigation
which included the events the subject of the trial.265
396 Laurie Whiddon266 is a cartography expert. He was engaged by ICAC in 2013

to produce maps of an area broadly known as the Bylong Valley as part of the
investigation which included the events the subject of the trial. 267
Others
397 Peter Fitzhenry268 and Nicole Fitzhenry269 were Moses Obeid’s neighbours in
2007 and 2008.
258
T 1748-1755.
259
T 1748.
260
T 3514-3520.
261
T 2709-2726.
262
Exhibit A pp 7580-7582; Exhibit AU.
263
T 2678-2696.
264
T 3450-3472.
265
Exhibit AB; Exhibit AC; Exhibit AJ.
266
T 3480-3493.
267
T 3480; Exhibit AJ; Exhibit AX.
268
T 1281-1299.
269
T 1300-1325.
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398 Greg De Ross270 was the General Manager of Tianda Resources (Australia)
Pty Limited (Tianda Resources P/L) from December 2007 until December
2009.271
399 Rodney Pryor272 was an analyst at Lehman Brothers and a colleague of Mr

Brook.
400 Anne Davies273 was a journalist with the Sydney Morning Herald. On 20 May
2010, she published an article entitled “Coal down below - how rich is his
valley?”274 which related to the ownership of Cherrydale Park by the Obeid
family and prospective coal in the area.
The primary issues in dispute arising from the evidence at trial
401 The great bulk of the evidence at trial concerned events within the timeframe
particularised in the indictment, namely between 1 September 2007 and 31
January 2009. The evidence also includes some events before 1 September
275
2007 and events three years after the conspiracy was executed.
402 The length of final submissions by the Crown and the accused276 and the
detailed analysis they each gave to the evidence as it relates to either proving
or raising a doubt about guilt highlights the extent and breadth of the facts in
dispute. I have endeavoured to resolve all factual disputes that I regard as
fundamental to the Crown proving the guilt of the accused beyond reasonable
doubt. I have also endeavoured to identify and resolve the conflict between the
Crown and the accused as to whether the facts that I am satisfied are
established by the evidence, and the inferences legitimately drawn from those
facts, are capable of proving guilt as the ultimate fact in issue beyond
reasonable doubt or whether, in light of those findings, I am left with a
reasonable doubt as to guilt, either because I am not satisfied of the existence
of the conspiracy alleged beyond reasonable doubt or, if I am satisfied of that
270
T 1345-1380.
271
Exhibit 35.
272
T 1382-1403.
273
T 3559-3573.
274
Exhibit AQ.
275
In R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 1) [2019] NSWSC 322, I ruled the Crown s hould
be permitted to adduce evidence of events after the conspiracy had been executed in proof of the existence of
the conspiracy and, as against Edward Obeid and Moses Obeid, their participation in it.
276
MFI 181, 190, 191 and 192; T 3619-3988.
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fact, I am left in doubt as to whether the Crown has proved the participation of
at least one of the accused Edward Obeid or Moses Obeid in that
conspiracy.277
403 The interrelated events or occurrences that are established by the evidence,
including the facts foundational to proof of them), when ordered
chronologically, also provides the context in which a number of primary issues
in dispute in the trial arise, some of which I have already identified. They
include, but are not limited to, whether the Crown has established that Mr
Macdonald misconducted himself as Minister for Mineral Resources between 9
May 2008 and 31 January 2009 by committing one or more of the eight
particularised acts of misconduct relied upon by the Crown to prove the
existence of the conspiracy, and if he did misconduct himself in the manner
alleged on any of the occasions particularised by the Crown, whether he did so
in furtherance of the conspiracy alleged. If Mr Macdonald misconducted himself
as Minister in connection with the granting of an EL at Mount Penny but for
reasons unconnected with an agreement with Edward Obeid or Moses Obeid
that he should do so then, whatever his motivations might have been for acting
in that way, and irrespective of whether his conduct might be a criminal breach
of his Ministerial duties and obligations, his conduct will not provide an
evidentiary basis to infer the existence of the conspiracy.
404 That same broad analysis of a number of interrelated events or occurrences

that I am satisfied are established by the evidence also allows me to make an
informed assessment as to whether I am satisfied that at the time Mr
Macdonald is alleged to have entered the conspiracy by agreeing to commit
misconduct in public office in connection with the granting of an EL at Mount
Penny, he knew that the Obeids owned a rural property (Cherrydale Park)
situated near Mount Penny in the Bylong Valley. As I have already
emphasised, the Crown accepts that proof of that fact is indispensable to
proving that Mr Macdonald misconducted himself as alleged, and for the
improper purpose alleged. Viewed in that way, the Crown accepts that it is a
277
Were I satisfied of the existence of the conspiracy in the sense that I am satisfied Mr Macdonald did not act
unilaterally but in concert with others, there could be no verdict of guilty returned on the in dictment unless I
were persuaded he was complicit in the conspiracy with either or both of Edward Obeid and Moses Obeid.
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fact which, being indispensable to proof of the existence of the conspiracy,

must be proved beyond reasonable doubt.278
405 Moses Obeid’s relationship with Mr Brook and the capacity in which Mr Brook
acted in his dealings with Monaro Mining NL from July 2008, and in his
dealings with Cascade Coal P/L in 2009 (both companies having lodged an
application for the grant of an EL at Mount Penny in the EOI process initially
publicly launched on 9 September 2008 but extended on 9 January 2009),
provides the context in which a number of critical issues arise. The resolution
of those issues will likely inform the question whether the Crown is able to
prove that the conspiracy alleged in the indictment was forged before 9 May
2008 and, if that fact is proved beyond reasonable doubt, it may also serve to
identify the participants in that conspiracy.
406 Those issues include, in particular, what, if anything, Moses Obeid told Mr
Brook in July 2008 about:
(a) the pending EOI process for the grant of an EL at Mount Penny
(b) the location of coal reserves beneath land owned or controlled by
his family at or near Mount Penny and coal resources adjacent or
“contiguous” to that area
(c) the mining companies which were to be invited to participate in
the EOI process for the granting of an EL over that land
(d) to the extent that Moses Obeid told Mr Brook about any of those
things, the source of his information.
The significance of the pre-existing relationships between the accused to
proof of the Crown case
407 The Crown submitted that the existence of the conspiracy and the participation
of each of the accused in it were proved, in broad and non-exhaustive terms,
by their pre-existing relationships which, in the Crown’s submission, gave
context to what they each said and did in furtherance of achieving the shared
object of the conspiracy.279
408 It is the Crown case that the various configurations of the relationships
between the three accused that existed prior to September 2007 converged
278
279
T 3628.
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when they agreed that Mr Macdonald would misconduct himself in the manner
alleged in the indictment.
409 The closeness of the relationship between Edward Obeid and Moses Obeid as
father and son was not in issue. The nature and extent of the relationship
between Mr Macdonald and Edward Obeid, on the one hand, and between Mr
Macdonald and Moses Obeid, on the other hand, was the subject of
considerable contention in the trial.
Other relevant relationships involving Edward Obeid and Moses Obeid as

members of a family: trusts, directorships, family companies and beneficial
interests
410 Historically and during the currency of the conspiracy, the Obeid family
managed their business interests through a series of family trusts and
companies.
411 The Crown tendered a document entitled “Trusts Summary”.280
412 In the joint interview with Edward Obeid and Moses Obeid conducted by the
journalists Mr Shanahan and Ms Jiminez on 18 December 2012 (the
Shanahan/Jiminez interview), Edward Obeid explained that he “started” the
family trust in order to manage the distribution of profits and dividends from his
family business.281
413 Edward Obeid was the appointor of the Obeid Family Trust No 1 settled and
executed on 13 May 1974 282 and the Moona Plains Family Trust settled and
executed on 25 October 1994.283 Moses Obeid was a specified beneficiary of
the Obeid Family Trust No 1 284 and a primary beneficiary of the Moona Plains
Family Trust.285 He was also a beneficiary of the Obeid Family Trust No 2
settled on or about 14 May 2002 with SS Nominees No 1 as Trustee. 286
280
Exhibit B.
281
282
Exhibit A pp 6586-6614; Exhibit B.
283
284
285
286
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414 The Elbeg Unit Trust was settled under Deed on 6 August 2008 and executed
by Mr Rumore for Geble Pty Limited (Geble P/L) as Trustee.287 The
beneficiaries of that trust are its Unit Holders, one of which is UPG P/L as
Trustee for the Moona Plains Family Trust. The significance of both the Elbeg
Unit Trust and UPG P/L will be addressed later.
415 The Crown also tendered a document entitled “Companies Summary”. 288
416 The Companies Summary set out a comprehensive history and profile of all
corporate entities referred to in the trial drawn from ASIC records. In addition to
a number of corporate entities owned or controlled by members of the Obeid
family, the Companies Summary also included entities owned or controlled
from time to time by people associated with the Obeid family, including
associates or business advisors.
Obeid Corporation Pty Ltd

417 On 9 November 1978 Edward Obeid was appointed as a director and ordinary
shareholder of Smatera Pty Ltd, which became Obeid Corporation Pty Ltd
(Obeid Corporation P/L) on 11 May 1979. The two issued shares were held by
Edward Obeid and his wife. Edward Obeid transferred his share to Paul Obeid
on 23 May 2012. On 25 February 1987, Moses Obeid was appointed as a
director, together with his brothers, Damian Obeid and Paul Obeid. Edward
Obeid’s directorship ceased on 20 August 1993.289
Locaway P/L
418 Locaway P/L was registered on 20 October 1994. On 15 February 1995, Paul
Obeid, Edward Obeid Jr, Damian Obeid, Moses Obeid and Gerard Obeid were
appointed as directors. Gerard Obeid’s directorship ceased on 24 August
2005.290
419 During the Shanahan/Jiminez interview, Moses Obeid described Locaway P/L
as “the families [sic] rural properties entity” and the “main family rural
company”.291
287
288
Exhibit C.
289
Exhibit C.
290
Exhibit C.
291
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420 As at 23 November 2011, the date of the execution of the search warrant at the
premises of Locaway P/L by ICAC, Moses Obeid occupied an office space at
those premises.292 While it does not appear from the “mud map” prepared by
Mr Fox upon the execution of the search warrant that Edward Obeid had a
designated office space at those premises, he was present during the search
warrant and, as is apparent from the related video footage, there was
apparently nothing unusual about his presence,293 despite not being a director
or otherwise a named associate of Locaway P/L.294
421 During the Shanahan/Jiminez interview, Edward Obeid and Moses Obeid
jointly volunteered details about the purchase and management of Cherrydale
Park by Locaway P/L, including knowledge of running costs, the logistics
involved in operating a rural property, the work undertaken to run cattle on the
property,295 and the details of the vendor finance used to purchase the
property.296 Although the interview reveals a degree of closeness between
Edward Obeid and Moses Obeid as father and son, with them talking over one
another,297 correcting one another,298 taking over from one another in
answering a question put to them by one of the journalists,299 asking clarifying
questions of one another300 and contributing to what the other was saying,301
the Crown did not specifically rely on those aspects of the interview to establish
the nature of their relationship.302
The relationship between Mr Macdonald and Edward Obeid as Parliamentary

colleagues
422 Mr Macdonald and Edward Obeid were both longstanding members of the New
South Wales branch of the Australian Labor Party.303
292
Exhibit AE p 7576.
293
Exhibit AU(1).
294
Exhibit C; Exhibit AV(2) p 6.39 of 40.
295
Exhibit AV(2) p 6.01-6.03 of 40.
296
297
Exhibit AV(2) pp 3.37-3.40 and 4.17-4.23 of 40.
298
Exhibit AV(2) pp 2.10-2.14 and 6.37-6.40 of 40.
299
Exhibit AV(2) p 13.4 of 40.
300
301
302
See later when the Crown does submit the interview reveals admission against interest made by each of
Edward Obeid and Moses Obeid and deliberate lies told with a consciousness of guilt by Moses Obeid.
303
Exhibit G.
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423 Mr Macdonald held the following positions over the course of his political
career:
(1) A Member of the Legislative Council between 19 March 1988 and 7

June 2010, having been successively elected at the New South Wales
State elections in March 1988, May 1991, March 1999, and March
2007.
(2) A Member of the Executive Council from 2 April 2003 to 5 June 2010
(except from 5-7 September 2008).
(3) Minister for Agriculture and Fisheries for a period of time commencing in
2003.304
(4) Minister for Mineral Resources between 3 August 2005 and 17
November 2009 (except from 5-7 September 2008), Minister for Mineral
and Forest Resources between 8 December 2009 and 5 June 2010,
Minister for State Development between 2 April 2007 and 5 June 2010
and Minister for Primary Industries between 3 May 2004 and 17
November 2009.305
(5) He also became the Minister for Energy following his re-election in April
2007, retaining that position throughout 2008 until at least Mr
Badenoch’s resignation.306
424 Edward Obeid held the following positions over the course of his political
career:
(1) A Member of the New South Wales Legislative Council between 12

September 1991 and 10 May 2011.
(2) Minister for Mineral Resources and Minister for Fisheries between 8
April 1999 and 2 April 2003.307
425 Relevantly, for the purposes of the trial, Mr Macdonald held the positions of
Minister for Mineral Resources, a Member of the Legislative Council and a
Member of the Executive Council throughout the currency of the conspiracy.
Edward Obeid held the position of Member of the Legislative Council
throughout the same period.
426 Ms Boyd, General Counsel of the Department of Premier and Cabinet, gave
evidence concerning the formal process by which members of the Executive
Council and Ministers of the Crown are appointed in New South Wales:
304
T 250.
305
Exhibit G p 3.
306
T 2309.
307
Exhibit G p 3.
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… the appointment of Members of the Executive Council is done by the

Governor of New South Wales under commission which is issued under seal.
That commission is then retained by the Department of Premier and Cabinet,
forms part of the Register of Patents held by that department. Ministerial
portfolios are also commissioned in that way, so a formal commission will be
given to the Minister under seal and then a record of that is kept by the
department.308
427 Ms Boyd also gave evidence that after a general election, even if the party in
government is restored, the Premier resigns to ensure that the Ministry is
dissolved allowing for new Ministerial appointments. When that occurs, the
incoming Premier will advise the Governor on the formation of the cabinet
through an Executive Council minute. The Governor will allocate the
commissions accordingly.
428 Ms Boyd gave evidence that Ministerial portfolio allocation is the responsibility
of the Premier, who also determines the administrative responsibilities imposed
upon Ministers.
429 Legislative responsibilities are allocated to Ministers under the Administration

of Acts pursuant to an order made by the Governor under the Constitution Act.
A Minister to whom responsibility for the administration of an Act of Parliament
has been vested is legally authorised to exercise the power conferred on “the
Minister” in the Act where “the Minister” appears in the legislation.
430 Mr Iemma, the Premier of New South Wales from 3 August 2005 to
5 September 2008,309 gave evidence in the Crown case.
431 He gave the following evidence about Mr Macdonald’s performance and

attitude as a Minister:
Q. During your time as Premier, what was your view of Mr Macdonald’s

efficacy… in the role of Minister for Primary Industries?
A. That he was a well performing Minister, he was energetic in his duties.
When Cabinet met in rural and regional New South Wales, his office stood out
as one that organised the events and visits with stakeholders. His office stood
out as one of the more organised, well disciplined offices that delivered.
Q. When you say energetic, enthusiastic, can you give an examples of what
you mean by that?
A. He came across as someone that embraced his portfolios, got across the
308
T 304.
309
Exhibit G p 2.
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detail and he spoke with genuine enthusiasm on the issues and the policies in
his portfolios.310
432 In cross-examination by Mr Martin, Mr Iemma gave the following evidence:
Q. You have made the observation in your evidence that Mr Macdonald was
well performing and energetic in his duties?
A. Yes.
Q. His duties as Minister?
A. Yes, and prior to that.
Q. And prior to that. You regarded him as a competent and energetic Minister?
A. Yes.
Q. Would you agree that you would describe him as someone of energy and
capacity?
A. Yes.
Q. It is the case that you entrusted him with major projects?
A. Yes.
…
Q. It is also the case that Mr Macdonald had a reputation for consulting
stakeholders and industry groups within his economic development and
regional development, all his portfolios?
A. Yes.311
433 Mr Gibson, Mr Macdonald’s Deputy Chief of Staff in 2008, described the
relationship between Mr Macdonald and Edward Obeid as Parliamentary
colleagues in the following way:
… the nature of the interactions were good. They were colleagues and
parliamentarians. They certainly had a casual contact around the Parliament,
to my observation … both in the chamber and without, and they did catch up
beyond that …312
Mr Macdonald and Edward Obeid: Factional allies
434 The Crown submitted that the closeness of the relationship between Mr
Macdonald and Edward Obeid prior to September 2007 is revealed by their
political affiliations and the way in which they forged a political alliance as
factional leaders within the New South Wales Labor Party.
435 The Crown submitted that I would be satisfied, as a matter of inference from
the forging of that political alliance and the friendship that developed between
the two men as a result, that Mr Macdonald considered himself indebted to
Edward Obeid for what the Crown submitted was Edward Obeid’s patronage of
310
T 220.
311
T 238-9.
312
T 2459.
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him within Caucus and in Edward Obeid’s dealings with Mr Iemma as Premier.
The Crown submitted that this sense of “indebtedness”, amongst a range of
other motivations, including Mr Macdonald’s friendship with Edward Obeid, is
capable of explaining why, as Minister for Mineral Resources, Mr Macdonald
agreed to wilfully and repeatedly (if necessary) misconduct himself to advance
the financial interests of Edward Obeid and his family and/or associates.
436 The parties addressed the issue of motive in their closing submissions. It is a
complex issue, if for no other reason than, as the Crown concedes, in contrast
to Edward Obeid and Moses Obeid, no financial benefit has been shown to
accrue to Mr Macdonald from his agreement to wilfully breach his Ministerial
duties and obligations, and there is no evidence of any collateral advantage of
any kind, or any promise of an advantage of any kind that might explain why,
on the Crown case, he agreed to act as he has been shown to have acted.
While the question of what might have motivated Mr Macdonald to engage
criminally with Edward Obeid and Moses Obeid in the way contended for by
the Crown is intriguing, it is, in my view, unhelpful to address it before a
detailed analysis of whether the evidence is capable of proving the existence of
the conspiracy charged beyond reasonable doubt.313
437 I will return to consider the motive for what the Crown submitted was the
criminal complicity of each of the accused in the conspiracy charged later in my
deliberations to verdict.
438 Mr Iemma gave evidence about the emergence of factions within the New
South Wales Labor Party.
439 Mr Iemma gave evidence that in the 1970s and 1980s, under the premiership
of Mr Neville Wran AC QC, division arose within the New South Wales branch
of the Australian Labor Party in the context of who should be appointed to the
position of Deputy Premier. This conflict gave rise to subdivisions in the left
313
The Noble House lunch on 20 February 2006, at which Mr Macdonald’s preselection in the upcoming New
South Wales State election was discussed, was the subject of a published judgement. See R v Macdonald; R v
Edward Obeid; R v Moses Obeid (No 5) [2019] NSWSC 1489. I ultimately did not find that evidence probative of
any the facts in issue in the trial, where the issue of Mr Macdonald’s motive was ultimately of little relevance.
5KIPGFD[#WUV.++
wing of the Labor Party with two groups emerging, notionally referred to as the
“hard left” and “soft left”.314
440 In the early 1990s, the right wing of the New South Wales branch of the
Australian Labor Party also split into two factions.315 One of the factions, known
as “the Trogs”, was generally understood as not being supportive of the then
Premier, Mr Bob Carr, and having a “fractious relationship with the party office”,
while the other faction, known as “the Terrigals”, provided a support base for
Premier Carr.316 Mr Iemma explained that “the Terrigals” was the largest
grouping within the right wing and, for that reason, it exerted a controlling
influence on the right wing of the Party and, since the right wing had control of
the Caucus, “the Terrigals” effectively had control of the Caucus. 317
441 Mr Iemma identified Edward Obeid as the leader of “the Terrigals” during the
period 2005 to 2008.318 He gave evidence that, in that capacity, Edward Obeid
exercised “significant influence” within the New South Wales Branch of the
Australian Labor Party.319
442 Mr Iemma identified Mr Macdonald as a “convener”, “leader and negotiator” for

the “hard” left faction of the left wing of the Labor Party.320 In that capacity, Mr
Macdonald also had an important role representing the left faction in the right-
dominated Caucus. The core support group for the “hard” left faction was the
Australian Manufacturers Workers Union with whom Mr Macdonald had a long
association. That union provided Mr Macdonald with a power base to which he
was entitled to appeal when seeking preselection in advance of the 2007
election.321
443 Mr Albanese, who was at the time of trial a member of the House of
Representatives in the Commonwealth Parliament and Leader of the
Opposition, was also a former General Secretary of the New South Wales
Labor Party. Mr Albanese was a senior figure in the left faction of the Labor
314
T 218.
315
T 218.
316
T 218.
317
T 219.
318
T 219.
319
T 219.
320
T 239.
321
See generally the evidence of Mr Campbell at T 266-271.
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Party in New South Wales. He gave evidence that, at times, Mr Macdonald

played a key role at times in supporting “hard” left candidates for both houses
of the New South Wales Parliament.322
444 Mr Iemma gave evidence that to his observation, both during his Premiership
and earlier, Mr Macdonald and Edward Obeid had “a cordial, good relationship”
and that they “appeared to work well together”.323 He gave the following
evidence:
[In] the Upper House, they were in the same chamber. They often spoke in
support of each other. They seemed to mix well and they made it known to
their colleagues that they had respect for each other. Mr Obeid thought that Mr
Macdonald was someone that, in a factional sense, you could work well with.
That if you struck a deal with him, that it would stick. And that he was a hard-
working and energetic member of Parliament that had talent and ability. 324
445 Mr Iemma recalled that in Caucus meetings, over dinner and in general
discussion, Edward Obeid was always supportive of Mr Macdonald, inclusive of
comments of the following kind:
… Mr Macdonald was … someone who took time to get across his brief. He
spoke well in Parliament. He was across issues, particularly issues that didn’t
impact on metropolitan areas and in that there were not many in the
Government that took a strong interest in issues to do with rural and regional
New South Wales; Mr Macdonald was one that did so. He had talents in
organising. He was someone that if he gave his word and you reached an
agreement, he would stick to that. And these were positive aspects of his
character that was discussed.
…
That Mr Macdonald was someone who was worthy of promotion to more
senior positions within the Government, that his talents were best used in
more senior capacity than being a backbencher. 325
446 Mr Iemma recalled that after the State election on 24 March 2007, Edward
Obeid expressed the view that Mr Macdonald “would make a good Planning
Minister”.326
447 In cross-examination by Mr Neil, Mr Iemma confirmed that in appointing Mr

Macdonald as Minister for State Development after the 2007 election, in
particular charging him with the task of being “the face of investment in New
322
T 300.
323
T 221.
324
T 221.
325
T 222.
326
T 222.
5KIPGFD[#WUV.++
South Wales”, he had confidence that Mr Macdonald’s previous experience as

a Minister would equip him to relate well to stakeholders within the portfolio. 327
Budgetary challenges facing the Labor government in 2007-2008

448 Mr Iemma also gave evidence that in 2007 and 2008 the State Government
faced significant financial challenges.328 Upon becoming Premier in 2005, Mr
Iemma commissioned an expenditure audit. The Stokes Report was generated
as a result of that process, following which an Expenditure Review Committee
was charged with the objective of “enforcing budget objectives in relation to
departmental spending”.329
449 A number of Expenditure Review Committee Meetings were convened from

time to time to consider the progress of achieving that objective. Ultimately, a
range of recommendations were proposed to bring greater discipline to
departmental expenditure and a process established to track the
implementation of those recommendations.330 One of the recommendations
was the adoption of an efficiency dividend of 2.5% that all departments were
expected to “yield up” to bring the state budget back into balance. 331 Mr Iemma
gave evidence that the objective was to achieve a saving of approximately $6
billion in government expenditure.
450 Mr Badenoch, Mr Macdonald’s Chief of Staff in 2008, confirmed that the

Department of Primary Industries absorbed the Department of Mineral
Resources in 2004. His involvement in mineral resources was on the budgetary
side of the now merged portfolio. He explained that there were three methods
for the DPI to meet its budgetary targets: firstly, to generate additional revenue;
secondly, to reduce or cut the provision of services; and thirdly, staff
redundancies.332
451 One method of generating additional revenue was via the payment to the DPI
of significant additional financial contributions by mining companies who
successfully tendered for ELs over coal resources. An Additional Financial
327
T 263.
328
T 222.
329
T 253.
330
T 222-223.
331
T 222-223.
332
T 2345.
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Contribution (AFC) could be nominated by a company as part of its EOI

application in respect of the grant of a coal EL. AFCs were paid by mining
companies as an optional additional to the minimum financial contributions
which they were required to make as part of that process. AFCs were
assessed along with other evaluation criteria for the purpose of determining
which company would ultimately be awarded a particular EL. 333
452 In Mr Badenoch’s view, if the Department could not attract AFCs the DPI would
not have been able to meet its budgetary commitments without resorting to
further voluntary staff redundancies or cuts to services, neither of which were
desirable or, it must be thought, politically palatable. From that perspective, he
became aware of the need to stimulate the release of coal ELs to market to
generate income for the Department.334
453 Mr Iemma gave evidence that Mr Macdonald spoke with him about his ideas as
to how to meet the efficiency dividend of the Departments over which he had
Ministerial control. He gave the following evidence:
Because of the nature of [Mr Macdonald’s] portfolios and the offices are
located in regional and rural New South Wales, the adoption of measures to
reduce staff would have a disproportionate impact on the local communities
where the offices, the departmental offices were and that would have social
and political consequences and that is something that was generally agreed
to.335
454 Mr Badenoch was asked in his evidence to reflect upon the Expenditure
Review Committee meeting of 21 November 2007. In that meeting, he
confirmed that Mr Macdonald indicated that he expected to meet the 2.5%
efficiency dividend through raising AFCs from the release of further areas for
coal exploration in the 2007/2008 fiscal year and that he proposed bringing
“further large exploration licences to market through open expression of
interest processes in the 2008 to 2009 and 2009 to 2010 financial years.”336
455 It is clear from that evidence that it was Mr Macdonald’s express preference for
savings to be yielded in revenue terms rather than expenditure cuts, an
approach for which he sought Mr Iemma’s approval. Mr Iemma gave evidence
333
The significance of AFCs is set out in full at par 740 and following.
334
T 2345.
335
T 223-224.
336
T 2358.
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that one of the ideas discussed with Mr Macdonald “was to parcel up packages
of the State’s resources” and release them to market and, in that way, to derive
revenue from fees that would be paid by the mining industry “for the right to
explore and later exploit the State’s natural resources”.337
456 Mr Iemma confirmed that those plans came to fruition in the granting of the
Caroona EL followed by the granting of the Watermark EL.338 The Caroona EL
generated an Additional Financial Contribution (AFC) of $91,235,000.339 The
Watermark EL generated an AFC of $389,300,000.340
457 Dr Richard Sheldrake was the Director-General of the Department of Primary

Industries from about January 2008 to July 2009. In his capacity as Director-
General, he occasionally attended Budget Committee meetings and
Expenditure Review Committee meetings.
458 Dr Sheldrake gave evidence that upon his appointment as Director-General he

had the understanding that the DPI’s budget was in the order of $700-$750
million.341 He also agreed that a 2.5% efficiency dividend was substantial and
that searching for means to achieve that efficiency dividend was “a difficult
task” where the wages and salary component was a substantial component of
the Department’s annual expenditure.342 On the issue of the viability of AFCs
from coal ELs as a means of meeting budgetary constraints, he said:
The amount of money that flowed to the department from coal licences was
actually quite - well, it wasn’t significant in that Treasury effectively took control
of most of those funds. There was an agreed amount, if you like, of funds, but
it was relatively small. The challenge that we had was much greater and
effectively was managed by a voluntary redundancy program. 343
459 Dr Sheldrake also said that the amount which it was agreed Treasury would
allow to flow to the Department was directed to the costs of operating the
Evaluation processes for the release of coal ELs. He described it as
“effectively… a service fee. It wasn’t seen as a way of the department
337
T 223.
338
T 224.
339
Exhibit G p 5.
340
Exhibit G p 7. The significance of the granting of both ELs to the trial more generally is discussed later at
pars 737 and 887 and following.
341
T 2384.
342
T 2384.
343
T 2385.
5KIPGFD[#WUV.++
effectively funding the organisation.”344 Ultimately, Dr Sheldrake expressed his

view of the efficiency of revenue raising from the coal industry to meet the
efficiency dividend in the following answer:
Q. It is fair to say that this coal boom provided an opportunity for raising funds
for the Government and the department?
A. I think as I pointed out before, certainly the Government would have
potentially benefited, and as her Honour mentioned, the allocation then down
to individual departments came through, effectively still came through the
budget appropriations to the agencies.345
Mr Macdonald and Edward Obeid: Electricity privatisation
460 Mr Iemma also gave evidence that the challenges experienced by Mr
Macdonald in meeting the financial commitments of the departments within his
portfolios continued after the New South Wales state election in March 2007.
Those continuing challenges were a key motivator for a review into New South
Wales electricity infrastructure and whether upgrading the state electricity
infrastructure could be financed by privatisation.
461 Mr Iemma accepted the proposition put to him by Mr Martin that it was the role
of factional leaders to negotiate and, where possible, facilitate agreement on
key issues to prevent the New South Wales branch of the Australian Labor
Party from descending “into conflict and turmoil”.346
462 Mr Iemma accepted that factional leaders “would be expected to be in daily

contact, especially in crisis periods”.347 He accepted that the negotiation over
electricity privatisation in 2007 and 2008 was one such period of crisis. 348
463 The Owen Report on the issue of electricity privatisation was released in
November 2007.349 Following the publication of the Owen Report, there was
considerable opposition from some sectors of the New South Wales branch of
the Labor Party to electricity privatisation.350 What would emerge as the Labor
Party’s formal position on electricity privatisation was discussed in Cabinet over
344
T 2385.
345
T 2387.
346
T 239.
347
T 240.
348
T 244.
349
T 242.
350
T 241.
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many months. The recommendations of the Owen Report were endorsed in

Caucus and ultimately adopted by Cabinet.
464 Mr Iemma confirmed that as Minister for Energy, Mr Macdonald had “an
important role” in the consideration the government was giving to electricity
privatisation including, in particular, marshalling essential support for that
proposal from a number of unions.351 Mr Iemma agreed that during what
became the prolonged privatisation debate within Caucus, Mr Macdonald,
Edward Obeid and John Della Bosca, another prominent member of the New
South Wales Labor Party at that time, were in frequent contact by telephone
and at meetings.352 Although Mr Iemma could not specifically recall attending a
meeting on 10 April 2008 with Karl Bitar (General Secretary of the Australian
Labor Party), union leaders including John Robertson and Bernie Riordan,
together with Edward Obeid, Michael Costa and Mr Macdonald, he did recall
“many, many meetings” attended by those people.353 Mr Badenoch confirmed
Edward Obeid’s attendance at that meeting and the fact that the concerned the
issue of electricity privatisation.354
465 Mr Gibson gave evidence in similar terms confirming that Mr Macdonald, Mr

Della Bosca and Edward Obeid were in “very high frequent contact throughout
the entire privatisation period.”355
466 Mr Iemma gave evidence that there were “around a hundred” meetings over
the entire period of the privatisation debate leading up to the New South Wales
Labor State conference on 3-4 May 2008 with an increase in the frequency and
intensity of those meetings after the federal election in November 2007.356 At
the New South Wales Labor State conference, Mr Iemma, Mr Costa, Mr Tripodi
and Edward Obeid negotiated with Mr Macdonald and Mr Della Bosca in
relation to potential solutions to what had become a divisive electricity
privatisation debate.357 At that conference, the Government's policy position on
privatisation was rejected when over 700 votes were cast against the
351
T 240.
352
T 240. See for example Exhibit 27 entry 2248.
353
T 242.
354
T 2429-30.
355
T 2514.
356
T 243.
357
T 243-4.
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Government's privatisation plans with only over 100 votes cast in favour of the
plans.
467 A Caucus meeting was scheduled on 7 and 8 May 2008 to further discuss the
issue of electricity privatisation. Mr Iemma accepted that Mr Macdonald and
Edward Obeid were also heavily involved in negotiations at that time. 358
468 In the lead up to the resumption of Parliament in late August 2008, various
further meetings were held, including two meetings at Mr Iemma’s home on a
Sunday night. Those meetings were attended by Mr Macdonald, Edward
Obeid, Mr Tripodi and Mr Costa, other senior figures in the New South Wales
branch of the Australian Labor Party at that time. Those meetings resulted in a
further draft of the electricity privatisation legislation which it was proposed
would be introduced into Parliament on 21 August 2008.359 Mr Iemma gave
evidence of the perceived risk of Members, in either the soft left or hard left
factions, “cross[ing] the floor” when the legislation was tabled, giving rise to
what he described as “a continual process of discussion” around successive
rounds of “lobbying or pressuring or threats”.360
469 Mr Martin submitted that the Crown’s uncritical reliance on the Telephone
Summary to prove the existence of a conspiratorial relationship failed to reflect
what he described as “the contemporary contextual realities present in the year
2008 and avoids the inconvenient truths of the political activity of that time and
the daily pressures of Government, including the events amounting to the
equine influenza epidemic”.361
470 In that regard, Mr Martin also drew attention to Mr Iemma’s evidence that, as
the Minister responsible for the Primary Industries and Agriculture portfolios, Mr
Macdonald managed the equine influenza outbreak and its economic impact
on the State of New South Wales over an extended period from August 2007 to
March 2008.362 Dr Sheldrake, the Director-General of the Department,
confirmed that Mr Macdonald had responsibility for the management of the
358
T 244.
359
T 245.
360
T 246.
361
T 139.
362
T 238-9.
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equine influenza outbreak. He gave evidence that Mr Macdonald “spent a lot of

time engaging with stakeholders, industry and other governments in dealing
with the outbreak”.363
Mr Macdonald and Edward Obeid: Personal relationship

471 On the Crown case, in addition to Mr Macdonald and Edward Obeid being
close political allies across a range of fronts, they shared a close personal
friendship.364
472 As an indication of the closeness of the friendship, the Crown relied upon what
it submitted was evidence that Edward Obeid was invited to, and attended, Mr
Macdonald’s wedding in Orange on 15 September 2007. That evidence
consisted of a handwritten entry in Edward Obeid’s diary for 15 September
2007 which read “Ian/Anita Wedding” accompanied by the addresses for Five
Frogs Guest House and Borrodell Winery in Orange.365
473 Mr Martin submitted that the Crown’s sole reliance on the diary entry was an
insufficient basis from which to find as a fact that Edward Obeid attended Mr
Macdonald’s wedding or even that he was an invited guest. Mr Martin
emphasised that there was no evidence that anyone saw Edward Obeid at the
wedding, and no cell tower data was adduced confirming Edward Obeid’s
location in Orange at the relevant time or that he was a guest at either the
Guest House or the Winery. Mr Martin also submitted that the Crown did not
confirm by other evidence that the wedding was at the time stated in Edward
Obeid’s diary.366 Mr Martin relied on Mr Gibson’s evidence that to his
recollection no members of the Obeid family attended the wedding, in contrast
to Mr Gibson’s clear recollection of sighting Mr Fang at the wedding. Mr Martin
submitted that the attendance of Edward Obeid (who had a prominent position
as the head of the “Terrigals” sub-faction that dominated the Right Faction of
the New South Wales branch of the Australian Labor Party) would be a
363
T 2393.
364
MFI 181 p 26.
365
Exhibit A p 147.
366
MFI 190 p 10.
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memorable event and his attendance or non-attendance would be a fact that

would be remembered by Macdonald’s Deputy Chief of Staff. 367
474 In the Crown’s submission, the fact that Mr Gibson did not recall seeing any
members of the Obeid family368 at the wedding does not mean Edward Obeid
was not in attendance.
Mr Macdonald’s use of the Obeids’ Jindabyne apartment

475 An entity controlled by the Obeid Family Trust No 1 held a sublease over an
apartment at The Stables, an apartment complex near Jindabyne in New South
Wales.369 On 13 July 2008, Mr Macdonald billed a meal at Perisher to that
apartment and while on annual leave from 1 to 7 August 2008, Mr Macdonald
stayed at that apartment.370 The Crown case, as closed, was that on both
occasions Mr Macdonald “was a non-paying guest of Edward Obeid”.371
476 Ms Francis submitted that there is no evidence that Mr Macdonald did not pay
for the accommodation, that the apartment was not generally available to
Members of Parliament, or that Edward Obeid joined Mr Macdonald at
Perisher, or on any holiday.372
477 Mr Martin submitted that the Crown led no evidence capable of establishing
that Mr Macdonald and Edward Obeid had anything other than a professional
relationship.373 In her closing submissions, Ms Francis submitted that the
Crown adduced no evidence which would allow the Court to find that Mr
Macdonald and Edward Obeid were close friends or that they shared a
relationship of personal trust such as might inform or colour their relationship
as alleged co-conspirators.374
367
MFI 190 p 10.
368
T 2510.
369
Exhibit M.
370
Exhibit M; Exhibit A pp 1157, 1165, 1535-1541, 1551, 1793-1797, 1821, 1845-1847.
371
MFI 181 p 26. The Crown noted in closing submissions that this evidence was admitted against Mr
Macdonald and Edward Obeid only as to the nature of their relationship.
372
MFI 191 p 24.
373
T 3738.
374
MFI 191 p 21.
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Edward Obeid and Moses Obeid

478 That Edward Obeid and Moses Obeid had a close relationship as father and
son was not controversial. The Telephone Summary reflected nearly daily
contact (often multiple times a day) before, during and after the conspiracy. 375
479 During the period 2007 to 2010, Edward Obeid initiated telephone contact with
Moses Obeid 2,159 times either from his personal telephone or via his office. 376
During the same period, Moses Obeid initiated telephone contact with Edward
Obeid’s personal telephone or his office 1,792 times.377
480 The Crown also relied on Mrs Fitzhenry’s evidence that Edward Obeid would
“drop in” at Moses Obeid’s Elizabeth Bay residence “most weekends” and that
she observed Edward Obeid and Moses Obeid together at Obeid family
gatherings to which she and Mr Fitzhenry were invited.378
The relationship between Mr Macdonald and Moses Obeid

481 The Crown submitted that the contact between Mr Macdonald and Moses
Obeid as evidenced in the Telephone Summary, together with meetings
recorded in Mr Macdonald’s diary were, in certain respects, pivotal to the
conspiracy being executed. The Crown also relied upon Mrs Fitzhenry’s
evidence of observing Mr Macdonald at Moses Obeid’s house more than once
and Mr Fitzhenry’s evidence of being introduced to Mr Macdonald by Moses
Obeid as “Macca”.379
482 Mr Neil submitted in closing that the telephone contact between Mr Macdonald
and Moses Obeid at particular times and generally relied upon by the Crown to
prove the conspiratorial relationship between Moses Obeid and Mr Macdonald,
was of no weight in circumstances where the two accused were “consistently in
contact (typically a number of times per month)” and where no evidence was
called to prove their relationship was other than that they “were friendly and
traded horse racing tips … and evidence that Moses Obeid had an interaction
375
Exhibit U; MFI 181 p 27.
376
Exhibit U: MFI 181 p 27. As the Crown noted in closing, calls placed from Edward Obeid’s office only cover
September 2007 to December 2009.
377
Exhibit U; MFI 181 p 173.
378
T 1320-1; MFI 181 p 27.
379
T 1292.
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of some kind in relation to horse racing issues”.380 Mr Neil also relied in closing
upon Mr Fitzhenry’s evidence that apart from one discussion about a horse
racing tip, there was no other instance where Moses Obeid spoke about Mr
Macdonald.
483 Mr Martin submitted that the contact between Mr Macdonald and Moses Obeid
during the currency of the conspiracy likely related to horse racing and horse
training. Moses Obeid’s connections to horse racing generally were the subject
of limited evidence in the trial. Mr Fitzhenry gave evidence that after being
provided with a tip by his friend Bart Cummings, Moses Obeid arranged for him
to pass that tip on to Mr Macdonald. While on a call to Mr Macdonald, Moses
Obeid passed the phone to Mr Fitzhenry saying, “This is Macca, you can give
him the tip”.381
484 In cross-examination by Mr Martin, Mr Fitzhenry confirmed that he introduced

Anthony Cummings, a horse trainer involved at Randwick Racecourse and the
son of Bart Cummings, to Moses Obeid.
485 Mr Badenoch gave evidence that the impact of the equine influenza was “tied
up with… the impact of World Youth Day appropriating Randwick Racecourse”
which impacted on horse trainers in the context of a state-wide horse
lockdown.382 Mr Badenoch gave evidence referable to a schedule of Mr
Macdonald’s Parliamentary diary383 that meetings about equine influenza were
held and attended by Mr Macdonald on 25 September,384 24 October,385 12
November,386 26 November,387 17 December 2007388 and 31 January 2008.389
486 There were ongoing issues in relation to horse trainers at Randwick

Racecourse and equine influenza at the time of the Credo dinner attended by
Mr Macdonald and Moses Obeid, as to which see par 1108 and following. 390 Mr
380
MFI 192 pp 267-268.
381
T 1291.
382
T 2359.
383
Exhibit 27.
384
T 2363; Exhibit 27 line entry 2264.
385
T 2363-4; Exhibit 27 line entry 2530.
386
T 2365-6; Exhibit 27 line entries 2723, 2729.
387
T 2366; Exhibit 27 line entry 2907.
388
T 2368-9; Exhibit 27 line entry 3083.
389
T 2424-5.
390
T 2435.
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Martin submitted that the dinner meeting likely related to New South Wales
horse racing issues and that absent any evidence called by the Crown to
suggest otherwise, I would not treat that entry in Mr Macdonald’s diary as
providing an opportunity for the exchange of information between Moses Obeid
and Mr Macdonald relating to the unfolding events contextual to the conspiracy
as contended for by the Crown.
Other relationships: Mr Macdonald, Mr Fang and Moses Obeid

487 Mr Alan Fang was the chairman and founder of the Tianda Group. 391 That
group of companies included Tianda Resources P/L,392 a company included in
the list of companies the subject of the seventh act of misconduct.
488 During the period 2007 to 2009, Mr Fang was based in China but travelled
regularly to Sydney. Mr De Ross, the General Manager of Tianda Resources
P/L, described Mr Fang as “someone who was interested in investing in
resource projects in New South Wales”.393
489 It was the Crown case that Mr Macdonald introduced Mr Fang and Moses
Obeid to one another some time prior to 30 June 2008, on which date Mr Fang
attended a conference with Moses Obeid and Mr Rumore, solicitor. I return to
the determination of that question later in my deliberations.
490 The origin of the relationship between Mr Fang and Mr Macdonald was not the
subject of evidence in the trial. Dr Sheldrake gave evidence that he was
introduced to Mr Fang by Mr Macdonald. However, he could not recall when or
in what circumstances that occurred.
491 Mr De Ross gave evidence he was introduced to Mr Macdonald by Mr Fang in

business meetings convened at Mr Macdonald’s office. In those meetings, Mr
Macdonald introduced Tianda Resources P/L to other companies who had
projects in which Tianda Resources P/L may wish to provide investment
capital. Mr De Ross gave evidence that Tianda Resources P/L lacked the
experience or infrastructure necessary to establish itself as a mining company.
391
T 1346.
392
There were various references in the evidence to an entity described as “Tianda”. It was not clear whether
those descriptions referred to Tianda Resources P/L or the Tianda Group generally. I do not regard that
distinction as having any bearing on any of the facts in issue in the tri al.
393
T 1347.
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He also gave evidence that Mr Macdonald introduced him to the principals at

Felix Resources Ltd, with a view to participating in a joint venture on the
Watermark EOI process. No such arrangement eventuated.394
492 The EOI for the Watermark Coal Exploration Area was announced in October
2007.395 It follows that Mr Fang and Mr Macdonald knew each other by that
time.
493 From 15 to 26 May 2008, Mr Macdonald and Mr Fang attended a trade mission
to China and South Korea.396 During that trip, on 17 May 2008, Mr Macdonald,
Mr Fang and others attended a meeting with the Land and Resources
Department of Gansu Province to discuss the potential for co-operation
between Gansu Province and New South Wales. That event was followed by
an official dinner hosted by the Party Secretary of Gansu Province. 397
494 Mr Iemma also attended the trade mission, as did Mr Coutts, the Deputy
Director-General of DPI with responsibility for the Mineral Resources Division.
Mr Iemma met Mr Fang in Sydney prior to the trade mission and in Guangzhou
during the trade mission.398 He observed that, at that time, Mr Fang was
already known to Mr Macdonald.399 Mr Iemma gave evidence that Mr
Macdonald told him that Mr Fang “had extensive contacts in Guangzhou and
could be of assistance to the State in encouraging investment in New South
Wales”.400
495 Mr De Ross also attended the trade mission. He gave evidence that Mr Fang
arranged for Mr Macdonald to participate in “high level meetings with some
people in the Gansu Province”.401 During the course of that trip he observed
that Mr Macdonald and Mr Fang were “familiar” and “friendly” with one
another.402
394
T 1361.
395
Exhibit W p 28.
396
397
Exhibit A p 773.
398
Exhibit A p 771.
399
T 236.
400
T 237.
401
T 1350.
402
T 1351.
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496 Mr Fang and Mr Macdonald also collaborated in other capacities, including in

fundraising efforts following an earthquake in the Gansu and Sichuan
provinces of China.403 Additionally, Mr Fang and Mr Macdonald were patrons of
the Sydney Symphony Orchestra.404 They were jointly involved in planning the
Orchestra’s inaugural tour of China 405 and in that capacity they attended a
meeting with Libby Christie, then the CEO of the Sydney Symphony Orchestra,
on 2 July 2008.406
497 The Crown described Mr Macdonald’s relationship with Mr Fang (as it did with
Mr Macdonald’s relationship with Edward Obeid) as a collaborative
relationship, providing multiple opportunities for their mutual advancement,
albeit that the relationship between Mr Macdonald and Edward Obeid
developed into a relationship of close criminal complicity.
498 The interrelationships between Mr Macdonald, Mr Fang and Moses Obeid and,
most particularly whether the Crown can establish that it was Mr Macdonald
who introduced Mr Fang to Moses Obeid with a view to their mutual advantage
in pursuit of a mining deal at Mount Penny, was in contest. That question will
be addressed later in my deliberations to verdict.407
499 In his closing written submissions, Mr Martin emphasised that, as the Crown is
obliged to disprove any and every reasonable inference consistent with
innocence, the Crown is also obliged to address the numerous innocent
explanations arising from the evidence for the degree of contact between Mr
Fang and Mr Macdonald during the currency of the conspiracy.
500 Mr Martin submitted the frequency of contact between Mr Macdonald and Mr

Fang could be explained by their joint fundraising efforts following an
earthquake in the Szechuan and Gansu provinces of China, along with their
joint patronage of the Sydney Symphony Orchestra.408
403
T 1368, 2436.
404
T 2339, 2368, 2436.
405
T 2326.
406
T 1373, 2436; Exhibit 27.
407
See par 1186.
408
MFI 190 par 96.
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Occasions where the accused are in each other’s physical presence

501 Significantly, the evidence in the Crown case places all three accused in each
other’s physical presence on only two occasions during the currency of the
conspiracy.
502 With respect to the first of those two occasions, Mrs Fitzhenry (a neighbour and
friend of Moses Obeid) gave evidence that around the time the purchase of
Cherrydale Park was settled (an event she nominated without reference to a
month or year but which the evidence establishes was in November 2007), she
observed Moses Obeid, Edward Obeid and Mr Macdonald at Moses Obeid’s
house in Elizabeth Bay.409 The Crown confirmed in its closing submissions that
discrete piece of evidence went no higher than providing an opportunity for
“discussion” between the accused.410
503 With respect to the second of those two occasions, an entry in Edward Obeid’s
diary on 21 August 2008 reads “Moses/Ian/ … Sydney Hosp”.411 By that date,
on the Crown case, the first to the seventh acts of misconduct, inclusive, had
been committed. With respect to the eighth act of misconduct, the Crown case
as closed was that prior to 22 September 2008, but most likely by mid-August
2008, Mr Macdonald had imparted the confidential information the subject of
that act of misconduct to Moses Obeid.412 The Crown relied upon the entry in
Edward Obeid’s diary as an opportunity for Mr Macdonald to provide that
information.
504 The primary evidence relied upon by the Crown to prove the conspiratorial
relationship between all three of the accused was comprised in a schedule of
telephone contact (the Telephone Summary).413
505 Mr Macdonald and Edward Obeid’s Parliamentary diaries were also a source of
evidence of scheduled meetings, principally between Edward Obeid and Mr
Macdonald but also on occasions where Moses Obeid was mentioned.414
Although the Parliamentary diaries of Edward Obeid and Mr Macdonald
409
T 1320.
410
T 3631.
411
Exhibit A p 1919.
412
MFI 181 p 107.
413
Exhibit U.
414
Exhibit A.
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recorded scheduled meetings with each other or with Moses Obeid at various
locations proximate to Parliament House, there was no evidence that the
meetings took place or, if they did, the reason for the meetings or their
duration.
506 The Crown also relied on a schedule of Parliamentary sitting dates between
September 2007 and January 2009 415 as evidence of the opportunity for
contact between Mr Macdonald and Edward Obeid.
507 The Crown submitted that the Telephone Summary, the diaries and the
Parliamentary sitting dates were sources of abundant evidence of the
frequency of contact between the accused and the opportunity they had to
keep each other apprised of the unfolding events contextual to achieving the
object of the conspiracy, including the opportunity they had to share the
confidential information that Mr Macdonald had at his disposal as the Minister
for Mineral Resources concerning the granting of an EL at Mount Penny.
508 There is no evidence of email contact between the accused (although there is
evidence of email contact between Moses Obeid and other individuals). Mr
Macdonald’s computer “illiteracy” was the subject of evidence and not
contested by the Crown. Mr Badenoch gave evidence that Mr Macdonald was
not “a competent user of modern technologies”.416 Mr Gibson gave evidence
he only communicated with Mr Macdonald via email “very infrequently”. 417
509 The accused submitted that neither the diarised meetings nor the Telephone
Summary are probative of the facts in issue in the trial in circumstances where,
as the Telephone Summary reveals, Edward Obeid and Moses Obeid as father
and son were in frequent telephone contact and it reflects regular contact
between Edward Obeid and Mr Macdonald as Parliamentary colleagues and
political allies again before, during and after the timeframe of the conspiracy
and where, in particular, during the currency of the conspiracy there were a
number of “crises” within the Labor Party in government that called for dialogue
across the factional divide.
415
Exhibit E.
416
T 2344.
417
T 2458.
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The Telephone Summary

510 The Crown tendered a document titled Telephone Summary418 of 132 pages
pursuant to s 50 of the Evidence Act. The document was complete as at 12
October 2020. The Telephone Summary covers the period 1 January 2007 to
31 December 2010, incorporating the period of the conspiracy between 1
September 2007 and 31 January 2009. It comprises, in total, 7,294 calls placed
by each of eight individuals in various combinations, including each of the
accused and Mr Brook, Mr Fang, Mr Rampe, and Mr Grigor (from Monaro
Mining NL) and Mr Lewis (who, through an entity he controlled, purchased
Coggan Creek).
511 Significantly, no telephone conversations between the accused (or between the
accused and third parties) were intercepted, recorded or otherwise overheard.
Neither was the content of any SMS messages sent or received included in the
Telephone Summary. It is the bare fact of calls made, voicemails recorded and
SMS messages sent or received that is relied upon by the Crown as evidence
of the close and intersecting relationships between the three accused and as
evidence of the opportunity they had to forge the agreement the subject of the
conspiracy and keep each other updated as to the steps they were each taking
in furtherance of achieving the object of the agreement.
512 The Crown also tendered a series of Explanatory Notes to accompany the
tender of the Telephone Summary, some parts of the document the Crown
proposed to tender having been withdrawn by the Crown following objection by
the accused.
513 The Explanatory Notes, as edited, identify the source materials from which the
information included in the Telephone Summary was compiled, including the
identifying details of phone numbers used from time to time by the eight
individuals whose phone records form the basis of the summary, and the
subscriber details of the various phone services.
514 The Explanatory Notes also to the Telephone Summary include details of the
month and year for which call charge records for each of the eight individuals
were available; where that material is located in the brief of evidence as served
418
Exhibit U.
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and points of distinction between calls and SMS messages. Calls are also
distinguished referable to whether they were diverted to voicemail. Finally,
there is a detailed explanation as to how the summary is to be interpreted, that
is, whether the time of the call and its duration are rounded up to intervals of 30
seconds or whether calls are not rounded up at all.
515 The parties addressed the admissibility of the summary in written submissions
and in oral argument. Ultimately the Telephone Summary and the revised
Explanatory Notes were admitted into evidence as Exhibit U. They are the
subject of a published judgment.419
516 In that judgment I accepted that the telephone contact between various of the
eight individuals whose telephone records were summarised and included in
the Telephone Summary, including most particularly contact between the
accused, was not capable of establishing the reason for the contact or the
content of what was said by any of the callers (assuming calls of under ten
seconds constituted contact), other than contact between Mr Brook and Moses
Obeid, and Mr Brook and Mr Rampe and Mr Grigor, as to which they gave
evidence. I also accepted that there may be an innocent explanation for
frequency of contact between Moses Obeid and Edward Obeid given their filial
relationship, and Edward Obeid and Mr Macdonald as Parliamentary
colleagues. However, I did not regard the evidence in the Telephone Summary
as intractably neutral as contended for by the accused, in the sense that it was
incapable of supporting proof of the probability of any of the facts in issue in the
trial.
517 The weight of the Telephone Summary was the subject of closing oral and
written submissions.
Submissions of the Crown

518 Annexure C to the Crown’s closing written submissions provided a numerical
and statistical analysis of the Telephone Summary. On average, Mr Macdonald
and Edward Obeid contacted one another by phone 24 times per month in the
pre-indictment period, 33.2 times per month during the indictment period, and
21.6 times per month in the post-indictment period. Edward Obeid and Moses
419
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Obeid contacted one another by phone 85.1 times per month in the pre-
indictment period, 87.9 times per month during the indictment period, and 77.2
times per month in the post-indictment period. Moses Obeid and Mr Macdonald
contacted one another by phone 1.9 times per month in the pre-indictment
period, 6.6 times per month during the indictment period, and 5.3 times per
month in the post-indictment period.420
519 In closing written submissions, the Crown relied upon the telephone contact
between the accused at critical points in what the Crown submitted was the
execution of the conspiracy which, in the Crown’s submission, provided ample
opportunity for confidential or otherwise critical information to be relayed
between the accused and for Moses Obeid in particular, to update his co-
conspirators.
520 The Crown did not seek to suggest that on every occasion of contact between
the accused something nefarious was at play.421 The Crown made the
following submission:
In relation to the phone and diary records indicating very regular

communication between Edward Obeid and Ian Macdonald, evidence has
been adduced … about a number of significant political issues during
2007/2008 (such as electricity privatisation) which would have caused Ian
Macdonald and Edward Obeid to attend meetings and talk to each other by
phone. That may be so. But it does not mean when they spoke and met they
only talked about one topic, or exclusively about political issues of the day.
There is no mutual exclusivity in this evidence. All the phone calls and
meetings between Ian Macdonald and Edward Obeid provided opportunities
for the conspiracy to be formulated and put into effect.422
521 The Crown also submitted that the telephone, diary, and Parliamentary sitting
day evidence established the overwhelming opportunity for communication and
that the most direct line of communication was between Mr Macdonald and
Edward Obeid,423 that supported the inference that Mr Macdonald conveyed
the conspiratorial and other information to Edward Obeid, who then conveyed it
to Moses Obeid to use in pursuit of realising the commercial value of that
information.
522 The Crown relied on the following:

420
MFI 181 p 174.
421
T 3675.
422
MFI 181 par 76.
423
T 3671.
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(1) Telephone contact between Mr Macdonald and Edward Obeid on 16,

18, 19, 20, 21, 25 and 26 September 2007 as providing evidence of the
opportunity Edward Obeid had to inform Mr Macdonald of the purchase
of Cherrydale Park.424
(2) Regular telephone contact between each of the accused from
September 2007 to May 2008 as providing an opportunity for the
accused to discuss and then enter into the agreement the subject of the
conspiracy.425
(3) Calls between Edward Obeid and Moses Obeid and Edward Obeid and
Mr Macdonald on 8 May 2008, as providing opportunity for Edward
Obed to convey a request to Mr Macdonald for information about the
volume of coal reserves at Mount Penny (the subject of the first act of
misconduct).426
(4) Calls placed by Edward Obeid, firstly to Mr Macdonald and then to
Moses Obeid on 9 May 2008, as providing an opportunity for Mr
Macdonald to discuss the content of the Ministerial Briefing of that date
(including Wiles Map 1), and to provide Edward Obeid with the
information about coal reserves at Mount Penny and for Edward Obeid
to convey that information to Moses Obeid.427
(5) Calls between Edward Obeid and Moses Obeid and between Edward
Obeid and Mr Macdonald on 12 and 13 May 2008 as providing an
opportunity to ask about the possibility of the DPI releasing Mount
Penny for tender (the subject of the second act of misconduct).428
(6) Telephone contact between each of the accused on 14 and 15 May
2008 as providing the opportunity to further discuss the information that
Mr Macdonald sought from the DPI about the possibility of the
Department opening its holdings under EL 6676 in the Bylong Valley
(the subject of the second act of misconduct) before Mr Macdonald
departed on a trade mission to China and South Korea on 15 May
2008.429
(7) Telephone contact between the accused on 4 June 2008 as providing
an opportunity for Mr Macdonald to discuss with Edward Obeid and
Moses Obeid the potential for a coal release area in the area of Mount
Penny to be designated from within EL 6676 (ultimately the subject of
the fifth act of misconduct).430
(8) Telephone contact on 20 August 2008, the date the Share Option Deed
between Monaro Mining NL and Voope Pty Limited (Voope P/L) was
executed, together with telephone contact the following day, between
Mr Brook and Moses Obeid, followed by calls placed by Moses Obeid
424
MFI 181 p 34.
425
MFI 181 par 136.
426
MFI 181 par 166.
427
MFI 181 par 176.
428
MFI 181 par 180.
429
MFI 181 p 57.
430
MFI 181 par 211.
5KIPGFD[#WUV.++
firstly to Edward Obeid and then to Mr Macdonald, providing an

opportunity for each of them to discuss the developing potential for
Moses Obeid to successfully position his family, via Voope P/L,
contractually with Monaro Mining NL as an applicant for the grant of an
EL at Mount Penny.431
(9) Telephone contact on 15 September 2008 between Moses Obeid and
Mr Brook, and Edward Obeid and each of Moses Obeid and Mr
Macdonald as providing an opportunity for them to discuss
developments between Monaro Mining NL and Lehman Brothers,
Lehman Brothers having entered Chapter 12 insolvency that day.432
(10) Telephone contact on 12 January 2009 between each of the accused as
providing an opportunity for Mr Macdonald to convey information about
the reopening of the EOI process to allow “The White Group” to make
an application for an EL at Mount Penny (the ninth act of
misconduct).433
(11) Telephone contact on 2 June 2009 between Moses Obeid and each of
Mr Brook and Edward Obeid, followed by phone contact between
Edward Obeid and Mr Macdonald, as providing an opportunity to update
the status of the agreements between Cascade Coal P/L and Buffalo
Resources Pty Limited (Buffalo Resources P/L).434
Submissions of the accused
523 Each of the accused addressed in their closing submissions what they
submitted was a range of “innocent” explanations for the degree of contact
between them, including telephone contact.
524 Mr Neil also submitted that there were numerous deficiencies in the Telephone
Summary, including that it did not contain records of Mr Macdonald’s home
telephone; that the record of calls made by and to Moses Obeid was
incomplete; that parts of the Telephone Summary did not distinguish between
calls and voicemails or between call attempts and SMS messages; that the
Telephone Summary included calls under ten seconds (presumably as a call of
that length could not convey information in any meaningful sense); that calls
under 30 seconds duration were rounded up to 30 seconds, and that the
Telephone Summary lacked location data, all of which rendered the Summary
431
MFI 181 par 434.
432
MFI 181 par 463.
433
MFI 181 par 532.
434
MFI 181 par 625.
5KIPGFD[#WUV.++
of no weight in resolving the facts in issue and an unsafe basis upon which to
draw the inferences sought by the Crown.435
525 Mr Neil advanced the further submission that the telephone records after 31
January 2009 should be distinguished from the various business records
generated after that date that formed part of Exhibit A because the fact that the
persons identified by the Crown remained in contact after 31 January 2009 (or
did not stay in contact) is not relevant to demonstrating the use that was made
of any alleged misconduct in the entrepreneurial phase of the conspiracy and,
for that reason, reliance on the telephone record from that period of time invited
“speculation and unfair prejudice”.436 Further and in addition to that submission,
Mr Neil submitted that the records of telephone calls made and received in
2010 are of no weight at all and, due to the incompleteness of the phone
records available for that year, the Crown “cannot establish … that there was a
reduction in the number of calls between Moses Obeid and Ian Macdonald in
2010”.437
526 Mr Neil submitted that the fact that Moses Obeid and Edward Obeid were
consistently in frequent telephone contact throughout the entirety of the
relevant period was hardly surprising given they are in a father-son
relationship. He also submitted that Edward Obeid and Mr Macdonald were
also in frequent contact throughout the entirety of the relevant period as
professional colleagues engaged in political issues including electricity
privatisation; and that Moses Obeid and Mr Macdonald were also in contact in
the same period in circumstances where no evidence was called to contradict
the fact that their relationship was based on friendship sufficiently close for Mr
Macdonald to be invited as a guest to Moses Obeid’s home and sharing a
common interest in horse racing.
527 Mr Neil also made the following submission:
The frequency and the typical pattern of the contact between the three co-
accused means that the contact could be lined up against virtually any
chronology of key events in a manner that may suggest that the events are
linked …
435
MFI 192 p 267.
436
MFI 192 p 269.
437
MFI 192 p 270.
5KIPGFD[#WUV.++
The Crown artificially picks a day (e.g. 26 September 2007) and then seeks to
use the frequent contact between Moses Obeid and Edward Obeid (typically
including at least every morning and every afternoon/evening and frequently
during the day) to invite the speculation that the subject-matter of those calls
concerned the events identified by the Crown (in this case, certain
correspondence regarding Cherrydale) despite there being no direct evidence
that Moses Obeid had any role whatsoever in those events. 438
528 Mr Neil submitted that, “[t]he phone summary demonstrates that there is no
contact between Moses Obeid and Ian Macdonald on the most critical dates in
the Crown case”,439 including the following:
(1) From 1 to 15 May 2008, the period during which the Crown alleged the
first and second acts of misconduct occurred.
(2) From 4 to 6 June 2008, the period during which the Crown alleged the
fifth act of misconduct occurred.
(3) From 2 January to 2 February 2009, the period during which the Crown
alleged the ninth act of misconduct occurred.
529 Mr Neil also submitted that Moses Obeid’s telephone contact with each of Mr
Lewis, the purchaser of Coggan Creek, and Mr Fang of the Tianda Group
should be disregarded when neither was called as a witness and where there
was a paucity of evidence about the nature of their relationships with Moses
Obeid.
530 Finally, Mr Neil submitted that the Crown attempted to overcome the clear
deficiency in contact between Moses Obeid and Mr Macdonald during the
currency of the conspiracy by scheduling the contact in the Telephone
Summary in a way that suggests there is a sequence of related calls, for
example where Edward Obeid calls Moses Obeid after speaking to Mr
Macdonald.440 In Mr Neil’s submission, the inference of a three-way
communique for which the Crown contends invites impermissible speculation
about the content of the communications, in circumstances where the Crown
did not tender the entirety of phone calls made by any of the accused on a
given day with people other than with each other.
531 On the basis of Mr Iemma’s evidence (referred to earlier), as well as the

uncontradicted evidence of Mr Badenoch and Mr Gibson, Mr Martin submitted
438
MFI 192 p 272.
439
MFI 192 p 277.
440
MFI 192 p 274.
5KIPGFD[#WUV.++
that the Court would proceed to assess the weight of the so-called
“opportunity” evidence on the basis that Mr Macdonald and Edward Obeid
were factional leaders of the New South Wales branch of the Australian Labor
Party, that they engaged in a large number of phone calls and meetings
devoted to the major and long-running issues of electricity privatisation and
other major issues such as equine influenza, the redevelopment of the
Randwick Racecourse, World Youth Day and managing the relationship with
the Shooters Party. Mr Martin further submitted that the Telephone Summary
showed increased contact between Edward Obeid and Mr Macdonald after the
outbreak of equine influenza in late August 2007.
Diary entries
Crown Case
532 Annexure B to the Crown’s closing written submissions summarises the diary
evidence contained in Exhibit A. As noted above, the Crown relied on that
evidence, inter alia, as “opportunity” evidence.441
Edward Obeid and Mr Macdonald’s Parliamentary diaries

533 In addition to the Telephone Summary, the Crown relied on evidence of
meetings between Mr Macdonald and Edward Obeid, scheduled in one or both
of their diaries, in further proof of the closeness of their political relationship. In
particular, the Crown relied on evidence of approximately 13 diarised meetings
in the period 22 January 2007 until the beginning of the indictment period on 1
September 2007, together with approximately 40 meetings during the currency
of the conspiracy.442
534 In particular, the Crown relied upon:
(1) An entry in Edward Obeid’s diary on 15 September 2007 which read

“Ian/Anita Wedding” followed by an address in Orange, New South
Wales.443 The Crown submitted that diary entry is evidence both that
Edward Obeid was invited to, and that he attended, Mr Macdonald’s
wedding. The Crown further submitted that the fact that Mr Gibson did
not recall seeing any members of the Obeid family444 at the wedding
does not mean Edward Obeid was not in attendance. In the Crown’s
441
MFI 181 par 136.
442
MFI 181 pp 166-172.
443
Exhibit A p 147.
444
T 2510.
5KIPGFD[#WUV.++
submission, the fact of the invitation is itself an indication of the strength

of their relationship.445
(2) An entry in Mr Macdonald’s electronic diary for a meeting with “Eddie
Obeid” at 5:30pm on 8 May 2008,446 the day before the enquiry made
by Mr Macdonald made of the DPI via Mr Gibson the subject of the first
act of misconduct.
(3) An entry in Edward Obeid’s diary on 5 June 2008 for a State Cabinet
Budget Dinner447 which, in the Crown’s submission, provided the
opportunity for Mr Macdonald and Edward Obeid “to consider and
discuss the contents of Wiles Map 2”448 which had by that date been
marked up by Mr Macdonald (the subject of the fifth act of misconduct).
(4) An entry on 16 June 2008 in Mr Macdonald’s electronic diary for a
dinner meeting with Anthony Cummings.449 Mr Cummings was a horse
trainer involved at Randwick Racecourse.450 According to the relevant
entry in Mr Macdonald’s electronic diary, that meeting was held at
Credo Restaurant in Cammeray. That diary entry also lists the name of
Moses Obeid. The Crown relied on the inclusion of Moses Obeid’s
name in that diary entry as evidence of contact between Mr Macdonald
and Moses Obeid at the time of the sixth alleged act of misconduct.451 In
cross-examination of Mr Badenoch, Mr Martin established that as at the
time of that meeting, there were ongoing issues in relation to horse
trainers at Randwick Racecourse.452
(5) An entry on 8 July 2008 in Mr Macdonald’s electronic diary for a
meeting with Moses Obeid from 12:30 to 1:00pm at Sydney Hospital
Cafe.453 Along with other meetings recorded in Mr Macdonald’s diary, in
the Crown’s submission this meeting was at a time when significant
events were unfolding in Moses Obeid’s developing relationship with Mr
Brook after the successive meetings with him at the Wentworth Hotel on
3 and 7 July 2008, events which included, on the Crown case, Mr
Macdonald providing a handwritten list of companies to be invited to
participate in the EOI process, the subject of the seventh act of
misconduct.454
Parliamentary sitting days
535 Although no evidence was adduced by the Crown in its case as to the
protocols that applied in New South Wales, I proceed on the basis that as
Members of the Legislative Council, Mr Macdonald and Edward Obeid were
445
MFI 181 p 26.
446
Exhibit A p 745.
447
Exhibit A p 849.
448
MFI 181 par 217.
449
Exhibit A p 961.
450
T 2435.
451
MFI 181 p 76.
452
T 2435.
453
Exhibit A p 1109.
454
MFI 181 par 79.
5KIPGFD[#WUV.++
expected to attend Parliament on Parliamentary sitting days. A schedule of

New South Wales Parliamentary sitting dates between September 2007 and
January 2009 was tendered by the Crown without objection.455 In that time, the
Legislative Council sat on 67 occasions.456 The Crown did not adduce any
evidence which indicated the degree of face-to-face contact between Mr
Macdonald and Edward Obeid on any of those occasions such as might
provide direct evidence of an opportunity for them to discuss entering into the
agreement the subject of the conspiracy or updating each other as to the
progress of its execution, including Mr Macdonald furnishing Edward Obeid
with confidential information from time to time.
536 The Crown relied upon particular Parliamentary sitting days between
September 2007 and May 2008 as providing an opportunity for Edward Obeid
and Mr Macdonald to reach a conspiratorial agreement which was forged so as
to include Moses Obeid by no later than 9 May 2008:457
(1) The Australian Labor Party Conference held on the weekend of 3 and 4
May 2008458 was attended by Mr Macdonald and Edward Obeid. In the
Crown’s submission, that occasion provided an opportunity for Edward
Obeid to ask Mr Macdonald about coal reserves at Mount Penny,
prompting Mr Macdonald’s request of the DPI on 8 May 2008, the
subject of the first act of misconduct.
(2) The Crown also pointed to 6 to 8 May 2008 as Parliamentary sitting
days where Edward Obeid had the “opportunity” to request more
information from Mr Macdonald about coal reserves at Mount Penny
including whether the DPI would release its holdings to tender (the
subject of the first and second acts of misconduct).
(3) Further, the Crown pointed to 4 June 2008 as an opportunity for Mr
Macdonald to update Edward Obeid as to the outcome of his meeting
with the DPI that day, and 5 June 2008 for Edward Obeid and Mr
Macdonald “to consider and discuss the contents of Wiles Map 2”
before the 6 June 2008 DPI meeting which the Crown alleged the fifth
act of misconduct was committed by Mr Macdonald “directing” that a
small coal release area be excised from Wiles Map 2 in the area of
Mount Penny.459
455
Exhibit E.
456
Exhibit E.
457
MFI 181 par 136.
458
T 2430-2431.
459
MFI 181 par 217.
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The probative value of the Telephone Summary and Parliamentary diaries

537 In making the findings of fact that underpin proof of what the Crown alleged is
the strength of its circumstantial evidence case, including the question whether
the Crown has proved that the accused were parties to the conspiracy alleged,
I have not attributed significant weight to the Telephone Summary per se or the
quantum analysis of the extent of contact between the accused before, during
or after the timeframe during which the Crown alleges the conspiracy was
extant and continuing, or the diarised meetings between Edward Obeid and
Moses Obeid, Edward Obeid and Mr Macdonald, and Mr Macdonald and
Moses Obeid. I do, however, accept it is a source of evidence of the existence
of a relationship between the accused not otherwise established by the
available evidence, in particular, a relationship between Moses Obeid and Mr
Macdonald which predated the conspiracy and apparently extended beyond it.
538 I also accept that in a number of limited respects (which I will identify with
particularity in the course of my deliberations which follow) the Telephone
Summary and the diarised meetings do provide evidence of the opportunity for
the accused to discuss matters material to proof of the existence of the
conspiracy where there are contextual events which depend in some material
way on the accused being in direct and continued contact with each other.
What were the circumstances in which Cherrydale Park was acquired by the
Obeid family in September 2007, when did the family learn of the
encroachment of Authorisation 247 held by Anglo American P/L on the
property and what impact did that knowledge have on their plans for the use of
Cherrydale Park as a rural holding?
The acquisition of Cherrydale Park
539 The acquisition of Cherrydale Park and the circumstances in which the
accused came to learn of coal deposits under the property are important
events in proof of the Crown case.
540 Mr Cherry purchased a property called Little Plain, together with two other
properties, Bimble and Wingarra,460 in around 1987, as an investment property
principally for the farming of cattle. The three properties came to be known as
Cherrydale Park. Mr Cherry later sold Wingarra but retained the balance of his
460
T 455; Exhibit A p 296.
5KIPGFD[#WUV.++
holdings until he sold Cherrydale Park in 2007 to Locaway P/L, a company

controlled by the Obeid family.461 Prior to the sale, Mrs Cherry resided at
Cherrydale Park. Mr Cherry visited the property on weekends and, after his
retirement in 2004 or 2005, he lived there permanently.462
541 Cherrydale Park is an established rural property of 600 hectares situated on

the eastern side of the Bylong Valley, a valley which intersects the Great
Dividing Range between the Goulburn River National Park and the Wollemi
National Park in New South Wales.
542 As at September 2007, Cherrydale Park comprised a homestead and yard

situated in grounds occupying over 22 hectares. Vast tracts of cleared pasture
extended over the north-west of the property. Approximately 24 hectares of
sown lucerne was adjacent to the homestead and gardens to the southeast.463
The sown pasture was part of a tract of about 100 hectares of irrigated land in
the east of the property, extending along the Bylong Valley floor. That land was
irrigated from an underground stream from which water was pumped under
water licences issued variously by the Department of Infrastructure, Planning
and Natural Resources, the Department of Land and Water Conservation and
the Department of Water and Energy.464 Because it was irrigated and it was
eastern-facing, the eastern aspect of Cherrydale Park was the most valuable
part of the property from an agricultural perspective.465
543 Mr Cherry described the property in his evidence at trial as “just beautiful”.466
He gave evidence that the construction and maintenance of the property cost
$10 million. Under the vendor financing arrangements (see pars 618-620
below), the maintenance of the garden by Locaway P/L was included as a
requirement.467
461
T 455.
462
T 455-456, 489, 494.
463
Exhibit AG - a map of Cherrydale Park as at December 2002.
464
Exhibit A pp 279-296; Exhibit AG.
465
T 513.
466
T 455.
467
Exhibit A p 436; T 473.
5KIPGFD[#WUV.++
544 Mr Cherry decided to sell Cherrydale Park in about May 2007. He confirmed
that the photographs comprising Exhibit F in the trial were taken for the
purposes of advertising the sale of the property by auction.
The location of Mount Penny adjacent to Cherrydale Park

545 The relative geographic locations of Cherrydale Park and Mount Penny was
significant in the trial because of the Crown’s accepted obligation to prove as a
fact beyond reasonable doubt that by no later than 9 May 2008, when the first
act of misconduct was committed by Mr Macdonald, he knew the Obeids
owned Cherrydale Park, a rural property situated near Mount Penny in the
Bylong Valley.
546 One of the photographs in Exhibit F shows Mount Penny as a dominating

topographical feature rising from the valley floor to the east of Cherrydale Park
which is photographed in the foreground:468
547 Mr Cherry gave evidence that he understood that Mount Penny was not within
the surveyed boundaries of Cherrydale Park but within “Crown land or National
Park” which bordered the property to the east.469
468
Exhibit F.
5KIPGFD[#WUV.++
548 Mr Whiddon, a cartographer, gave evidence that in 2013 he was supplied with
information by an ICAC investigator from which, using information available on
the Australian Map Grid, he plotted, on a series of maps, the coordinates of the
boundaries of Cherrydale Park, Donola and Coggan Creek as adjoining
properties to Cherrydale Park to the north470 relative to the Mount Penny EL 471
and to Mount Penny itself which he appointed by a trig point icon.472 The maps
were broadly described as maps of the Bylong Valley.473 A selection of those
maps was included in Exhibit A.474
549 In his evidence in chief, Mr Whiddon was not asked about the precise location
of Mount Penny relative to Cherrydale Park or to the neighbouring properties,
although it is obvious from the exhibited maps that Mount Penny (or the area of
Mount Penny) is in the Bylong Valley.
550 In cross-examination, Mr Whiddon confirmed that he used a trig point icon to

represent the location of Mount Penny on the maps he prepared. He gave the
following evidence:
Q. … On map [Exhibit A p 6574], there is shown in the centre right the words
“Mount Penny” and to the right of that, to the east, is a triangle, correct?
A. Yes.
Q. Is that meant to represent a trig point for Mount Penny?
A. Yes, it is.
Q. Did you actually locate a trig point as such on any map for doing this? How
did you derive that trig point?
A. From the digital elevation model I have in the background of this. You can’t
see that,
…
Q. You would agree, would you not, that the trig point, generally speaking,
would be the highest point of a topographical feature such as a mountain?
A. More or less, yes.
Q. But the topographical feature of the mountain could stretch for many
kilometres, correct?
A. Yes, yes, it does, yes.
Q. And if you then look at the map [at Exhibit A p 6576], you have there shown
again Mount Penny but on that one you have got it between the two lines, the
469
T 457.
470
See later at pars 1218-1230 – the circumstances in which Donola and Coggan Creek were acquired.
471
Exhibit A p 6578.
472
Exhibit A p 6574; T 3480-3481.
473
T 3481.
474
5KIPGFD[#WUV.++
red one and the black one, do you see?

A. Yes, go on.
Q. But could it be that these trig point positions are not necessarily completely
accurate?
A. Not - it's a graphical representation. I mean, that is what it is, yes.
Q. Because if you look at [Exhibit A p 6578], you have got the trig point in
effect sitting with the very lowest portion of the trig point, the southern portion
of it, basically sitting on the Cherrydale Park boundary but substantially, save
for a very small portion, to the west of the eastern boundary of 7406, correct?
A. Sort of, yes, yes. Do you know how big that trig is, the actual symbol on a
map?
Q. Well, tell us?
A. It is probably 200 metres wide.475
…
Q. … I want to put to you that that is the topographical area of the Mount
Penny mountain, do you agree?
A. Yes. Yes, it is.
Q. And the bulk of it is on the A287 Anglo authority area, would you accept
that?
A. Yes, I would.
Q. Would you agree that it forms a ridge line?
A. Yes. Yes, it does.476
551 Mr Whiddon was then shown Wiles Map 2,477 a map prepared by Ms Wiles
from the DPI on 30 May 2008 prior to the designation of the Mount Penny EL,
where she placed an icon representing Mount Penny. She said she used
“Mount Penny” in the title she gave to both Wiles Map 1 and Wiles Map 2
initially because the internal enquiry that resulted in the creation of Wiles Map 1
referred to “Mount Penny”, and that the name acquired currency in various
Departmental documents, including Wiles Map 2, from that time. Wiles Map 2
is reproduced below but discussed at length later.478
475
T 3490-3491.
476
T 3492.
477
Exhibit A p 833.
478
See pars 1247-1358.
5KIPGFD[#WUV.++
552 In re-examination, Mr Whiddon was questioned about the following map he

produced:479
479
Exhibit A p 6578.
5KIPGFD[#WUV.++
553 He gave evidence that the Mount Penny “trig point” on that map (referrable to
the scale used in that map) was “probably 200 metres wide” because:
If you are looking at the map of Australia, for example, you have to put a circle
on it to delineate towns. At scale … that circle could be many kilometres wide
… that position on my map, at that scale of our maps that we had, that symbol
could represent 100 metres wide or 200 metres wide, depending on the size of
the symbol we put on the maps.480
554 Mr Whiddon also produced a map which overlay the potential open cut area
depicted in Wiles Map 2 with the boundaries of the Mount Penny EL and the
boundaries of Cherrydale Park, Donola and Coggan Creek:481
480
T 3492.
481
Exhibit A p 6580.
5KIPGFD[#WUV.++
Edward Obeid negotiates for the purchase of Cherrydale Park

555 Commencing in about mid-September 2007, Edward Obeid negotiated directly
with Mr Cherry to purchase Cherrydale Park prior to Mr Cherry listing the
property for sale by auction,482 after learning that the property was for sale from
Mr Rodd, a stock and station agent who had been for some years assisting the
Obeid family with general advice in their rural and agricultural endeavours. 483
556 In 2005 or 2006, Mr Rodd was aware from Damian Obeid that his family was
interested in acquiring another rural property after the sale of a 6000 hectare
cattle grazing and timbered property known as Moona Plains situated near
Walcha, New South Wales. Mr Rodd had advised the Obeids (principally
Damian Obeid) on the management of Moona Plains.484 The principal criteria
482
Mr Rodd became aware of the property at Cherrydale Park through Mr Brian Marheine, a close friend of Mr
Cherry. Mr Marheine approached Mr Rodd who gave him to understand that Mr Cherry wanted to sell the
property. See T 457-8, 498-9.
483
T497; Exhibit AV(2) p 1 of 40.
484
T 514-515.
5KIPGFD[#WUV.++
for the new property were that it be within three hours of Sydney, suitable for
cattle breeding, with a “nice house and garden”.485
557 Moses Obeid and Damian Obeid attended with Edward Obeid and other
members of the family to inspect Cherrydale Park on multiple occasions,
including to evaluate plant and equipment. Mr Rodd also inspected Cherrydale
Park with various members of the Obeid family including Damian Obeid,
Edward Obeid and Moses Obeid. Mr Rodd gave evidence that he understood
cattle were to be run on the property and that his advice was sought as to how
to maximise the potential for a profitable cattle farming enterprise. He gave the
following evidence:
I told them it would probably take me four or five years to build it up to a self-
replacing herd. In other words, we wouldn’t have to buy any [cattle] outside,
we could replace them all ourselves within. And the four or five years was
really only a guess because if you got three good seasons you’d get there, but
the way the seasons are the last few years, I thought it was safe and I said
four or five and we certainly did that. We achieved that. 486
558 Negotiations for the purchase of the property were conducted by Edward Obeid
directly with Mr Cherry, including meetings in Sydney and by telephone. One of
the issues discussed during the negotiations was the purchaser’s entitlement to
the unrestricted water licences that attached to the property. Mr Cherry gave
evidence that he accessed water for irrigation under licence and that without
access to that water the property would have been incapable of supporting
cattle farming for commercial purposes.
559 Condition 53 to the Contract for Sale for Cherrydale Park provided that:
The purchaser acknowledges that the water licences will not be assigned to
the purchaser or the purchaser’s nominee until the moneys advanced pursuant
to special condition 52 have been repaid in full.487
560 The negotiations for sale culminated in a Contract for Sale dated 27 September
2007 being executed by Paul Obeid and Damian Obeid on behalf of Locaway
488
P/L as trustee for the Moona Plains Family Trust as purchaser. The
485
T 498.
486
T 517.
487
T 472.
488
Under the Trust Deed, Mr Edward Obeid was named as the appointer.
5KIPGFD[#WUV.++
purchase price was $3.65 million.489 As at the date of settlement, the identity of
the purchaser remained unchanged.
561 As noted earlier, the Moona Plains Family Trust was settled by a Trust Deed
executed by Locaway P/L as trustee on 25 October 1994.490 The primary
beneficiaries under the trust were each of Edward Obeid’s sons: Damian
Obeid, Paul Obeid, Moses Obeid, Gerard Obeid and Edward Obeid Jr.
Discretionary beneficiaries include the primary beneficiaries and their parents,
children, siblings and spouses.
562 Of the two shares Locaway P/L issued as trustee of the Moona Plains Family
Trust, one was held by Paul Obeid and the other by the Obeid Corporation P/L
as trustee for the Obeid Family Trust No 1.491 It is the Crown case that, both in
anticipation of and then after the EOI process for the grant of an EL at Mount
Penny was publicly launched on 9 September 2008, Edward Obeid and Moses
Obeid attempted to distance their family from the ownership of Cherrydale Park
(as they did their relationship with the neighbouring properties, Donola and
Coggan Creek). This was relied upon by the Crown as evidence of their
participation in the conspiracy.492
Cherrydale Park is settled

563 The purchase of Cherrydale Park was settled on 15 November 2007. 493
564 Pursuant to Condition 52(a) of the Contract for Sale, $2.38 million of the
purchase price of Cherrydale Park was provided by an advance by the Cherry
Superannuation Fund.494 A mortgage to that effect was executed on 15
November 2007.495 The Mortgagor was listed as Locaway P/L. The Mortgagee
was listed as Mr John Cherry and Mrs Barbara Cherry, joint trustees of the
Cherry Superannuation Fund.496
489
Exhibit A p 195; T 469-470.
490
491
Exhibit B.
492
See par 1899 and following.
493
Confirmed by letter sent by Mr Anthony Cordato, a partner at Cordato Partners and the Obeids’ solicitor, to
Peter Druitt and Co Real Estate, Mr Cherry’s agent; Exhibit A p 425; T 292.
494
Exhibit A p 209.
495
496
Exhibit A p 429; T 465, 478.
5KIPGFD[#WUV.++
565 Pursuant to special condition 52(b) of the contract for sale, a further advance of
$250,000 was to be provided by the vendor, Mr Cherry.497
566 It is unclear precisely when the Obeid family took possession of Cherrydale
Park or whether any family members took up residence on the property, and, if
so, when that occurred. In the interview with journalists Ms Jiminez and Mr
Shanahan on 18 December 2012, Edward Obeid stated that “we spent the
summer of 2008 up on the farm”.498
567 Mr Rodd gave evidence that, at an unspecified time after settlement, the
agricultural infrastructure on the property was upgraded. New fencing was
installed and pasture improvement was undertaken, together with other
unspecified works. Mr Rodd also acquired a herd of Angus cattle on behalf of
the Obeids:
A. They wanted to start a really good Angus herd so I made a few trips to the
south and I used to do a fair bit of that in those days, setting up Angus herds in
the early days of Angus. And they were pretty good that way. The first lot were
fairly expensive. The second lot I actually got some I actually bought the
Compton Angus Stud from down at Henty which were magnificent cattle.
HER HONOUR
Q. How many head did you secure?
A. I think of Compton there were about 70 or 80.
Q. And they were all steers for fattening or were they
A. No, they were actually stud females; they were beautiful cattle. And then I
bought a couple of B doubles of really good cows and calves from Mountain
Station at Culcairn, a bloke called John Atkins from Walbundrie, out that way,
and they were all very good cattle.499
568 After taking into account the capacity of a herd to “grow and shrink,” Mr Rodd
estimated the number of cattle that were run at Cherrydale Park at 260-270
head.500 Mr Rodd also gave evidence that Damian Obeid expressed a keen
interest in expanding the herd to include about 1000 head of breeding cattle.
Mr Rodd gave evidence that on his recommendation a herd of that size could
be better accommodated on an adjoining property without the need for a
substantial increase in the number of staff. To this end, Mr Rodd undertook
497
Exhibit A p 209; T 471-472.
498
499
T 504.
500
T 505.
5KIPGFD[#WUV.++
inspections firstly of Donola 501 followed by Coggan Creek502 on behalf of the

Obeids at sometime in mid-2008, prior to 23 June 2008.503 That date is
significant, on the Crown case, as the date Mr Rumore, solicitor, was retained
to advise on a proposal with a third party entity which would have had the three
properties acquired for a prospective sale to a mining company with the
properties used for grazing and cropping in the interim, before “mining leases”
issued. The evidence relevant to that aspect of the Crown case will be
developed at length later.
569 Mr Rodd gave evidence that, in his assessment, the cattle could be grazed
across the three properties, with Cherrydale Park as the headquarters. By
utilising Cherrydale Park staff, he estimated the properties could be built up to
support up to 1000 head “quite comfortably”.504 He agreed with the proposition
put to him by Mr Neil that “without oversimplifying matters”, it made sense “to
combine the three properties to run an agricultural operation”. 505 He explained
as follows:
Well looking at it now, it would have went well for a few years but then we
would have copped this three year drought so it would have knocked us for six
a little bit. You get used to that anyway but it would have worked well. Because
Cherrydale being a much better place than the other two, you could have used
the two northern properties as breeding country and finished everything off to
a heavier weight on Cherrydale. So it would have worked well, yeah. 506
570 Mr Rodd gave evidence that for “a couple of years” after the purchase of
Cherrydale Park in September 2007, Donola was used to graze the Obeid
family’s cattle.507
The significance of Authorisations 287 and 342

571 As at the date of the settlement of Cherrydale Park, Authorisation 287 and
Authorisation 342508 were held by Anglo Coal (Bylong) Pty Ltd.509 In a report
501
T 507.
502
T 510-511.
503
T 511.
504
T 518.
505
T 518.
506
T 520.
507
T 507.
508
An Authority or Authorisation was the term used under the Coal Mini ng Act 1973 (NSW) analogous to an EL
under the Mining Act 1992 (NSW).
509
Presumably a wholly owned subsidiary of Anglo American but no evidence of that fact was tendered in the
trial. See T 914, 940.
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commissioned by the DPI in 2005, they were estimated to contain 460Mt of

coal.510
572 Mr Mullard, the Director of the Coal and Development Group within the DPI,
agreed that “Anglo American” was a major mining company which, together
with companies such as BHP, Rio Tinto and Xstrata, dominated the New South
Wales coal mining industry.
573 On 17 November 2003, pursuant to the Mining Act, under delegation from
Minister Hickey, Authorisation 287 was renewed for a further term until 27 July
2008.511 On 30 March 2009, under delegation from Minister Macdonald,
Authorisation 287 was renewed for a further term until 27 July 2011. 512
Authorisation 287 was subsequently sold for a significant sum to Korean
Electric Power Corporation (KEPCO),513 which went on to produce a plan for a
large mine on the site.514
574 While there is no equivalent Instrument of Renewal in respect of Authorisation

342 in evidence, an email internal to the DPI sent on 24 July 2008 confirmed
that that the records held by the Coal Advice section within the DPI indicated
that Authorisation 342 (and Authorisation 287) had been held by “Anglo Coal”
from 2000 to the present.515 At that time, Coal Advice was assessing that
company’s application for the renewal of both Authorisations.
575 Authorisation 287 was located generally to the east of Cherrydale Park.
Authorisation 342 was located further south. Authorisation 287, an area
embracing approximately 6685 hectares (16,500 acres),516 encroached onto
the eastern portion of Cherrydale Park by approximately 300 acres. 517
576 In cross-examination by Mr Martin, Mr Rodd gave the following evidence about

the agricultural value of Cherrydale Park:
510
Exhibit K p 18.
511
Exhibit AK p 1.
512
Exhibit AL.
513
514
T 1111.
515
Exhibit AF.
516
Exhibit AL p 2.
517
T 3489.
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Q. ... Would it be fair to say that that eastern border or eastern side of
Cherrydale was the most valuable part of the property from an agricultural
point of view and therefore--
A. Oh, God yeah.
Q. Did that make it perhaps the most valuable property in the whole valley?
A. It's right up there. And I know older agents and cattle buyers and things
and that Bylong Valley through there has got a hell of reputation. Probably
some of the best cattle sold in Mudgee used to come out of the Bylong Valley.
And since having a bit to do with it these years, I'd agree wholly, entirely. 518
577 The existence of Authorisations 287 and 342, and the fact that they were due
to expire on 27 July 2008,519 was not disclosed to Edward Obeid in
negotiations with Mr Cherry prior to the issue of the Contract for Sale, neither
were they disclosed in the Contract for Sale.520 Mr Cherry gave evidence he
“had no idea that there was coal underneath Cherrydale” at the time of the
sale.521
What the accused knew of the likely coal reserves generally in the area around
Mount Penny, and what impact did that have on the Obeid family’s plans for
the use of Cherrydale Park as a rural holding and “rural retreat”?
578 While it is the Crown case that the agreement the subject of the conspiracy
might have been forged as early as 1 September 2007, it does not allege that
Cherrydale Park was purchased by the Obeid family as an act by either
Edward Obeid or Moses Obeid in furtherance of the conspiracy, or even that
the property was purchased in contemplation of the accused entering into the
unlawful agreement with Mr Macdonald of the scope and object alleged.
579 Neither does it form any part of the Crown case that when Cherrydale Park
was purchased, Edward Obeid, Moses Obeid or any member of the Obeid
family knew or believed that the property, or any of the neighbouring
properties, contained unexploited underground coal reserves, or that
Cherrydale Park was subject to any existing Authorisations issued by the DPI
or proximate to any existing ELs held by the DPI.522
518
T 513.
519
Exhibit A p 2097; T 940, 1108, 1119.
520
Pursuant to Clause 44(c) of the Contract for Sale, Mr Cherry as vendor warranted that he “has no notice” of
“any mining leases, authorities to enter and exploration licences and any application for any leases, or
authorities to enter or licences affecting the subject property”. See Exhibit A p 207.
521
T 471.
522
EL 6676 was granted to the DPI on 21 November 2006. See Exhibit A p 65.
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580 The Crown did not seek to make the case that when Mr Macdonald was told
about the prospective purchase of Cherrydale Park (that is, on the Crown case,
during the last phase of Edward Obeid’s negotiations for the purchase of the
property in September/October 2007 when the issue of water licences was in
play) he already knew of the likely extent of coal reserves in the particular area
of the Bylong Valley where Cherrydale Park was located from his own
knowledge or as the responsible Minister under the Mining Act.
581 Neither does the Crown seek to make the case that upon learning that the
Obeids had purchased Cherrydale Park, Mr Macdonald was unilaterally
motivated to make enquiries of the DPI about coal reserves in the area,
whether out of curiosity or to have a store of information which he might be in a
position to share with Edward Obeid and/or Moses Obeid to their mutual
advantage in the event that a new coal release area in the Bylong Valley was
included in an EOI process that might be launched by the Department as part
of Mr Macdonald’s general policy of expanding the potential for coal mining in
New South Wales for the fiscal and other benefits that would be generated for
New South Wales.
582 The Crown also accepted that the evidence establishes that from mid-2007 the
Obeid family were apparently genuinely motivated to purchase a rural property
closer to Sydney to foster and extend their established cattle farming business
and as a rural retreat and lifestyle investment, and that for a range of reasons,
largely personal to the Obeid family, Cherrydale Park proved to be the optimum
prospective acquisition. It is the Crown case, however, that within a few months
of the purchase of Cherrydale Park, when Edward Obeid, Moses Obeid, Paul
Obeid, Gerard Obeid and Damian Obeid learnt of coal resources on and
around Cherrydale Park, apparently from sources other than Mr Macdonald,
the Obeid family changed their focus from cattle farming to exploring the
potential for Cherrydale Park to be incorporated in a coal mining project with a
coal mining company, and that later in 2008 they took steps to acquire Donola
and Coggan Creek to form a landholders alliance to further that same
objective.
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583 In advancing that submission, the Crown appears to have expressly adopted,
or at least impliedly accept, the account given by Edward Obeid and Moses
Obeid when they were interviewed by the journalists Ms Jiminez and Mr
Shanahan on 18 December 2012 to the effect that when Moses Obeid and
Paul Obeid researched the Authorisations held by Anglo American P/L
sometime in early 2008 they realised that any mine that company developed
would be underground (as opposed to open cut). The Crown also appears to
have accepted, at least at that early stage, that with that information, Moses
Obeid and Paul Obeid assessed that the infrastructure which would be
required to develop mining operations on that scale would necessarily be
located proximate to Coggan Creek, and that if the Obeids were to acquire
Coggan Creek and Donola as properties neighbouring Cherrydale Park, they
could sell all three properties as an attractive and composite land holding to a
mining company.523
584 What the Crown did not accept is the styling of that scenario by Edward Obeid
and Moses Obeid in the Shanahan/Jiminez interview as an “exit strategy” 524 to
be activated in the event that the Anglo American P/L Authorisations were
renewed or released to market. It is the Crown case that Edward Obeid and
Moses Obeid and, it would appear, other members of their family (in particular
Paul Obeid)525 were committed from early-July 2008, at the latest, to pursuing
a joint commercial venture with a mining company in which they owned or
controlled all three properties, a prospect they had been maturing over some
months.
585 It is against that background that the Crown alleges that Edward Obeid and
Moses Obeid were motivated to enter into the conspiracy with Mr Macdonald
which had as its object that Mr Macdonald would misconduct himself in
connection with the granting of an EL over land at Mount Penny which included
Cherrydale Park, a conspiracy which on the Crown case was forged and into
which each of the accused agreed to participate no later than 9 May 2008.
523
524
525
See Paul Obeid’s role at the second Wentworth Hotel meeting and his possession, at that time, of Wiles
Map 2 at pars 1247-1252.
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586 Although the Crown does not make the submission expressly, it is implicit in
the way the Crown puts its case that by 9 May 2008, Edward Obeid and/or
Moses Obeid were keen to acquire more detailed and reliable information than
was otherwise available to them on the public record about the volume of coal
reserves under or proximate to Cherrydale Park, in order that they might
pursue the prospect of a joint venture with a mining company who might wish
to apply for a licence to explore the potential for coal mining over land which
included Cherrydale Park.
587 It is the Crown case that Mr Macdonald’s enquiries of the Department (via Mr
Gibson as his deputy Chief of Staff) on 9 May 2008 about the volume of coal
reserves in the Bylong Valley, specifically in the area of Mount Penny, were
made at that time because Edward Obeid asked him for that information to
supplement the information the family had been gathering from their own
enquiries526 and, it must be assumed, because Mr Macdonald did not have that
information to share with his co-conspirators pursuant to the conspiracy which,
on the Crown case, was already in existence at that date.
588 It is the Crown case that following the designation of the Mount Penny Coal
Release Area by the DPI by 17 June 2008 (the boundaries of which
encompassed Cherrydale Park, Donola and Coggan Creek as visualised in Mr
Whiddon’s overlay map at par 552 above) and after Moses Obeid and/or
Edward Obeid learnt of that fact from Mr Macdonald, Moses Obeid’s pursuit of
a range of commercial negotiations to best exploit that fact for the financial
benefit of his family and his associates gathered impetus. As noted earlier, Mr
Rumore, solicitor, was retained on 23 June 2008.
589 The Crown also appears to accept that while the Obeids may have initially
contemplated purchasing Donola and Coggan Creek for the purposes of cattle
grazing,527 upon learning that there were coal deposits under Cherrydale Park
both from their own researches in early 2008 and then, on the Crown case,
following the information Mr Macdonald obtained for them from the DPI in May
2008 in his commission of the first and second acts of misconduct, the Obeid
family’s interest in exploring the potential for coal exploration was stimulated, to
526
MFI 181 par 164.
527
MFI 181 par 296.
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the extent that the potential profit from cattle farming (one of the primary
motivators behind the acquisition of the property in 2007) 528 became of
secondary significance and, eventually, as the prospect of a joint venture with
Monaro Mining NL developed from about mid July 2008, of no significance at
all. The Crown submitted that the evidence leaves no room for doubt that even
when Mr Rumore was first instructed on 23 June 2008 that the Obeids were
contemplating a landholders alliance with the Boyds (a family associated with
the property development company Pace Developments 529) for the purchase of
Donola and Coggan Creek, a mining deal was already under contemplation. 530
590 It is also the Crown case that the picturesque setting of Cherrydale Park and its
prime location as a rural retreat for the Obeid family and for Edward Obeid in
retirement (another factor the Crown accepts apparently motivated the initial
purchase of the property), was also of diminishing significance, including to
Edward Obeid, by the time Paul Obeid and Moses Obeid sought to attract the
financial backing of Lehman Brothers to a joint mining venture in their meetings
with Mr Brook on 3 and 7 July 2008.531 It is the Crown case that the concept of
Cherrydale Park being used as a “rural retreat” was ultimately of no
significance at all as the joint venture with Monaro Mining NL progressively
crystallised following Mr Brook’s approach to the company on behalf of Moses
Obeid and his brothers on 15 July 2008 (on the Crown case with confidential
information provided by Mr Macdonald to facilitate that approach, the conduct
the subject of the seventh act of misconduct).
Mr Macdonald’s knowledge of the ownership of Cherrydale Park as a fact

indispensable to proof of the guilt of each of the accused
591 The Crown seeks to prove the fact of Mr Macdonald’s knowledge of the
Obeids’ ownership of a rural property (Cherrydale Park) in the Bylong Valley
near Mount Penny for two related purposes:
528
Exhibit AV(2). It was contemplated that extending the cattle herd would allow the property to be
maintained at no cost.
529
T 1946.
530
MFI 181 par 289.
531
Mr Brook accepted in cross -examination that at the second Wentworth Hotel meeting he was told of the
beauty of Cherrydale Park but upon learning of the coal reserves under the property, “it is going to be a shame
when the garden gets destroyed” to make room for “a mine site office”. See T 3088.
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(a) As an intermediate fact indispensable to proof of the guilt of all

three accused of the offence charged.532
(b) As the factual foundation for proving that Mr Macdonald told a
deliberate lie to Mr Gibson when, in October 2009, at a time
when there was speculation that Edward Obeid had an interest in
property near Mount Penny (including the article published by
Tracy Ong on 28 October 2009533), Mr Gibson raised that issue
with Mr Macdonald. Mr Gibson gave evidence that he was told
by Mr Macdonald that “Eddie’s property’s over the ridge and
away from Mount Penny.”534 The Crown submitted 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.535
592 I will return to consider whether Mr Macdonald told a deliberate lie to Mr
Gibson later, after determining whether I am satisfied the Crown has proved
the existence of the conspiracy beyond reasonable doubt.
593 Although, as I have emphasised, the Crown does not allege that Cherrydale
Park was purchased by the Obeid family as an act in furtherance of the
conspiracy or even in contemplation of it, the Crown does allege that between
about 15 September 2007, when Edward Obeid was first engaged in spirited
negotiations with Mr Cherry to purchase Cherrydale Park, and 27 September
2007 when the Contract for Sale was executed, he told Mr Macdonald about
the prospective purchase of the property, and either at that time, or at some
later date but before 9 May 2008, Mr Macdonald learnt (from either or both of
Edward Obeid and Moses Obeid) that the property was situated near “Mount
Penny” in the “Bylong Valley”.
594 The Crown has characterised the Shepherd fact as comprehending that Mr
Macdonald knew that the Obeid family were purchasing or had purchased a
rural property (Cherrydale Park) that was “situated near Mount Penny in the
Bylong Valley” (emphasis added).536
595 The Crown accepted that if it is to prove the case it prosecutes, it is obliged to
prove as a primary fact and beyond reasonable doubt that no later than 9 May
532
533
Exhibit AS.
534
T 2504.
535
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63.
536
MFI 181 par 107.
5KIPGFD[#WUV.++
2008 when, on the Crown case, Mr Macdonald had Mr Gibson make enquiries
of the DPI about the volume of coal reserves in the area of Mount Penny (the
conduct the subject of the first act of misconduct)537 and, thereafter when he
committed each of the successive seven acts of wilful misconduct in
connection with the granting of the EL at Mount Penny for the improper
purpose alleged,538 he knew that the Obeids owned a rural property
(Cherrydale Park) situated near Mount Penny in the Bylong Valley. 539
596 The Crown accepted that proof of Mr Macdonald’s knowledge of that fact is
indispensable to proof of the conspiracy540 since, without proof that Mr
Macdonald knew that the Obeids owned Cherrydale Park, and the geographic
location of the property in the Bylong Valley near Mount Penny, the things
allegedly said and done by him between 9 May 2008 and January 2009,
constituting what the Crown says are the eight acts of misconduct committed
by him in furtherance of the conspiracy and from which the existence of the
conspiracy is inferred, are deprived of an essential feature of the improper
purpose the Crown identifies as inherent in the conspiratorial agreement.
Additionally, insofar as a breach of Mr Macdonald’s duty of impartiality is relied
upon, Mr Macdonald’s knowledge of the Obeids’ ownership of Cherrydale Park
is what the Crown relied upon to prove his wilful breach of that duty.
Sources of evidence relied upon by the Crown to prove Mr Macdonald’s

knowledge beyond reasonable doubt
597 There is no direct evidence that Mr Macdonald was told by Edward Obeid or
Moses Obeid that Cherrydale Park had been purchased by an Obeid family
company in September 2007, or that he came to know of their ownership of
that property from any other source.
598 The Crown relied upon a number of pieces of circumstantial evidence to prove,
by inference, Mr Macdonald’s knowledge of that fact. In the Crown’s
submission, the combined probative force of a number of interrelated facts and
circumstances, some of which are established by the evidence and others
which are proved by inference, lead inevitably to me being satisfied, beyond
537
MFI 134/1 [3(a)].
538
MFI 134/1.
539
MFI 180; T 3609.
540
5KIPGFD[#WUV.++
reasonable doubt, that Mr Macdonald knew from at least early 2008, if not
earlier, but no later than 9 May 2008, that the Obeids had not only recently
acquired a rural property known as “Cherrydale Park”, but that it was situated
in the area of Mount Penny in the Bylong Valley.
599 Some of the individual facts and circumstances relied upon by the Crown to
prove Mr Macdonald’s knowledge of that fact are not in dispute. For example,
the Crown places considerable reliance on Edward Obeid having told the
journalists Ms Jiminez and Mr Shanahan in the course of being interviewed on
18 December 2012 that after having spent the “summer of 2008” at Cherrydale
Park he asked Mr Macdonald, upon his return to Parliament, “if the Department
has any knowledge of a mine being planned for Bylong by Anglo”, 541 a request
for information which the Crown submitted must have been in the context of
informing Mr Macdonald that he had bought a rural property (Cherrydale Park)
in the Bylong Valley near Mount Penny.
600 Other facts are in dispute. For example, there is considerable conflict as to
whether what became referred to in the trial as the water licences issue 542
provides a legitimate evidential basis to support the inference that in
September 2007 Mr Macdonald asked Mr Badenoch (his Chief of Staff) to
make enquiries about the water licences, knowing that they attached to
Cherrydale Park, and that he did so at Edward Obeid’s request at a time when
negotiations for the purchase of the property were underway. There is also
considerable conflict as to the weight, if any, that might be attributed to Mrs
Fitzhenry’s evidence of a conversation she said she overheard her husband
have with Moses Obeid where he told her that Mr Macdonald told “his father”
about “coal leases” over Cherrydale Park.543
601 In the Crown’s submission, however, even if doubt attends one or more of the
individual facts and circumstances relied upon to prove Mr Macdonald’s
knowledge of the Shepherd fact, when all the evidence which bears relevantly
upon proof of that fact is considered collectively, there is no other rational or
541
Exhibit AV(2) p 27 of 40. I later discuss the probative weight of that admission in proving the participation of
Edward Obeid in the conspiracy.
542
543
T 1304.
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reasonable explanation for what Mr Macdonald has been shown to have said
and done in connection with the granting of an EL at Mount Penny (including
his involvement in the process of the Mount Penny Coal Release Area being
designated for inclusion in the EOI process for the grant of an EL at Mount
Penny) without knowing of the Obeids’ ownership of a rural property
(Cherrydale Park) in the Bylong Valley near Mount Penny.
602 In the Crown’s submission, an additional source of evidence in proof of Mr

Macdonald’s knowledge of the geographic location of Cherrydale Park in the
Bylong Valley near Mount Penny is the conduct comprising the first, second
and fifth acts of misconduct themselves.
603 There is a certain circularity in that submission if it proceeds on the basis that
Mr Macdonald’s dealings with the Department in May and June 2008 were acts
of misconduct committed in breach of his duty of impartiality because he knew
about the Obeids owning land near Mount Penny in the Bylong Valley. On the
other hand, if the Crown’s submission invites focus on the timing and the
content of Mr Macdonald’s dealings with the DPI in May and June 2008, in
particular, if the Crown demonstrates Mr Macdonald’s focused enquiries about
“Mount Penny” at that time are otherwise inexplicable, then there is no
necessary circularity. However, if the Crown fails to establish that Mr
Macdonald’s dealings at that time were acts of misconduct committed in
furtherance of the conspiracy because it fails to prove Mr Macdonald’s
knowledge of the Obeids’ ownership of Cherrydale Park (perhaps because I
am satisfied of the reasonable possibility that he came to learn about the
Obeids’ property being within the newly created Mount Penny Coal Release
Area entirely incidental to his otherwise legitimate engagement with the
Department as the Minister for Mineral Resources) there is no circularity in the
Crown’s reasoning, but the Crown case is undermined for other reasons.
604 Another source of evidence independent of Mr Macdonald’s dealings with the

DPI in May and June 2008 might be the opportunity Mr Macdonald had, before
that time, to meet and discuss with Moses Obeid and Edward Obeid their
growing appreciation and awareness of the potential coal resource under
Cherrydale Park, and, in that same timeframe, the opportunity they had to raise
5KIPGFD[#WUV.++
with Mr Macdonald whether he knew of the extent of coal reserves proximate

to Cherrydale Park and in the Bylong Valley more generally. In considering the
question, I am invited by the Crown to consider the regularity of telephone
contact, in particular between Mr Macdonald and Edward Obeid in the days
before 9 May 2008 as reflected in the Telephone Summary.
605 I am also invited by the Crown to accept Mrs Fitzhenry’s evidence that she
overheard Moses Obeid telling her husband in late 2007 or early 2008 that Mr
Macdonald had told Edward Obeid about “coal leases at Cherrydale”, as
another source of evidence to prove Mr Macdonald’s knowledge that the
Obeids owned a rural property (Cherrydale Park) in the Bylong Valley near
Mount Penny. The evidence of Mr and Mrs Fitzhenry was the subject of a
substantial credit attack. Their evidence will need to be considered in detail
before it is available to the Crown in proof of any aspect of its case. I will return
to deal with whether their evidence carries any probative weight in proof of Mr
Macdonald’s knowledge of the Obeids’ rural holdings in the Bylong Valley near
Mount Penny (Cherrydale Park) presently.
606 Finally, the sufficiency of the evidence to prove the Shepherd fact might also
include a consideration of what might have motivated Mr Macdonald not merely
to listen disinterestedly to Moses Obeid and Edward Obeid’s apparent appetite
to explore the potential to exploit the available coal resource under their land
(and perhaps even their interest in acquiring surrounding properties to
maximise that potential), but for him to enter into a criminal conspiracy with
them with the knowledge of the location of their property colouring what the
Crown alleges were the proven and successive acts of misconduct he
committed in furtherance of achieving their common objective.
The submissions of the accused directed to proof of the Shepherd fact and its
relationship with the “but for” test
607 Each of the accused submitted that when the facts and circumstances relied
upon by the Crown are considered together, they do not prove, to the requisite
criminal standard, that at the time Mr Macdonald is alleged to have committed
any of the acts of misconduct upon which proof of the conspiracy depends, he
knew the Obeids owned a property called Cherrydale Park or, if he knew that
5KIPGFD[#WUV.++
fact, that he knew its geographic location in the Bylong Valley near Mount
Penny.
608 The accused submitted there was a paucity of reliable evidence to prove Mr
Macdonald knew of the family’s purchase of Cherrydale Park in September
2007 or at any time proximate to that date. The accused also submitted that
even if the Crown does prove that Mr Macdonald came to learn of the Obeids’
rural holdings in the Bylong Valley at some time after the Mount Penny Coal
Release Area was designated by the DPI in mid-June 2008 and before 9
September 2008 when the EOI process (which included Mount Penny as one
of eleven small areas for the grant of an EL) was publicly launched, the Crown
has failed to prove that it was his knowledge of that fact that motivated him to
act as he did in his dealings with the DPI as Minister for Mineral Resources in
May and June 2008, the conduct particularised by the Crown as the subject of
the first, second and fifth acts of misconduct.
609 The accused submitted that the Crown has failed to discount, or negative, the
reasonable and rational possibility, arising directly from the evidence, that what
Mr Macdonald actually did in his dealings with the DPI, initially in May 2008
and then in June 2008 when he made focused enquiries of the DPI as to the
possibility of releasing a new small to medium coal release area in the Bylong
Valley, and then later in July and August 2008 when he was engaged with the
DPI in the process of approving the inclusion of the Mount Penny Coal Release
Area in the EOI process for the grant of an EL, was entirely consistent with his
commitment to the release of new small to medium coal exploration areas in
the Western Coalfield in New South Wales to attract the involvement of small
to medium mining companies.
610 Contrary to the inference contended for by the Crown, each of the accused
submitted that the countervailing inference is that Mr Macdonald’s dealings
with the Department throughout that period was not for the improper purpose of
advancing the private interests of Edward Obeid, Moses Obeid or members of
their family and/or associates, knowing they owned land in the area of Mount
Penny, but for legitimate policy purposes being pursued by him in the public
interest as a responsible Minister.
5KIPGFD[#WUV.++
611 The accused submitted that in 2007/2008, with the global price of coal being at
a premium, the fiscal incentives in seeking to exploit the coal reserves in New
South Wales generally and within the Western Coalfield in particular, were
obvious and the financial benefits equally as patent. The accused also
emphasised that the release of new areas for coal exploration would address
the concerns of smaller industry players that large mining companies were
controlling the industry including by “land parking” coal rich areas under
existing ELs or authorisations.
612 With Mr Macdonald’s legitimate dealings with the DPI and the coal mining
sector analysed in that way, the accused submitted that the Crown has failed to
discharge the obligation of proving that “but for” the improper purpose of
benefiting or advantaging Edward Obeid, Moses Obeid or their family and
associates, Mr Macdonald would not have misconducted himself as the Crown
has alleged he did in connection with the granting of the EL at Mount Penny by
committing eight successive acts of misconduct. They submitted the Crown
had failed to prove that fact, not only because it has failed to prove beyond
reasonable doubt that Mr Macdonald knew of the Obeids’ rural holdings in the
area of Mount Penny in the Bylong Valley, but also because, to the extent Mr
Macdonald acted as he is alleged to have acted, he has been shown to have
acted for legitimate policy purposes. That is, the accused submitted the Crown
has failed to discharge the “but for” test.
The question when Mr Macdonald learnt of the Obeids’ purchase of Cherrydale

Park (if he did)
613 Even if I am satisfied that the probabilities favour a finding that Mr Macdonald
was the source of the enquiries about water licences made by Mr Badenoch in
September 2007 (a matter which I will consider presently), a related question
arises as to whether I am also satisfied that it was at that time that Mr
Macdonald learnt of the geographic location of Cherrydale Park (in the Bylong
Valley situated near Mount Penny), as distinct from the possibility that
information was something Mr Macdonald came to learn of after Cherrydale
Park was purchased, perhaps even after the Obeids learnt that there were coal
deposits under the property in early 2008, perhaps even further still, after the
5KIPGFD[#WUV.++
Mount Penny Coal Release Area (which encompassed Cherrydale Park) had
been designated by the DPI in mid-June 2008.
614 If, after giving careful consideration to all of the evidence bearing upon proof of
Mr Macdonald’s knowledge that the Obeids owned Cherrydale Park, and that
he knew of its geographic location near Mount Penny in the Bylong Valley,
there remains a reasonable possibility that Mr Macdonald came to learn of that
fact after he had undertaken his own independent enquiries of the DPI about
the volume of coal resources in that area, then a central aspect of the structure
of the Crown case falls away.
615 In considering that question, it will be necessary to consider what other

evidence there is in the Crown case which might allow for a finding that Mr
Macdonald knew of the geographic location of Cherrydale Park on or before 9
May 2008. As I have already emphasised, that date is critical. If the Crown fails
to prove Mr Macdonald had that knowledge at the time he is alleged to have
made focused enquiries of the Department in May 2008 about coal reserves
near Mount Penny in the Bylong Valley (the first and second acts of
misconduct), and that it was with that knowledge that he is alleged to have
directed the DPI in June 2008 to create a small coal release area by reducing
the potential open cut coal resource depicted in Wiles Map 2 to the east (the
fifth act of misconduct), the Crown case on the charge it has elected to
prosecute, namely a conspiracy which was in existence as at 9 May 2008 will
be seriously undermined.
What does the water licences issue reveal about Mr Macdonald’s knowledge of
the ownership of Cherrydale Park?
616 So far as the issue of the water licences is concerned, the inference for which
the Crown contends is that I will be satisfied that enquiries made by Mr
Macdonald’s Chief of Staff, Mr Badenoch, about the water licences (identified
by number) that attached to Cherrydale Park by an email Mr Badenoch, Mr
Macdonald’s Chief of Staff, sent to Mr Gardoll of the Department of Water and
Energy on 26 September 2007 544 were made (a) at Mr Macdonald’s request
and (b) on behalf of Edward Obeid at a time when Edward Obeid was
544
Set out in full at par 622.
5KIPGFD[#WUV.++
positioning himself as a prospective purchaser of Cherrydale Park. The Crown

invites me to draw the inference that it was at that time that Mr Macdonald
learnt that Cherrydale Park was in the Bylong Valley situated near Mount
Penny, as information Edward Obeid was likely to have shared with Mr
Macdonald incidental to asking for his assistance concerning the water
licences.
617 The issue of the water licences arose in the course of negotiations for the sale
of Cherrydale Park which included Mr Cherry’s offer of vendor finance through
the Cherry Superannuation Fund. One of the terms upon which finance was to
be provided concerned the eight water licences identified by their individual
licence numbers and noted on the contract of sale as the property of the
vendors. Although the licences formed part of the property the subject of sale
(and noted on contract of sale for that reason) they were only to be transferred
after the discharge of the registered first mortgage over the Cherrydale
property which secured the vendor finance.
618 That state of affairs was reflected in the letter from the solicitors for Mr Cherry
of 26 September 2007 to Damian Obeid, one of four directors of Locaway P/L
as purchaser (the remaining directors being his brothers Paul Obeid, Moses
Obeid and Edward Obeid Jnr).
619 The Crown adduced evidence from Mr Cherry that without a licence to access
water, or if the water licences that attached to Cherrydale were somehow
compromised, the property would essentially become dry farming land
substantially reducing its commercial value and undermining the value of the
property as security under the vendor finance loan agreement.
620 The grant of a water licence, and the entitlement of the licence holder to extract
water under that licence, is controlled the Department of Natural Resources. Mr
Macdonald had no responsibility for the allocation of water rights or any
Ministerial responsibilities over the issue of water licences.
621 These are matters of fact and not in dispute.
5KIPGFD[#WUV.++
Mr Badenoch’s evidence concerning the water licences

622 What was in dispute was the identity of the person on whose behalf Mr
Badenoch sent an email to Mr Gardoll on 26 September 2007 at 6:32pm which
reads as follows:
Hi Brian,
As discussed, could you please chase up the following licence numbers for
me.
[the licence numbers are then set out in a sequence that corresponds with the
sequence in which they are noted on the contract of sale]
Any info you might be able to provide, would be most appreciated.545
623 There is no evidence that the email was responded to by return email. Mr
Gardoll was not called in the Crown case.
624 As at 26 September 2007, Adam Badenoch held the position of Chief of Staff
to Mr Macdonald as Minister for Mineral Resources. He was appointed to that
position following the New South Wales State election in March 2007. 546 Mr
Badenoch gave the following evidence as to his duties and responsibilities in
the role of Chief of Staff:
I was responsible for the running of the office as a whole, ensuring that it
functioned appropriately, that people performed their duties appropriately. I
took the lead on certain sensitive policy matters and I acted as a
representative of the ministerial office in conjunction with numerous
stakeholder engagements.547
625 Mr Badenoch gave evidence, consistent with the evidence of other witnesses,
that Mr Macdonald had an office at Parliament House and another office at
Governor Macquarie Tower with the former only being used on Parliamentary
sitting days.548 He gave evidence that the Parliamentary office was “a very
open, dynamic environment ... it was open to a significant number of
people”.549
626 Mr Badenoch gave evidence that on a Parliamentary sitting day it would not be
unusual for up to 14 staff members to be in Mr Macdonald’s Ministerial office
545
Exhibit A p 168.001.
546
T 2308-2309.
547
T 2309.
548
T 2310.
549
T 2310.
5KIPGFD[#WUV.++
sharing ten desks that “abutted” one another, exclusive of the Minister’s office
and the desk occupied by his personal assistant.550
627 Mr Badenoch gave evidence that although he had very cursory dealings with
Edward Obeid, he had never met any members of Mr Obeid’s family. He did
observe Edward Obeid to attend Mr Macdonald’s Parliamentary office but had
no recall of him attending Mr Macdonald’s office at Governor Macquarie Tower.
628 Mr Badenoch gave the following evidence about his relationship with Edward
Obeid as at September 2007:
I don’t know that I would have said personal dealings, no. I think I have given
evidence on this before, that Mr Obeid and my relationship was largely
restricted to salutations as we passed one another or he came to see the
Minister for whatever the reason may have been.551
629 In cross-examination by Mr Martin, Mr Badenoch confirmed he had a “difficult
relationship”552 with Edward Obeid from mid-2006 onwards following an
incident where Mr Badenoch was critical of Edward Obeid in the company of
others. That criticism was then relayed to Edward Obeid by another person,
prompting Edward Obeid to place a call to Mr Macdonald to request that Mr
Badenoch be dismissed as Mr Macdonald’s Chief of Staff.553
630 Mr Badenoch was able to confirm that, at the time of sending the email to Mr
Gardoll on 26 September 2007, Mr Macdonald did not have Ministerial
responsibility for “the water aspect” of the Department of Water and Energy. By
September 2007, that responsibility had been allocated to different Ministerial
portfolio. Mr Badenoch gave evidence that Mr Macdonald did retain “policy
responsibility for energy and … budgetary responsibility for the entire
[Department of Water and Energy]”.554
631 Mr Badenoch was unable, either by reference to the alphabetic or numeric

identifiers he typed into the email, to identify the “specific type of licence” about
which he was seeking information.555 He said neither the identifying number
“20” and letters “BL” were a formulation or identifying number with which he
550
T 2451.
551
T 2310-2311.
552
T 2441-2442.
553
T 2441-2443.
554
T 2312.
555
T 2312.
5KIPGFD[#WUV.++
was familiar, nor, was the formulation of the licence number in its entirety
something which he had encountered in the course of his duties. He gave
evidence that he had no current recall as to why he sent the email, other than
what is revealed in the text of the email, and that he was seeking the
information because he did not have it. Mr Badenoch accepted that amongst a
number of possible explanations for sending the email (having no personal
interest in any rural land or water licence),556 it was “possible” he made the
enquiry or sent the request to Mr Gardoll on Mr Macdonald’s behalf. 557 The
Crown asked no further questions of Mr Badenoch concerning the email.
632 When asked by Mr Martin about the email, Mr Badenoch said it would be “very
- highly unusual”558 if that enquiry were made by him at the request of one of
the Mr Macdonald’s staff. He did accept, however, that the request could have
issued from any Ministerial staff of other Ministers.
633 Mr Badenoch also accepted the proposition put to him by Mr Martin that not
only was he well known as having expertise in natural resources and water
issues but that, as at September 2007 and throughout the years of drought in
the early 2000s, “water … was a very live issue for the government.” 559
634 He also agreed with the following propositions:
Q. Is it the case that all staff in the ministerial office knew of your knowledge of
water issues?
A. Yes, they did.
Q. Your knowledge of water issues and specifics in the management of water
was also known around the New South Wales State Government and by
stakeholders in the water industry?
A. That’s correct.
Q. I suggest that it wouldn't be unusual for you personally to field an inquiry
about water?
A. No, no, not at all.
Q. Or a water licence?
A. No, no, I think people would just gravitate to if they knew someone who
knew something or could do something then they would ask them the
question.
Q. That was the case even after you left that portfolio or the portfolio of water
shifted out of Minister Macdonald’s formal control?
556
T 2313.
557
T 2316.
558
T 2448.
559
T 2445-2446.
5KIPGFD[#WUV.++
A. That’s correct. I mean, I just need to sort of make the point again, we did
not have policy responsibility but we had budgetary responsibility for the entire
department.560
635 Ultimately, Mr Badenoch’s evidence, including after cross-examination, was to
the net effect that he has no recollection of sending the email, no recollection of
why he sent the email, no recollection of discussing the subject of the email
with Mr Gardoll or anyone else, and no recollection of receiving any response
to his email.
636 It is the Crown case, that despite Mr Badenoch having no recollection of

sending the email, including no memory of any discussions with Mr Gardoll
which preceded it or any memory of the person on whose behalf he had those
discussions, he was able to reason to the conclusion that the enquiry about the
water licences was not made directly on behalf of Edward Obeid (or any
member of his family) and it was not an enquiry initiated by him on his own
behalf. He also gave evidence that if the enquiry had been made at the request
of Mr Macdonald, and Mr Macdonald had told him the enquiry was made on
behalf of Edward Obeid, he would likely have remembered that. In the Crown’s
submission, in those circumstances, the only rational inference is that Mr
Macdonald asked Mr Badenoch to make the enquiry on Edward Obeid’s behalf
without giving Mr Badenoch any explanation for doing so, including and
specifically without making any reference to Edward Obeid.
637 The Crown also relied upon evidence from Mr Cherry that before the
conveyance of the property settled he was contacted by Hermantha de Silva
from what he described as the “Department of Water” who claimed to have
heard that Cherrydale Park may be sold and was concerned about whether the
unlimited water licence should be preserved.
638 It was in the course of that phone call that Mr Cherry learnt of the identity of
Edward Obeid as the prospective purchaser. Mr Cherry explained:
Q. Just going to the commencement of your discussion with Edward Obeid by

telephone after having had this conversation with Mr De Silva. Did the
conversation commence on the topic of what, if any, role Edward Obeid had
had which had given rise to Mr De Silva contacting you?
A. Mr De Silva did not I asked I found out it was Obeid because I asked
560
T 2446.
5KIPGFD[#WUV.++
Hemantha De Silva had he talked to anybody about it, he said "My boss" and I
said, "Who's your boss?"
Q. Yes?
A. And he said "um", equivocated, and finally I got out of him Obeid's name. 561
639 Following the telephone conversation with Mr De Silva, Mr Cherry called
Edward Obeid. He gave the following evidence in relation to that phone call:
Q. What did Mr Edward Obeid say?

A. Mr Obeid, as I said before, was of the view that a purchaser had the right to
know what the water supply situation was and whether the unlimited licence
would continue. He said he had that right and obviously I said he didn't. But
that was quite a lengthy telephone conversation accompanied by some angry
words from me.
Q. To your recollection what was the status when the telephone conversation
ended as to this issue of the inquiry made about the water licences?
A. That he could well have facilitated a review of the water licences and they
would come back to a standard format of 6.4 litres, 6.4 megalitres per hectare,
or was it 6.4 hectares? A megalitre is 6.4 hectares, yep. 562
640 Mr Cherry also gave evidence that during that call, Edward Obeid confirmed he
had contacted the “Head of the Department of Water and Energy” to attempt to
establish volumetric control in respect of the water licences at Cherrydale Park.
Mr Cherry was also told that Steve Dunn at the “Maritime Services Board” had
examined the file and resolved the issue. Edward Obeid provided Mr Dunn’s
telephone number to Mr Cherry. Mr Cherry then called Mr Dunn, who told him
that there was no prospect of there being a reduction in the unlimited water
supply at Cherrydale Park.563
641 An entry in Edward Obeid’s diary on 26 September 2007, the day of Mr

Badenoch’s email enquiry, read “Ring Steve Dunn – Licence”.564
I am satisfied Mr Badenoch made the water licences enquiry at Mr

Macdonald’s request
642 Whilst it is clear that Mr Macdonald was not the Minister with responsibility for
the issue of water licences, the fact that an enquiry about water licences that
indisputably attach to Cherrydale Park was made of the relevant ministry via Mr
Badenoch, in my view, supports the Crown’s submission that the email enquiry
Mr Badenoch made of Mr Gardoll was made at Mr Macdonald’s request.
561
T 476.
562
T 477.
563
T 479.
564
Exhibit A p 161.
5KIPGFD[#WUV.++
Furthermore, and despite Mr Badenoch’s inability to nominate Mr Macdonald

as the person on whose behalf he made the enquiry, and despite the fact that
there may be other people who may have made that enquiry of him given his
reputation as the “go to” person when water issues were raised, in all the
circumstances as I see them prevailing at the relevant time, I am satisfied there
is a compelling inference that the enquiry Mr Badenoch made of Mr Gardoll
was made on behalf of Mr Macdonald at Edward Obeid’s request. The question
remains whether that finding allows for the further finding that as at September
2007, Mr Macdonald learnt that Cherrydale Park was situated near Mount
Penny in the Bylong Valley.
643 Despite being satisfied that Mr Macdonald asked Mr Badenoch in September

2007 to make enquiries about the water licences that attached to Cherrydale
Park on behalf of Edward Obeid, and despite being satisfied that, at that time,
Mr Macdonald probably learnt that Cherrydale Park was in the Bylong Valley
as a matter of fact incidental to Edward Obeid asking for Mr Macdonald’s
assistance, neither that fact, nor the further fact that sometime in late February
or early March 2008 Edward Obeid asked Mr Macdonald whether the
Department had any knowledge of a mine being planned “in Bylong by
Anglo,”565 including inferences that might be legitimately drawn from that
evidence,566 persuades me that the Crown has proved beyond reasonable
doubt that Mr Macdonald must also have learnt that Cherrydale Park was in the
Bylong Valley situated near Mount Penny (emphasis added). That is
significant.
644 That added feature of the state of knowledge the Crown seeks to attribute to
Mr Macdonald is critical to the case the Crown prosecutes, in the sense that it
is fundamental to proof of the Crown case that I am persuaded that Mr
Macdonald agreed to misconduct himself as the Minister for Mineral Resources
in connection with the granting of an EL at Mount Penny for the improper
purpose of advancing the interests of Edward Obeid and/or Moses Obeid
565
566
In circumstances where there is no evidence that Mr Macdonald made that enquiry himself or that he
otherwise learnt of the location of Authorisation 287 and its encroachment on Cherrydale Park, I am not
prepared to draw the inference that Mr Macdonald learnt of Cherrydale Park being situated near Mount
Penny by that means.
5KIPGFD[#WUV.++
and/or their family members and/or associates, because he knew that the
Obeids had rural landholdings in the area of Mount Penny.
What weight attached to the first and second acts of misconduct in proof of
the Shepherd fact?
645 As I noted earlier, in proof of the Shepherd fact the Crown also relied on Mr
Macdonald’s dealings with the DPI on 9 and 14 May 2008 where it was alleged
he sought information via Mr Gibson about coal reserves in the Bylong Valley
in the area of Mount Penny567 (the conduct the subject of the first and second
acts of misconduct), and the inference that might be drawn about Mr
Macdonald’s knowledge of the precise location of Cherrydale Park from a
consideration of what the evidence is capable of revealing about what
motivated him to make those enquiries of the Department at that time and in
those precise terms.
646 In the Crown’s submission, when the fact that Mr Macdonald’s made those
enquiries of the DPI in May 2008 (a fact not in dispute) are considered together
with the enquiries he made on behalf of Edward Obeid in September 2007
about water licences attaching to Cherrydale Park (a fact I have found proved),
coupled with the enquiries Edward Obeid told the journalists he made of Mr
Macdonald in early 2008 about the prospect of a mine in the Bylong Valley, 568
and the inferences legitimately drawn from that combination of primary facts, I
will be persuaded that the Shepherd fact has been proved beyond reasonable
doubt.
647 That submission has considerable force. I prefer, however, to reserve judgment
on whether the Crown has proved the Shepherd fact as characterised by the
Crown until I have considered the evidence adduced by the Crown in proof of
the first and second acts of misconduct.
648 It is important to emphasise that it does not follow that proof of the Shepherd
fact in the manner contended for by the Crown, including the evidence
comprehended by the first and second acts of misconduct, leads inexorably to
proof of the first and second acts of misconduct being acts committed by Mr
567
See the evidence of Mr Gibson which follows and the 9 May and 14 May email trail that Mr Macdonald’s
enquiry of Mr Gibson initiated.
568
5KIPGFD[#WUV.++
Macdonald in furtherance of the conspiracy alleged. Neither does it follow,

more generally, that proof of Mr Macdonald’s knowledge that the Obeids
owned Cherrydale Park in the Bylong Valley near Mount Penny (that is, proof
of the Shepherd fact) leads inexorably to proof of the existence of the
conspiracy alleged. As noted earlier, the accused point to a number of what are
said to be rational and innocent explanations arising from the evidence for Mr
Macdonald, as the Minister for Mineral Resources, to have focused his
enquiries of the DPI in May 2008 on coal reserves in an area in the Bylong
Valley in which Mount Penny was mentioned, even were he aware that the
Obeids owned property in the area by that time.
649 Before turning to consider whether the Crown has established the first and
second acts of misconduct and, if so, whether proof of the facts foundational to
proving those acts assist the Crown in proving the Shepherd fact beyond
reasonable doubt, it is necessary to address the evidence which puts proof of
those facts into context.
650 Both the Crown and the accused adduced compendious evidence concerning
the historical and contemporary nature of coal exploration in New South Wales
as at 2007 and 2008. From the Crown’s perspective, that evidence provided
the necessary context in which the conspiracy was forged and executed and,
from the accused’s perspective, as a basis for generating a doubt as to proof of
that fact where, it is the accused’s case that Mr Macdonald’s conduct, as
Minister for Mineral Resources, is capable of a rational explanation inconsistent
with the improper purpose the Crown attributes to him.
651 The evidence as to what coal is and how it is mined was not in dispute.
However, it will need to be addressed, at least in a summary way, in order to
deal with the comprehensive submissions from Mr Martin and Mr Neil directed
to undermining the Crown case that the conspiracy charged was in existence
by 9 May 2008 and that each successive act of alleged misconduct after that
date supports that conclusion.
652 The historical and contemporary nature of coal exploration in New South Wales
also provides context for the submissions advanced by the Crown and the
accused concerning the various departmental and government imperatives,
5KIPGFD[#WUV.++
current during the timeframe comprehended by the conspiracy, which focused

on the DPI and the Minister forging and maintaining a proactive engagement
with the coal industry, including, most particularly, the Minister’s policy
initiatives, to which I have already referred, which were designed to promote
the release of new small to medium coal exploration areas within the Western
Coalfield at the very time when, on the Crown case, Mr Macdonald committed
the first act of misconduct.
653 In addition, significant aspects of the evidence bearing both upon proof of the
first, second and fifth acts of misconduct relied upon by the Crown to prove
both the existence of the conspiracy and the criminal complicity of each of the
accused in the conspiracy, also need to be analysed in the context of the
institutional relationship between the Office of the Minister for Mineral
Resources and the DPI.
The staff structures within the Minister’s office and the DPI
654 The relationship between the Minister’s office and the Department, including
the protocols according to which requests for information about coal resources
in New South Wales were made of the DPI at the Minister’s request, and the
protocols according to which that information was provided to the Minister or
his office included, most particularly, in so far as the events of the trial are
concerned, the treatment of Ministerial Briefings and related and/or attached
documents that were generated in the process of the Mount Penny Coal
Release Area being designated by the Department and then included in the
EOI process as one of the eleven areas for the grant of an EL. That evidence
included whether those documents, or the information they contained, were
confidential or treated as such by those who were privy to them, that is either in
the hands of officers of the Department who were the source of that information
or members of the Minister’s staff as the recipients of the information, including
the Minister himself. I have already referred to that evidence at some length
when addressing the issue between the parties as to the scope of Mr
Macdonald’s Ministerial duty of confidentiality.569
569
See earlier at par 259 and following.
5KIPGFD[#WUV.++
655 In the immediate context of proof of the first and second acts of misconduct,
those relationships and the protocols which underpin them might inform
whether Mr Macdonald’s particular dealings with the Department in May and
June 2008 in relation to his enquiry about coal reserves in the area of Mount
Penny, were dealings in which he would not have engaged “but for” the
improper purpose of advancing the private interests of the Obeid family (or
their friends and associates) in furtherance of the conspiracy charged, and the
challenge mounted by the accused to the evidence being probative of that fact.
656 The internal staff structures of the DPI and the Minister’s office and, so far as
concerns the DPI, the relationship between the Sydney office of the DPI and
the office at Maitland from which the Coal and Petroleum Development Group
operated, were reproduced in a diagram and used throughout the trial as an
aide memoire as below:570
657 Departmental officers, including Dr Sheldrake, the Director-General of the DPI,

Alan Coutts, the Deputy-Director of the DPI with responsibility for the Mineral
570
MFI 7.
5KIPGFD[#WUV.++
Resources Division, Mr Mullard as the Director of the Coal and Petroleum

Development Group within the Mineral Resources Division of the DPI and
officers in that Division who were directly responsible for the management coal
resources, including Ms Wiles, Manager of the Coal Advice/Coal Geology
Section (the author of Wiles Map 1 and Wiles Map 2), Mr Larkings, the
manager of the Coal Resource Assessment Section (the recipient of Mr
Gibson’s email of 9 May 2008) and Ms Moloney, Senior Project Officer of the
Development Coordination section from 2008 to early 2009,571 who was
charged with the task of identifying the eleven coal release areas for inclusion
in the EOI process in which the Mount Penny Coal Release Area was
designated as Area 7, all gave evidence in the trial. I will consider their
evidence presently.
658 Mr Badenoch, Mr Macdonald’s Chief of Staff from 2007 until December 2008,
and Mr Gibson, Mr Macdonald’s Deputy Chief of Staff at that time, 572 gave
evidence of the protocols according to which the relationship between the
Minister’s office and the DPI, principally via Mr Gibson as the Minister’s Energy
and Mining Policy Advisor,573 was mediated, regulated and coordinated. As
noted earlier, Mr Badenoch gave evidence that Mr Macdonald had Ministerial
officers at Governor Macquarie Tower and at Parliament House. The office at
Parliament House was only used during Parliamentary sitting times. 574
Meetings with Mr Macdonald and the DPI were scheduled by his secretary and
convened at one or the other of his offices.
659 Mr Gibson had the responsibility of ensuring that the Minister’s express
directions, requests or requirements of the DPI were satisfied.
660 Mr Gibson gave the following evidence:
Q. And was there a practice that you followed in terms of providing documents
to Minister Macdonald in electronic or hard copy form?
A. Yes, there was.
Q. And what was that practice?
A. If a briefing note or an information brief had come up from the department,
the general practice was to categorise it based on its level of importance or
571
MFI 7.
572
Mr Gibson was elevated to Chief of Staff in January 2009 – T 2457.
573
T 2455.
574
T 2310.
5KIPGFD[#WUV.++
urgency, if you like, and then you would provide that directly to the Minister for
his review and feedback.
Q. In that respect, the provision to the Minister, was there a practice in terms
of whether that would be electronic or hard copy?
A. It was generally hard copy. The Minister used to have a large bag of files,
again categorised to the level of importance, that he would review, write on
and then return to the staff for appropriate action.
Q. Can I ask you about the way documents were handled when they came into
the Minister's office. In terms of the role that you had and the documents that
you dealt with, did you treat any document or category of document as being
confidential or sensitive?
A. Yes, we did, and if I could just take a moment to explain that. The
ministerial office and both the department had an electronic document
monitoring system, if you like, called the TRIM system. I forget what the
acronym stands for. But effectively it was an electronic record to record the
comings and goings of all of those documents. And in relation to your question
on sort of confidentiality, I myself received specific training in this when I was
first appointed as a ministerial officer by the Department of Premier and
Cabinet in the early part of that decade, I think 2003, 2004, and it was general
practice that certainly Cabinet documents and any documents that contained
commercially sensitive information or information not for the public were to be
treated as such.575
661 Mr Craig Munnings was identified both in the evidence and in the Crown’s aide
memoire as the Departmental Liaison Officer (Minerals) within the Minister’s
office. Mr Gibson described Mr Munnings as “one of the main conduits
between the Minister’s office and the Department” and explained that he would
liaise with Mr Hawkes, his “counterpart” in the Department, in order to provide
various materials including “briefing notes and requests” to the Minister. 576 Mr
Badenoch gave evidence that Mr Munnings was not technically a member of
Ministerial staff.577 Mr Badenoch gave evidence that he terminated Mr
Munnings’ employment in September or October 2008 because:
He was not efficient or effective in performance of his duties … He behaved in

a manner that was not well-suited to being a representative of the Minister’s
office … He had attended functions with people who were inappropriate to
take to the types of functions that he attended … And generally he caused a
level of unease within the office staff.578
662 Mr Badenoch went on to give the following evidence:
I think that Mr Munnings’ problem was that he misunderstood what his role
was. He was not there to be a member of a political party. He was not there to
be a Minister himself. He was there to facilitate the orderly running of the
575
T 2458.
576
T 2456.
577
T 2449.
578
T 2449.
5KIPGFD[#WUV.++
Minister’s office and the delivery of government business through the

department. So, yes, he overreached would be my view.579
663 Mr Gibson gave the following evidence about the termination of Mr Munnings’
employment:
… we had some performance issues with Mr Munnings and it was a case

where we had lost confidence in him because some of the things that he was
telling us were not matching up with some of the things that he was doing and
we felt that it would be better that he should move out of the ministerial
office.580
664 Neither Mr Munnings, nor any Ministerial staff member other than Mr Gibson,
gave evidence in the trial.581
The role of the Coal and Petroleum Group within the Minerals Division of the
Department of Primary Industries
665 In 2004, the Department of Mineral Resources was amalgamated with the
Departments of Agriculture, Forestry and Fisheries to form the Department of
Primary Industries. At that time most of the Mineral Resources staff, including
those involved in coal, were relocated to the Maitland office of the DPI. As
Director of the Coal and Petroleum Development Group, Mr Mullard reported to
Mr Coutts, the Deputy Director-General of the DPI with responsibility for the
Mineral Resources Division.582 Mr Coutts was based in the Sydney office of the
DPI.583
666 Mr Mullard had responsibility for the day to day operation of the Coal and
Petroleum Development Group at the Maitland office. Minerals staff also
reported to him.
579
T 2449.
580
T 2516.
581
Mr Martin sought a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 direction in relation to Mr Munnings -
T 3802. Mr Neil also sought that direction - MFI 192 p 93. The same direction was sought in relation to Paul
Obeid, Gerard Obeid, Arlo Selby, Mr Fang, Mr Hewson, witnesses who were speaking to Gardner Brook in July
2008, including BBY and Tasmania Mines, witnesses from any of the other companies invited to express
interest in the eleven areas, including the “Jain Group” and “Breaksphere”, any of the potential investors who
Gardner Brook spoke to prior to September 2008, Hemantha de Silva, Steven Dunn and Brian Gardoll, Selina
Rainger, Patricia Madden, Kevin Ruming and other DPI witnesses, Annmarie Robinson, Mr Lewis, Ross and
Rocco Triulcio, Mr Kaidbay, Mr Sassine, John and James McGuigan, Richard Poole, Travers Duncan and other
Cascade Coal P/L witnesses, and witnesses associated with the White Group (MFI 192 pp 95 -96). 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 v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1.
582
T 577.
583
T 318.
5KIPGFD[#WUV.++
667 Mr Mullard was closely involved in the preparation and launch of successive
EOI processes for the grant of coal ELs. Insofar as this trial is concerned, he
was closely involved in the preparation and launch of the EOI Information
Package for the grant of ELs over eleven coal release areas in the Gunnedah
Coalfield, the Hunter Coalfield and the Western Coalfield in September 2008,
including the Mount Penny Coal Release Area which was identified as “Area
7”.584
Communication between the DPI and the coal mining industry

668 Mr Coutts gave evidence that it was part of the DPI’s role to provide
information about coal resources in New South Wales to the public and
stakeholders. The DIGS website, containing a range of resources on geological
and mining information, was one way in which that role was undertaken. 585
669 Mr Mullard gave evidence that the DPI promoted the development of the
State’s coal resources by making certain information publicly available about
those resources. Information collected by the DPI comprised both company
and departmental data. That information was available online databases known
as MinView, DIGS and TAS Map, together with the DPI’s microfilm collection of
borehole data, physical geological reports and other library materials. 586
670 Mr Coutts and Mr Mullard also confirmed that the DPI engaged directly with the
mining industry at conferences, forums, and in face to face meetings with
mining companies seeking information about coal resources in New South
Wales and areas that may be available for release. Mr Mullard gave evidence
that in those settings the DPI would disclose general information about areas to
be released, such as the Western Coalfield, or areas not under title which may
become available in the future,587 and that the DPI generally encouraged the
communication of public information held by the Department to mining
companies.588
584
585
T 445.
586
T 594-595.
587
T 602.
588
T 595-600, 1093.
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671 Mr Mullard gave evidence that mining companies would not normally ask the
DPI to identify or nominate areas that might be available for coal exploration
but, rather, they would identify an area of interest and enquire of the DPI as to
its availability. The DPI might respond by informing the mining company the
area was or was not under consideration as a coal release area. 589 Mr Mullard
also gave evidence that there was nothing untoward about the DPI informing
members of the mining industry that an EOI process was pending or even its
likely launch date but that “problems would arise” were the DPI to inform
industry players of the precise areas due for release.590
672 Ms Moloney gave evidence in similar terms. She indicated that the Industry
Coordination Team, later known as the Development Coordination Team,
within the DPI, publicly promoted mineral resources in New South Wales that
were, or might be, available for exploration in various ways, including by
holding meetings with mining companies.591
673 By way of example, Mr De Ross, the General Manager of Tianda Resources

P/L, gave evidence that his dealings with the DPI, on behalf of Tianda
Resources P/L, included “meetings with various DPI officers”592 and
researching the publicly available information on the DPI’s website. He
specifically recalled meeting with Mr Mullard. He gave evidence the DPI was
“positive about encouraging investment in mining in New South Wales”.593
What is coal?
674 The nature of the coal mining industry in New South Wales in 2008 was the
subject of extensive evidence in the trial, primarily through Mr Mullard.
675 In the discharge of his role and responsibilities as Director of the Coal and
Petroleum Development Group in the DPI from 2004-2008, Mr Mullard drew
heavily on his expertise as a geologist. He had previously held positions in the
Coal Compensation Board and the Department of Mineral Resources, includi ng
as Chief Coal Geologist of that Department. In that role, he provided advice to
589
T 1097.
590
T 1097.
591
T 2282.
592
T 1351.
593
T 1363.
5KIPGFD[#WUV.++
the government from time to time about the availability of coal resources
throughout New South Wales. He also provided information to mining
companies who might wish to apply for a coal EL.594 In November 2008, Mr
Mullard was appointed Executive Director for Minerals, which by that time
included the role of the Deputy Director-General of the DPI with responsibility
for the Mineral Resources Division, a position previously held by Mr Coutts. In
that role Mr Mullard had responsibility for all mineral operations in New South
Wales including, in addition to coal and petroleum development, mineral titles,
geological surveys, and development coordination which included mine safety.
676 Mr Mullard resigned from the DPI in September 2014. Since that time he has
consulted generally in the related fields of coal, government relations,
petroleum and land development.
677 Over the course of his career, Mr Mullard acquired extensive knowledge and
experience in the area of mineral resources generally and coal in particular. His
expertise included the following:
(a) the location, nature, size and extent of coal deposits in New
South Wales
(b) the market for coal in New South Wales for both the domestic
market and for export
(c) the identity of companies engaged in both the exploration for and
the mining of coal in New South Wales.
Coal mining methods and coal seams
678 Mr Mullard described a coal seam in the following way:
A coal seam is effectively a band of coal; the Americans call it coal bed.
“Seam” is actually an English/Welsh term and effectively refers to the unit of
coal that occurs beneath the ground (indicated). So if you can imagine the
layers of rock (indicated), at the top level you might have sandstones and
shales and so on, and then in the Sydney basin you reach coal seams, which
is actually areas where you have plant material accumulate and form under
heat and pressure to form these coal seams or coal beds which might range
from less than a metre up to tens of metres in thickness that occur in a uniform
layer.595
594
T 575-576.
595
T 592.
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679 A collection of coal seams, which occur at various depths and which may
overlap, is referred to as a “coal measure”.596 Mr Mullard explained how coal
seams intersect:
Q. And is it the case that those seams may start at different - if you are looking
topographically - be located at different locations but that there may be
intersection between those seams as you have just described which creates
the situation of one seam occurring potentially above another?
A. That’s right. Well, the way it works, generally the deeper you are, the older
the rocks are and the older the coal seams are. So as you go up, you tend to
get younger and younger rocks or younger and younger coal seams. But some
coal seams might occur in this location and then they will thin and cease to
exist here but then another coal seam might thicken and come in at a different
level.597
680 Mr Mullard gave evidence that there are two main methods for mining coal:
open cut mining and underground mining. The choice between those methods,
which deploy different mining techniques, depends on the location and depth of
the coal seam being mined and the type and quality of the coal it contains.
681 Open cut mining is generally undertaken where coal seams are relatively close
to the surface. This permits access to the coal by the creation of a large pit
where all the overlying rocks are removed exposing the coal seam for
extraction.
682 Underground mining is undertaken where the coal seams are deeper and
access to the coal is provided via a shaft from which tunnels extend. Mr
Mullard explained that open cut mining is generally regarded as more efficient
because the technique of driving a shaft down to the seam makes it essential
to leave coal behind to support the roof of the mine.598
Coal resources in New South Wales

683 Mr Mullard identified the Sydney and Gunnedah basins as the “main coal-
bearing area in New South Wales”.599 The Sydney and Gunnedah Basins are
divided into a number of area-specific coalfields:
596
T 592.
597
T 593.
598
T 593.
599
T 591.
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(1) The Newcastle Coalfield produces thermal and soft coking coal. 600
Coking coal is used in the production of steel while thermal coal is used
for electricity generation.
(2) The Southern Coalfield produces largely hard coking coal with the
steelworks established at Wollongong for that reason.601
684 Relevantly to the trial, the eleven small to medium coal release areas released
as part of the EOI process in September 2008 were located in the Hunter,
Gunnedah and Western Coalfields in the Sydney and Gunnedah basins:
(1) The Hunter Coalfield is where most of the coal production in New South
Wales occurs, comprising both open cut and underground mining. It is
the main open cut mining area in the State. The coal it produces
supplies coal-powered electricity stations at Mt Piper and Liddell and is
also exported through the port of Newcastle.
(2) The Gunnedah Coalfield (also referred to as the Gunnedah Basin) in the
northern part of the State produces mainly thermal coal suitable for both
domestic use and export.602
(3) The Mount Penny Coal Release Area was located in the Western
Coalfield which Mr Mullard described as encompassing an area “from
Lithgow right up to Ulan”603 with coal outcrops in the west and deeper
coal seams in the area which extends to the east. It produces “medium-
to-high ash, high-energy thermal coal” which occurs in the Katoomba,
Lithgow and Ulan Seams,604 some of which is utilised domestically by
the power stations accessible from the Western Coalfield, including
power stations at Vales Point and Munmorah which were specifically
accessible from the Bylong Valley.605 The balance is exported. In 2008,
the coal reserves in the Western Coalfield were estimated to amount to
1793 million tonnes, an increase over previous years.606
(4) More specifically, the northern sector of the Western Coalfield (in which
Mount Penny is located) centres on the Ulan/Bylong area and the
Coggan and Ulan coal seams. As at 2008, it contained the majority of
the remaining unallocated and underdeveloped coal resources in the
Western Coalfield. The 2008 Coal Industry Profile publication reported
that those resources were being explored by the DPI,607 having been
identified as suitable for a mixture of underground and open cut
extraction methods.608
600
Exhibit W p 50.
601
Exhibit W p 51.
602
Exhibit W p 50.
603
T 591.
604
Exhibit W p 51.
605
T 407.
606
Exhibit W p 3.
607
Exhibit W p 52.
608
Exhibit W p 78.
5KIPGFD[#WUV.++
(5) That publication also included the following map of the Western
Coalfield:609
Coal exploration activities
685 Mr Mullard gave evidence the location of coal reserves within a generalised
coalfield is identified through “exploration activities”.610 These include
topographical mapping referrable to where the “coal seams outcrop” and
609
Exhibit W p 130.
610
T 592.
5KIPGFD[#WUV.++
drilling programs which involve a drilling rig boring through overlying rocks with
a view to intersecting a coal seam from which samples are taken. 611 The
sampling of coal via a drilling program allows for an assessment to be made of
the quality of the coal resource and its suitability for either coking, which
produces steel, or thermal coal for electricity, or “PCI coal which is pulverised
injection coal that can actually assist in steel-making”.612 The sampling of coal
via a drilling program can also assist in determining how a coal seam is running
directionally which in turn permits modelling to be undertaken with a view to the
coal being mined. Ascertaining variations in the thickness and quality of an
underground coal seam is an important source of exploration data.
686 Exploration activities are undertaken by the holder of an EL for coal. The DPI
retained some coal resources under ELs held by the Department to undertake
their own drilling and analysis before releasing those areas to tender. EL 6676
was one. It is significant for reasons which will become apparent when I deal
with the first, second and fifth acts of misconduct.
The granting of an EL under the Mining Act

687 The DPI was responsible for implementing the regulatory regime for the
granting of coal ELs and coal mining leases (both powers being vested in the
Minister for Mineral Resources under the Mining Act613) and for revising,
updating and publishing the Coal Allocation Guidelines used by the DPI as part
of that process.614
688 The holder of an EL is granted the right, in accordance with the conditions of
the EL, to prospect on specified land for a specified mineral or minerals. 615 An
EL does not entitle the licensee to mine for minerals. That involves a separate
application for a mining lease that is ordinarily applied for by a person or
company who holds either an EL or assessment lease, or with the consent of
the Minister for Mineral Resources.616
611
T 592.
612
T 592.
613
Mining Act, Part 5.
614
Exhibit A pp 692.001-692.005.
615
Mining Act, s 29(1).
616
Mining Act, s 51(4).
5KIPGFD[#WUV.++
689 An application for a mining lease would only be lodged once development
consent was granted by the Minister for Planning following the preparation and
submission of an Environment Impact Study or Assessment, typically taking
into consideration groundwater issues and community concerns.
690 The Crown led extensive evidence, principally from Mr Mullard through whom
the Crown tendered various documents about the process involved in the
granting of an EL for coal in New South Wales in 2008. That evidence included
the regime for the grant of ELs under the Mining Act and the policy that
developed between the DPI and the Minister’s office used to implement that
statutory regime, including the Coal Allocation Guidelines.617
691 It is clear to me from that complex of evidence that there is a relevant

connection between the ultimate granting of the Mount Penny EL and the steps
taken by the Department, with the knowledge and approval of the Minister for
Mineral Resources, which preceded the preparation and launch of the EOI
process.618
The statutory scheme in the Mining Act for the grant of an EL

692 As at 2008, the power to grant an EL in New South Wales was vested in Mr
Macdonald as the Minister for Mineral Resources under s 22 of the Mining Act.
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.
617
As to which see par 703 and following.
618
I made that observation earlier when dealing with Mr Neil’s submissions as concerns what is comprehended
by acts “in connection with the granting of an EL at Mount Penny”.
5KIPGFD[#WUV.++
(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.
695 Each of those steps is set out as follows.
The designation of New South Wales as a Mineral Allocation Area for coal
696 In December 2007, the Governor of New South Wales ordered that all coal
deposits in the State of New South Wales were to be designated as a Mineral
Allocation Area (MAA) under the Mining Act, to allow for the “controlled and
rational release of potential coal development areas and the setting of special
conditions for each allocation”.619
697 Previously, the MAA for coal in the State of New South Wales only covered the
Sydney and Gunnedah Basins.
698 Mr Mullard explained that when a mining company applied for an EL for a coal
resource which was not designated as part of an MAA for coal, providing that
the company fulfilled the relevant criteria set out in the Mining Act, there were
“very limited grounds” for refusing the grant of that EL.620 This led to coal
mining companies effectively stockpiling unallocated coal resources outside the
619
620
T 603.
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Sydney and Gunnedah Basins (already an MAA) by acquiring exploration

rights over those areas, a process that became known as “land banking”. 621
699 Designating the entire State as an MAA for coal had the effect that coal
companies could no longer make an application for a coal EL in New South
Wales “except with the consent of the Minister” pursuant to the regime under
s 13(4) of the Mining Act.622 It allowed the Minister and the DPI to exert greater
control over the location and volume of coal reserves being designated for
exploration, prevented the practice of land banking, and as Mr Coutts
explained, reflected the increased domestic demand for coal in New South
Wales following the withdrawal of a large amount of coal produced in China
from the international market from 2004.623
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
621
T 326.
622
T 603-604.
623
T 331.
5KIPGFD[#WUV.++
produced by the DPI and amended and adjusted over time for various
purposes with the approval of the Minister.624
704 The Coal Allocation Guidelines dated January 2008625 were in place at all
relevant times during the currency of the conspiracy, replacing replaced the
Coal Allocation Guidelines issued by the DPI in March 2006. 626
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”.627 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”.628
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”.629
624
Exhibit A p 53.
625
Exhibit A pp 692.001 – 692.005.
626
Exhibit A pp 53-59.
627
628
5KIPGFD[#WUV.++
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.630
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. 631
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
629
630
631
Exhibit A p 58.
5KIPGFD[#WUV.++
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.632
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,633 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.634
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”.635
632
T 630.
633
Including EL 6676 in the Bylong Valley, the s ubject of evidence in the trial.
634
T 632.
635
T 600.
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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.636
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.637
636
The Coal Register as at 10 August 2012 was tendered over objection as Exhibit AN subject to limitation
under s 136 of the Evidence Act and subject to the ruling that “[t]he entries in [the Coal Register] that have
been the subject of evidence and only those entries are to be referred to ultimately by the parties” – see T
2305.
637
T 600. See, for example, the release of the remnant areas near Lithgow in which Monaro Mining NL
expressed interest which were subsequently released as part of the EOI process in respect of eleven small to
medium coal release areas.
5KIPGFD[#WUV.++
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.638 The Coal Register was not publicly available.639 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”.640
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”.641
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.642
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
638
T 600 – see later at par 1147 where the significance of the confidential status of the EOI process is discussed
in the context of the sixth act of misconduct.
639
T 621.
640
T 621. See later at par 1374 where the significance of the confidential status of the Coal Register is
discussed in the context of proof of the seventh act of misconduct.
641
642
T 604.
5KIPGFD[#WUV.++
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 processes643 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.644
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,
643
Exhibit A p 2000; Exhibit G pp 5, 7.
644
See for example Exhibit G pp 5, 7; Exhibit A p 4347.
5KIPGFD[#WUV.++
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.
The grant of the EL by the Minister

730 Upon completion of the administrative tasks set out in the formal EL
application, it was not unusual for the Minister to delegate the act of signing the
EL to a Departmental officer, as this step was seen as an administrative
exercise.
731 Section 22 of the Mining Act allows the Minister (or their delegate) to either
grant or refuse an application for an EL:
22 Power of Minister in relation to applications

(1) After considering an application for an exploration licence, the Minister:
(a) may grant to the applicant an exploration licence over all or part of
the land over which a licence was sought,
(b) may refuse the application.
(2) Without limiting the generality of subsection (1), an application may be
refused on the ground that the applicant has been convicted of an offence
against this Act or the regulations or any other offence relating to mining or
minerals.
(3) The Minister may grant a single exploration licence in respect of 2 or more
applications or 2 or more exploration licences in respect of a single application.
732 Section 23 of the Mining Act allows the Minister to either grant or refuse a
tender for an EL:
23 Power of Minister in relation to tenders

(1) After considering a tender in respect of land in respect of which one tender
only is lodged, the Minister:
(a) may grant an exploration licence to the tenderer, or
(b) may refuse the tender.
(2) After considering all tenders in respect of land in respect of which more
than one tender is lodged, the Minister:
(a) may grant an exploration licence to any one of the tenderers and
refuse the other tenders, or
(b) may refuse all of the tenders.
5KIPGFD[#WUV.++
(3) Without limiting the generality of subsections (1) and (2), a tender may be
refused on the ground that the tenderer has been convicted of an offence
against this Act or the regulations or any other offence relating to mining or
minerals.
(4) For the purposes of this section, only one tender is lodged in respect of
land if no other tender is lodged in respect of the land or any part of the land.
733 Section 26 of the Mining Act allows the Minister to impose conditions on an EL:
26 Conditions of exploration licence

(1) An exploration licence is subject to such conditions as the Minister may,
when granting the licence, impose.
(2) Without limiting the generality of subsection (1), conditions of the following
kind may be imposed on an exploration licence:
(a) conditions requiring the holder of the licence to pay royalty to the
Minister on any minerals recovered under the licence,
(b) conditions requiring the holder of the licence to give and maintain
security (in such amount and form, and on or before such date, as the
Minister may determine) for the fulfilment of the obligations arising
under this Act in respect of the licence.
(3) Part 14 applies to royalty payable under a condition referred to in
subsection (2) (a) in the same way as it applies to royalty payable on a mineral
recovered under a mining lease.
(4) A condition requiring security to be given and maintained by the holder of
an exploration licence (the new exploration licence) may be expressed so as
to require the security given and maintained in relation to some other
exploration licence or licences, whether under this section or under section
29A, to be extended to the new exploration licence.
(5) If the Minister proposes to grant an exploration licence to a person on the
condition that the person gives and maintains security, the Minister may cause
a written notice to be served on the person requiring the person to lodge the
security with the Minister on or before the date specified in the notice.
The policy imperatives for the release of new small to medium coal release
areas in the Western Coalfield in 2008
734 In closing submissions, the Crown accepted that in discharge of his Ministerial
duties and responsibilities, (which I also take to include, in the context of the
issues at trial, his statutory responsibilities under the Mining Act and his
engagement with the DPI) Mr Macdonald was an energetic Minister with great
enthusiasm for the New South Wales coal mining industry.
735 By “mid-2008”,645 following the designation of the entirety of New South Wales
as an MAA for coal and the publication of the DPI’s new Coal Allocation
645
T 2461.
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Guidelines in January 2008, it was well known646 that Mr Macdonald had

devised and was seeking to undertake a policy of releasing small to medium
coal release areas in competitive tender processes. The Coal Allocation
Guidelines defined a small to medium coal release area as containing less than
100Mt of coal.
736 Responsive to Mr Macdonald’s enthusiasm to see that policy implemented by

the Department “as soon as possible”,647 the DPI undertook the process of
identifying suitable small to medium coal release areas for inclusion in a limited
EOI process for the granting of ELs. It was accepted by the parties that Mr
Macdonald’s focus on small to medium coal release areas policy was reflective
of his concern, also well known by that time, to prevent the practice of land
banking whereby large coal mining companies effectively stockpiled coal
resources by acquiring ELs without taking steps to exploit the resources they
encompassed. Mr Macdonald expressed his concern to a number of people in
his capacity as the responsible Minister that smaller companies should be
given an opportunity to enter the coal mining industry. It was also accepted by
the parties at trial that Mr Macdonald was minded to release further high quality
thermal coal resources at a time when New South Wales was a major supplier
of that product and when international coal prices were at a premium.
737 Mr Macdonald’s policy was also implemented by the DPI in the context of his
enthusiasm to release further coal exploration areas of all sizes across the
State following the success of previous EOI processes which had culminated in
the grant of the Caroona EL in January 2006 and the grant of the Watermark
EL following an EOI process in October 2007. Both ELs were granted over very
large coal resources near Gunnedah. The grant of the Caroona EL on 30
January 2006 generated a substantial financial return to the State of almost $1
million by way of payment of an AFC by Coal Mines Australia Ltd (a wholly
owned subsidiary of BHP Billiton) as the successful tenderer. A financial return
of $389,300,000, also by way of payment of an AFC, was ultimately paid by
646
T 233 (Iemma), T 322 (Coutts), T 677 (Mullard), T 2461 (Gibson).
647
T 2461.
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China Shenhua Energy Company Ltd, the company awarded the Watermark
EL in August 2008 following a competitive EOI process.648
738 Mr Mullard also gave evidence that the Minister was very keen to release
further areas for exploration after the granting of the Caroona and Watermark
ELs and that around the time that the Watermark EL was granted the Minister
enquired again as to “the next areas” for release.649
739 Mr Coutts gave similar evidence that that Mr Macdonald had spoken with him
on a number of occasions about his desire to explore opportunities to release
further large coal release areas to tender.650
The significance of Additional Financial Contributions
740 As noted earlier, under the Coal Allocation Guidelines, a company awarded an
EL in respect of a coal resource was required to pay a minimum financial
contribution to the DPI. That amount was calculated referable to the size, type,
location and quality of the coal resource. In addition to the minimum financial
contribution, a company could elect to nominate an AFC in its application for an
EL.
741 It is clear that while Mr Macdonald’s enthusiasm for releasing more coal
release areas for exploration in general was driven in part by the payment of
AFCs by companies awarded ELs and the revenue it generated for the DPI,
the extent to which that financial incentive motivated Mr Macdonald’s small to
medium coal release areas policy was contentious in the trial.
742 The accused sought to emphasise that payment of AFCs enabled the DPI to
meet the 2.5% efficiency dividend imposed on it due to the parlous financial
position of the State budget in 2007/2008, thereby avoiding staff redundancies
or the contraction of services or other programs the Department provided. 651
648
Exhibit G. I also noted that in February 2008, Mr Macdonald granted ELs 7073 and 7074 to Moolarben Coal
Mines Pty Ltd to expand the operation of the Moolarben mines in the Upper Hunter Valley and, in March
2008, he granted EL 7091 over part of the Ulan coal seam to the Wilpinjong Company (a subsidiary of Peabody
Coal) to expand the Wilpinjong Mines in the Western Coalfield (Exhibit W).
649
T 677.
650
T 346-347.
651
T 222-224, 677, 941, 2344-2345, 2357-2358, 2547.
5KIPGFD[#WUV.++
743 The Crown accepted that Mr Macdonald, as the Minister responsible for the
DPI’s budget, was motivated to meet the efficiency dividend in that way.
However, the Crown sought to emphasise that ELs granted in respect of
smaller coal resources would generate far smaller AFCs than was generated
from the granting of ELs in respect of large coal release areas like Watermark
and Caroona. It followed, in the Crown’s submission, that while the pursuit of a
significant AFC as a source of revenue to assist the DPI to achieve the
efficiency dividend might have motivated Mr Macdonald to make his directed
enquiries of the DPI about coal reserves in the Mount Penny area in May 2008
(the subject of the first and second acts of misconduct), at least to the extent
that one aspect of that enquiry was a request that the DPI consider opening up
its holdings in the Bylong Valley under EL 6676 (which, referable to the Coal
Allocation Guidelines would constitute a large coal release area), that
motivation (assuming it was genuine) apparently fell away when the eastern
portion of EL 6676 was excised, rendering the balance not only smaller but
with reduced access to the mining amenities of the Coggan Creek railway. 652
The DPI’s knowledge of coal in the Bylong Valley (in the area of Mount Penny)
and the DPI’s holdings under EL 6676
744 The Mount Penny Coal Release Area was located in the Bylong Valley, falling
within the northern part of Western Coalfield.
745 That area was also referred to in the evidence as the Mount Penny-North
Bylong Area or the Wollar-Bylong Area.653
746 Coal reserves in the northern section of the Western Coalfield, including,
specifically in the North Bylong-Mount Penny area (although not referred to in
that way), had been the subject of Departmental assessment for many
decades prior to the events the subject of the trial.
747 In 1991, the geologist EK Yoo produced a report titled “Geology and Coal
Resources of the Northern Sector of the Western Coalfield” (the Yoo
Report).654
652
MFI 181 pars 192, 269; Exhibit A p 692.004.
653
T 1471-1472.
654
Exhibit J.
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748 The Yoo Report located the Bylong area within the norther sector of the
Western Coalfield655 as an area “bounded to the north by the Goulburn River
National Park, to the east and south by the Wollemi National Park and to the
west by the 1.5m seam isopach line”.656 The Yoo Report also identified the
“Coggan seam” as the only coal seam with a “working section in the Bylong
area” with the 1.5m isopach running “in a north-south direction through Mount
Penny and … gradually thickens to the east, reaching over 5m in thickness at
the eastern boundary of Authorisation Nos 287 and 342”.657 The Yoo Report
noted that in 1973-1974, four bores were drilled in the Bylong area as part of
the Goulburn River Drilling Programme.658 In 1982-1984, Austen & Butta Pty
Ltd drilled 50 bore holes in Authorisations 287 and 342 in the Bylong Area. 659
749 The Yoo Report estimated the total underground coal resources in the Bylong
area as 520.5Mt.660 The study team considered that only the Coggan seam
within the Bylong Valley had the potential for an economic return, largely
because a large proportion of the area was inadequately tested. That is,
additional data would need to be available in order to make an assessment of
the potential for coal exploration in that area. The Yoo Report was publicly
available.661
750 In 2005, the DPI commissioned a report titled “Strategic Study of the Coal
Resource Potential from Hunter Valley West to Cobbora” by JG Dwyer et al
(the Dwyer Report).662 The Dwyer Report identified the “Wollar-Bylong area” as
falling in what was described as the central part of the study area, extending for
17km from Bylong in the east to Wilpinjong in the west and 30km to the south
with “potential for small to medium size open cut mines that will also provide
access to associated, underground resources”.663
655
Exhibit J pp 5-6.
656
Exhibit J p 22.
657
Exhibit J p 24.
658
Exhibit J p 7.
659
Exhibit J pp 7, 38-40; Exhibit 15.
660
Exhibit J p 49.
661
T 633.
662
Exhibit K - JG Dwyer et al, Strategic Study of the Coal Resource Potential from Hunter Valley West to
Cobbora (Report No GS 2005/334, July 2005).
663
Exhibit K p 6.
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751 In the Dwyer Report, the Ulan seam in the Bylong Valley was the subject of an
assessment in the following terms: “The main economic potential in the Wollar-
Bylong area is contained within the upper, lower, and basal sections of the
Ulan seam.”664 Ultimately, the Dwyer Report recommended that “exploration
programs be developed”, including relevantly for the Wollar-Bylong area, “in
order to better assess the coal resources of the region” in order that timely and
balanced decisions about the prospective coal resources might be made. 665
The Dwyer Report was publicly available.666
752 The Dwyer Report was ultimately the subject of a Departmental Minute dated
23 March 2006. The Minute recommended that the Titles Branch within the
Coal and Petroleum Development Group of the DPI instigate a process by
which the Minister would apply for an EL over unallocated coal resources in the
Wollar-Bylong area. The purpose in seeking Ministerial approval for the grant
of the EL to the DPI was to “conduct regional exploration which will involve low
impact activities including wide spaced drilling”.667 The Titles Branch produced
the boundaries of EL 6676 668 which was ultimately granted to the DPI on 21
November 2006.669 Whilst, under EL 6676, the DPI could undertake exploration
activities within the area comprehended by the licence, it was for the Minister to
determine whether it, or any area comprehended by it, would be released to
public tender. Mr Mullard gave evidence that as at May 2008 there had been
little by way of a drilling program in EL 6676, the DPI instead focussing on
exploration in the Cobbora Area.670
753 Ms Wiles gave evidence that EL 6676 was granted following publication of the
Dwyer Report.671 Mr Bowman gave evidence that EL 6676 included the area
he knew as the “Wollar-Bylong area”, an area the Coal Compensation Board
also knew by that name.672
664
T 646; Exhibit K p 25
665
Exhibit K p 45; T 648.
666
T 643.
667
Exhibit L.
668
T 651.
669
Exhibit A pp 65-68.
670
T 656.
671
T 2195.
672
T 1445.
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Mr Macdonald’s enquiries of the DPI in 2008 about coal reserves in the Bylong
Valley in the area of Mount Penny
754 What emerged as a critical issue in dispute in closing arguments was whether
the Crown has established that Mr Macdonald’s enquiries of the Department
about coal reserves in the “Mount Penny/North Bylong area” via Mr Gibson on
9 May 2008, with a follow-up enquiry by Mr Gibson on 14 May 2008, enquiries
which generated the preparation of Wiles Map 1 673 and later Wiles Map 2674
(facts which were not in dispute), were overt acts committed by Mr Macdonald
in furtherance of the conspiracy.
755 The Crown accepted in its closing submissions that although Mr Macdonald’s
specific enquiries of the Department at this time occurred in the context of his
enthusiasm to release further coal exploration areas,675 including the release of
small to medium areas in the Western Coalfield,676 what the Crown described
as Mr Macdonald’s “left field” enquiry of the DPI about coal reserves in the
“North Bylong/Mount Penny area”677 supports the Crown case that he would
not have made those particular enquiries at that time “but for” the improper
purpose of advancing the interests of the Obeid family as the owners of
Cherrydale Park in the Bylong Valley situated near Mount Penny (a state of
affairs of which he was well aware at that time) in connection with the granting
of an EL at Mount Penny.
756 Were I to make that finding, the related question that arises is whether I am
also satisfied that on 6 June 2008 Mr Macdonald directed the Department that
a coal release area in the area of Mount Penny be “split” from the large coal
release area in the Bylong Valley (by that date graphically represented on
Wiles Map 2)678 to create a small area in order that it might be included in the
EOI tender process for the granting of an EL (the conduct comprehended by
the fifth alleged act of misconduct).
673
Exhibit A p 747.
674
Exhibit A p 833.
675
MFI 181 par 191.
676
T 2574.
677
MFI 181 par 177.
678
See par 909.
5KIPGFD[#WUV.++
757 As noted above, the Crown accepted that, at the time of the events the subject
of this trial, the evidence established sound public policy reasons for releasing
large and small to medium coal exploration areas in the Western Coalfield in
2008, including frustrating what had been demonstrated as the concerted
efforts of large mining companies to “land bank”. However, the Crown also
submitted, albeit expressly for the first time in closing submissions, 679 that after
considering all of the evidence informing the circumstances in which the Mount
Penny Coal Release Area came to be designated by the DPI in mid-June 2008,
I would be satisfied that Mr Macdonald “slipped” Mount Penny into an
otherwise uncontroversial EOI process for the release of a number of new
small to medium coal release areas. The Crown submitted that the EOI
process was “the perfect vehicle” to conceal from scrutiny that the real object
and purpose in directing that Mount Penny be included as a small coal release
area was to advance the interests of the Obeid family in furtherance of the
agreement he had reached with Edward Obeid and Moses Obeid that he would
wilfully misconduct himself as Minister in connection with the granting of an EL
at Mount Penny for the improper purpose alleged.
758 The Crown also submitted that after considering all the evidence I would be
satisfied that Mr Macdonald would not have initiated the enquiries he had Mr
Gibson make of the Department on 9 and 14 May 2008 (the first and second
acts of misconduct) and he would not have directed that the Mount Penny Coal
Release Area be designated for inclusion in an EOI process for the granting of
an EL on 6 June 2008 (the fifth act of misconduct) “but for” that improper
purpose.
The enquiries made by Mr Gibson on behalf of Mr Macdonald on 9 May 2008

and 14 May 2008 - particularised by the Crown as the first and second acts of
misconduct
759 The Crown particularised the first and second acts of misconduct 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
in this location.
679
MFI 181 par 268.
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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
in this location.
The evidence relied upon to prove the first act of misconduct
760 Although the first and second acts of misconduct allegedly occurred on
different days and are particularised in different ways, in the analysis which
follows it will become clear that the enquiries made of the DPI are related, in
the sense that the second act of misconduct is a follow-up enquiry after Mr
Macdonald received the information generated from the first act of misconduct.
761 Mr Gibson gave evidence that on 9 May 2008 Mr Macdonald asked him for
some information on the “Mount Penny, North Bylong Area … as soon as
possible”.680 Mr Macdonald did not tell Mr Gibson why he wanted the
information and Mr Macdonald did not tell him anything about Mount Penny or
North Bylong. Mr Gibson had not heard of Mount Penny before this
conversation and had not discussed Mount Penny with Mr Macdonald before
that day.681
762 Mr Gibson gave evidence that he telephoned Graham Hawkes, Principal

Mineral Liaison Officer within the Ministerial and Executive Support Division of
the DPI, directly.682
763 Mr Hawkes gave evidence that Mr Gibson requested “urgent information

relating to … any coal reserves within the Mount Penny, region, area
locality”.683 The reference Mr Gibson made to “Mount Penny” was not an area
with which Mr Hawkes was familiar. Mr Hawkes gave evidence that Mr Gibson
did not tell him why he wanted the information and he did not ask. Mr Hawkes
also gave evidence that Mr Gibson indicated to him that a response was
needed “within an hour or just over an hour” - a degree of urgency he had not
previously experienced in his dealings with the Minister’s office. 684
680
T 2463.
681
T 2500.
682
T 2463.
683
T 1134.
684
T 1135.
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764 Mr Hawkes conveyed Mr Gibson’s request by making a phone call to the Coal
and Petroleum Geology area within the Maitland office of the Mineral
Resources Division.685 He could not recall who he spoke to but that person did
ask him, “where is Mount Penny?”686 and, since he did not know, a search of
topographical maps of New South Wales he made to try and locate the Mount
Penny was initiated.687 He did not, however, provide any further information to
the Coal and Petroleum Geology Division.
765 Mr Larkings gave evidence that either Ms Madden or Ms Hibbs from Mr

Mullard’s office approached him and said that there was an enquiry from the
Minister about “coal resources in the … Mount Penny area” 688 and that he was
given to understand that Mr Hawkes had conveyed the request for that
information.
766 Mr Larkings recalled asking Ms Wiles, Manager of the Coal Advice section,
about the location of Mount Penny. Mr Larkings and Ms Wiles established from
secondary materials that Mount Penny was “in the Bylong Valley”. 689
The production of Wiles Map 1 and the Ministerial Briefing

767 Ms Wiles confirmed that she was the author of the map entitled “Mt Penny
Area” (Wiles Map 1)690 having been asked by Mr Larkings to identify the Mount
Penny area because “the Minister was interested in some information about
it”.691 She gave the following evidence:
Q. Could you tell the Court the circumstances in which you came to create that
document [Wiles Map 1]?
A. Mr Robert Larkings came around in early May and asked me to identify
resources in the Mount Penny area. I asked him where Mount Penny was and
he had to Google it to find out where the place was. We then identified the
area and from there I prepared a map indicating the ELs and PLs over the
area and authorisations and put on there the national park and put red dots to
identify various localities within the boundary of that map.
The dot for Mount Penny is sort of made larger, purely and simply because
that was the name I was given my Mr Robert Larkings.
685
T 1135.
686
T 1136.
687
T 1136.
688
T 1172.
689
T 1172.
690
Exhibit A p 747.
691
T 2171.
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Q. Did you use some form of computer program to create this document?
A. Yes, I did. There was a system within the department where you could call
up all the authorisation, allocations that were made, exploration licences,
which is shown there on the TAS map at the side there, the key, which shows
what all of the things are that could fall on the map; and the ones that are
shown here refer to national parks, authorisations, PEL and I think that's about
it, and an EL that’s on there.
So they’re actually within the department's system, or back in those days they
were things that were within the system of the department that you could call
up through TAS and make maps. So everything is sort of pretty scheduled in
there where you just put in what you want to show.
Q. So, ma’am, in general terms, does the program you have just described
mean that a location in New South Wales can be focused upon and then, to
the extent it is affected by authorisations or, as you say, PELs; that is a
petroleum licence, isn’t it?
A. Yes, that’s correct. You can do that for any part of the State. It also shows
exploration boreholes, coal boreholes, that fall within the area on this map as
well.692
768 Wiles Map 1 was tendered as part of Exhibit A:693
769 Ms Wiles also gave evidence that she selected the title of “Mount Penny Area”
for the map because Mr Larkings “referred” to that area when he made the
692
T 2168.
693
Exhibit A p 747.
5KIPGFD[#WUV.++
request of her.694 Ms Wiles gave evidence that she provided hard and soft
copies of Wiles Map 1 to Mr Larkings.
770 Ms Wiles explained that she enhanced the size of the dot designated for Mount
Penny on Wiles Map 1 so as to ensure that it could be readily identified by a
person reading the map. She also explained that the TAS map system utilised
by her allows a user to “adjust the size of the font … the size of dots so they’re
more easily visible” but that it does not allow a user to “adjust boundaries” or
“move the locality”.695
771 At 11:29am, Mr Larkings sent an email to Mr Hawkes copied to Mr Mullard to

which he attached Wiles Map 1. That email read as follows:696
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 EL6676, held by the Department of Primary
Industries and Authorisation 287, held by Anglo Coal. There is also a
Petroleum Exploration Licence, PEL 456, held by Macquarie Energy.
The Department holds a title so that it can carry out drilling and it is expected
that this program will also 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.
Several coal titles exist in the area, as shown in the attached map. Currently,
the closest mining lease is at Wilpinjong.
772 Mr Larkings gave evidence that the information in the body of the email was
prepared over a couple of hours with assistance from Ms Wiles.697 He gave
evidence that the reference to “drilling” was included in response to a
telephone call from Mr Hawkes. He also said that the inclusion of the
statement, “[t]his exploration may identify an area suitable for tender”, was not
because he was told that the Minister wanted to release the area for tender but
because he anticipated that the information might assist.
694
T 2172.
695
T 2172.
696
Exhibit A p 749.
697
T 1173.
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773 At 12:01pm, Mr Larkings’ email of 11:29am was forwarded by Mr Hawkes to Mr

Gibson.698 Mr Gibson gave evidence that he provided a copy of that email to
Mr Macdonald.699
774 By reply email to Mr Hawkes at 12:06pm, Mr Gibson acknowledged receipt of

Wiles Map 1 (a map which he described as “great”) but requested that the
information in the email be put in the form of a Ministerial Briefing. 700 Mr Gibson
indicated he had to “fax it to the boss [Mr Macdonald]” and that he had “bought
us another hour”.701
775 At 12:57pm, Mr Hawkes sent a further email to Mr Gibson copied to Mr Coutts

which attached the Ministerial Briefing 702 he had prepared responsive to Mr
Gibson’s request together with Wiles Map 1.703 The body of the email read:
Brief and diagram attached. Information approved by Brad Mullard, Director

Coal and Petroleum Resources. Alan [Coutts, Deputy Director-General of the
DPI] is not around to approve.704
776 The Ministerial Briefing reads as follows:
Issue:
Coal reserves and titles at Mount Penny.
Current Position:
Mount Penny is located approximately 3 km west north west of the town of
Bylong.
There are significant coal resources within the general region of Bylong.
Mount Penny is located within coal Exploration Licence (EL) 6676 held by the
Department of Primary Industries and shown by blue shading on the attached
diagram.
There are a number of coal titles in the region including Authorisation 287 held
by Anglo Coal located to the east of Mt Penny and shown by yellow shading
on the attached diagram.
There is also a petroleum exploration licence, PEL 456, held by Macquarie
Energy and shown by blue cross hatching covering the whole of this region.
DPI holds EL 6676 so that it can carry out exploration drilling to assess the
coal reserves within the area of the title. It is expected that the drilling program
698
Exhibit A p 754.
699
T 2463.
700
Exhibit A p 753.
701
Exhibit A p 753.
702
Exhibit A p 757.
703
Exhibit A p 759.
704
Exhibit A p 753.
5KIPGFD[#WUV.++
will include some drilling in the vicinity of Mt Penny to further delineate the
resource. The resource is expected to consist of mainly thermal coal. The
exploration may identify an area suitable for tender.
The closest mining lease/mine is Wilpinjong.
Recommendation:
The Minister notes this Brief.705
777 Mr Mullard gave evidence that while the approval for documents to be provided
to the Minister would “normally” be given by Mr Coutts, he gave the necessary
approval for the Ministerial Briefing to be sent to the Minister’s office in Mr
Coutts’ absence.706 Mr Coutts gave evidence that because he was not “in the
office at the time”, the contents of the email chain were brought to his attention
by Mr Hawkes some time after the emails were sent. He gave evidence that Mr
Hawkes “mentioned” that “he sent it [Mr Macdonald’s request] up to Brad
[Mullard] to get some further information” and that he asked Mr Hawkes “what
was Mount Penny or where was Mount Penny”.707
778 Mr Gibson gave evidence that he faxed the Ministerial Briefing that was
provided by Mr Hawkes to Mr Macdonald who was by that stage en route to his
home in Orange. He said that Mr Macdonald telephoned him to confirm receipt
of the documents. Mr Gibson explained this was not an unusual manner of
providing the Minister with a document and confirming its receipt where the
Minister was not in the office.708
779 I am satisfied that at 9 May 2008, Mr Macdonald had in his possession

information, including Wiles Map 1 which had been generated by the DPI at his
request and which indicated that Mount Penny, or an icon designating it, was
located within EL 6676. Mr Neil’s cross-examination of the mapping witnesses,
being Mr Schiavo,709 Ms Wiles and Mr Whiddon, about the lack of specificity in
the appointment of the Mount Penny trig point relative to the boundary lines of
EL 6676 and Authorisation 287 is not to the point.
705
Exhibit A p 757.
706
T 660.
707
T 336.
708
T 2464.
709
T 571-572.
5KIPGFD[#WUV.++
The evidence relied upon to prove the second act of misconduct

780 At 11:02am on 14 May 2008, Mr Gibson sent an email to Mr Munnings marked
“Importance: High”.710 The subject line of the email read “Coal Reserves in Mt
Penny area of Bylong Valley”. The body of the email read:
Mate – is there any possible way that we can get more details on this area?
For example is it possible for DPI to open its holdings for tender? You’ll see
from the map the area that DPI has, and are there any better assessments on
how much coal might [be] there? We need it asap.
781 Attached to that email were Wiles Map 1711 and the Ministerial Briefing of
9 May 2008.712
782 Mr Gibson gave evidence this email was sent responsive to a further request
from Mr Macdonald.713 He gave evidence that Mr Macdonald said to him, “I’ve
received the initial information and could I get more information about whether
[EL 6676 is] available for tender and what its resource assessment is as
quickly as possible.”714 He said that Mr Macdonald did not give any reason for
the request. In cross-examination Mr Gibson confirmed that he considered the
email as a “routine” follow-up email and that it was customary for Mr
Macdonald to make urgent requests for information. Mr Gibson also gave
evidence that he was aware that Mr Macdonald was travelling to China and
South Korea the following day and this may have had a bearing on the urgency
of the request for further information.715
783 At 1:33pm on 14 May 2008, Mr Munnings forwarded the email he had received
from Mr Gibson to Mr Hawkes asking that it be “actioned asap”. 716 Mr Hawkes
recalled receiving that email which he then forwarded to Mr Mullard and copied
to Mr Coutts.717
784 Mr Coutts gave evidence that he became aware of the request outlined in Mr
Gibson’s email when Mr Hawkes brought to his attention that he was getting
repeated requests from the Minister’s office for information that he considered
710
Exhibit A p 765.
711
Exhibit A p 769.
712
Exhibit A p 767.
713
T 2466.
714
T 2466.
715
T 2519. Mr Macdonald was overseas between 15 and 26 May 2008. See Exhibit A pp 771 -781.
716
Exhibit A p 761.
717
Exhibit A p 761.
5KIPGFD[#WUV.++
the Department had already provided.718 In the body of the email to Mr Mullard
and Mr Coutts, Mr Hawkes wrote, “I don’t know what all this is about. [Gibson]
seemed happy when we sent this initial info to him on Friday” 719 (a reference to
the information he sent to Mr Gibson on 9 May 2008).
785 At 2:43pm, Mr Hawkes sent a reply email to Mr Munnings (apparently copied to

Mr Coutts) requesting “more information on the background/reason for this
information request”.720 In the email, he went on to say:
The Department hasn’t done sufficient exploration drilling in the Mt Penny area
to give a definitive estimate of the coal reserves.
If it was desired that the area be open to tender what time frame may we be
looking at.721
786 Mr Hawkes did not recall receiving a response from Mr Munnings, Mr Gibson
or anyone else responsive to his request for more information on the
background or reason for the request for further information about coal
reserves.
787 At 3:51pm, Mr Coutts replied to Mr Hawkes’ email to Mr Munnings from 2:43pm

that day. In Mr Coutts’ email to Mr Hawkes, copied to Mr Munnings and Mr
Gibson, he wrote:
We also need a bit more [information] on what is the area we are looking at--
What do you mean by Mt Penny--it is not an area we recognise by that name
as a potential allocation area.722
788 Mr Coutts gave evidence he sent the email because he was getting irritated
that the Department was wasting time looking for information the Department
did not have. He did not recall receiving a response to his request for more
information and regarded his email as “the end of the matter”. 723
789 In cross-examination by Mr Neil, Mr Coutts said that he would have recognised

“Bylong Valley” or “Wollar-Bylong” if he had known that Mount Penny was
718
T 345.
719
Exhibit A p 761.
720
Exhibit A p 763.
721
Exhibit A p 764.
722
Exhibit A p 763.
723
T 345.
5KIPGFD[#WUV.++
within that geographical area. He agreed that some areas are known by
reference to a dominant geographical feature.724
790 Mr Coutts also gave evidence that he was not aware of any other emails sent
by him (on the topic of coal resources in the Mount Penny area) between
9 May 2008 (the email the subject of the first act of misconduct) and 14 May
2008 (the email the subject of the second act of misconduct). He explained that
the email he sent at 3:51pm on 14 May 2008, extracted above, was as a result
of continued requests from Mr Munnings to Mr Hawkes for “further advice over
and above what we [the DPI] had already provided”.725 Mr Coutts also gave
evidence that he instructed a staff member from his office to attach Wiles Map
1 and the Ministerial Briefing of 9 May 2008 to his email to Mr Hawkes because
he wanted Mr Hawkes to focus on that information when he was formulating
his response for further information.
791 Mr Gibson recalled speaking to Mr Macdonald about the query from the
Department seeking more information, saying words to the effect that “the
Department needs some more information on this particular area before they
can progress it further”.726 He said that Mr Macdonald responded by asking him
to “get the Department to see what else they can find”.727
792 Although Mr Gibson recalled communicating, either verbally or in writing, with

the Departmental staff who were seeking further information in order to comply
with the Minister’s request for information about whether EL 6676 could be
opened up for tender and the coal resources in that area, he could not recall
the precise terms of the response or who the response came from.
793 Ms Wiles gave repeated and consistent evidence that, in her view, the coal
resources in the area the subject of Mr Macdonald’s request could not be
meaningfully assessed without further exploration.728
794 Mr Mullard gave evidence that at 9 May 2008, that is, the date of Mr
Macdonald’s first enquiry about Mount Penny, the creation of Wiles Map 1 and
724
T 399, 406.
725
T 411.
726
T 2466.
727
T 2466.
728
T 2178, 2187.
5KIPGFD[#WUV.++
the ensuing email chain, the Department’s position as to the suitability of EL

6676 for release was:
It wasn’t suitable because we didn’t have enough information particularly in the

Bylong area. That’s why we’re planning additional exploration. 729
795 There is no evidence Mr Mullard’s views were communicated through to the
Minister on 14 May 2008 or, for that matter, any evidence that the Minister’ s
enquiry of 14 May 2008 was the subject of any meaningful response from the
Department before he departed for the trade mission in China and South Korea
on 15 May 2008.
796 In short, there is no evidence that the request the subject of the second act of
misconduct resulted in any additional information about coal reserves in the
area of Mount Penny being conveyed to Mr Macdonald, whether in terms of the
actual or potential tonnage of the coal resource or whether EL 6676 was
available for tender. Neither is it any part of the Crown case, as particularised,
that Mr Macdonald conveyed any additional information to the Obeids as a
result of his additional request of the DPI. The Crown case as closed is that
telephone communication between the accused on 14 and 15 May 2008
“provided opportunity for the three conspirators to update each other” but it is
stated no more specifically than that.730
Is the first act of misconduct and/or the second act of misconduct proved?
797 Mr Neil submitted that the Crown has failed to establish the first act of
misconduct as particularised because Mr Gibson’s evidence went no further
than Mr Macdonald asking for information about the “Mount Penny, North
Bylong area”731 without Mr Macdonald giving him any explanation for
requesting that information. The difficulty with that submission is that there was
no challenge to Mr Hawkes’ evidence that the verbal request made directly of
him by Mr Gibson was for “urgent information relating to… any coal reserves
within the Mount Penny region, area, locality” (emphasis added).732 Neither
was it suggested to Mr Gibson in cross-examination that he did not convey that
729
T 658.
730
MFI 181 par 190.
731
T 2463.
732
T 1134.
5KIPGFD[#WUV.++
request on behalf of the Minister or that Mr Hawkes misinterpreted the enquiry

made of him.
798 After taking into account all of the evidence relevant to proof of the first act of
misconduct, and contrary to the submissions advanced by Mr Neil, I am
satisfied that Mr Macdonald’s request for information from the Department via
Mr Gibson on 9 May 2008 was to the clear and unmistakable effect that he was
seeking information in the possession of the Department about the availability
of coal reserves in the Bylong Valley, with specific reference to the area of the
Bylong Valley situated near Mount Penny. I am also satisfied that the “follow-
up” enquiries about the possibility of the DPI opening its holding under EL 6676
to tender are to be understood in the same way.
799 In making that finding, I note that it was not suggested to Mr Gibson or to the
various Departmental witnesses who gave evidence of dealing with the request
from the Minister’s office on 9 May 2008, or the follow-up request on 14 May
2008, and not suggested in the closing submissions by the accused’s counsel,
that Mr Macdonald had no interest in the North Bylong/Mount Penny area as at
May 2008. To the contrary. The accused submitted that Mr Macdonald’s
enquiries of the Department were consistent with his settled policy agenda of
releasing further areas for coal exploration and, for that reason, it is reasonably
open for me to find that he initiated the enquiries of the Department on 9 May
2008 with a trade mission to China pending with a view to potentially attracting
foreign investors.
800 I accept that the timing of Mr Macdonald’s enquiries of the Department in the
week and then the day before he was due to travel to China on an official trade
mission with the then Premier of New South Wales, Mr Iemma, is not
insignificant.733 That is, I accept that Mr Macdonald’s request for information
from the Department about what Mr Martin described in his closing
submissions as “unallocated large coal areas and the possibility of their release
in the near future” might have been to generate interest in the coal industry in
New South Wales with parties he met on the trade mission, including Mr Fang,
a person already known to him.
733
5KIPGFD[#WUV.++
801 In my view, what remains significant and unexplained is Mr Macdonald’s

focused enquiries of the Department on what he referred to as the “North
Bylong/Mount Penny” area, as distinct from other unallocated large coal
release areas, including in the Western Coalfield, as to which the Department
would have been able to provide information of interest to foreign investors.
802 In a sense, the specific and unusual focus of Mr Macdonald’s enquiry of the
Department is revealed by a message from Mr Macdonald as Minister for
Mineral Resources on the facing page of each of the 2005 and 2008 New
South Wales Coal Profiles,734 and in which he makes specific reference to the
Bylong Valley in the Western Coalfield as a large unallocated coal resource
without any reference to “North Bylong/Mount Penny” in either of those
publications.
803 In short, I accept that although the evidence establishes that Mr Macdonald
might have been motivated in May 2008 to make enquiries of the availability of
unallocated coal reserves in the North Bylong/Mount Penny area, and the
viability of opening areas for coal exploration in that area of the Western
Coalfield for a number of reasons consistent with his multifaceted policy
agenda and explicably referable to it (including attracting foreign investors), in
my view, what is significant both in further proof of the Shepherd fact and the
separate but related question whether the first and second acts of misconduct
were in breach of his duty of impartiality and otherwise satisfy the “but for” test,
is that the only enquiry Mr Macdonald made of the Department in May 2008,
about the volume of coal reserves, whether by reference to the Western
Coalfield in particular or in any of the other coalfields in New South Wales,
concerned the “Mount Penny/ North Bylong” area.
804 Neither of the requests by Mr Macdonald of the DPI in May 2008, the subject of
the first and second alleged acts of misconduct, respectively, provided Mr
Macdonald with information about the actual volume of coal reserves in the
North Bylong/Mount Penny area measured in millions of tonnes (Mt) or the
location of any area adjacent or “contiguous” to any coal release area that
might be designated by the Department. On the Crown case, the significance
734
Exhibit V; Exhibit W.
5KIPGFD[#WUV.++
of an area contiguous to what was ultimately designated by the DPI as the

Mount Penny Coal Release Area emerged later in the course of Moses Obeid’s
(and Paul Obeid’s) dealings with Mr Brook in July 2008 when Wiles Map 2 was
produced by Paul Obeid and discussed at the second Wentworth Hotel
meeting.735
805 In considering whether the enquiries the subject of the first and second acts of
misconduct have been shown to be in breach of his duty of impartiality and
which were made for an improper purpose, established by reference to the “but
for” test, the fact in issue is not, it seems to me, what motivated Mr Macdonald
to make an enquiry of the Department about coal reserves in the North Bylong/
Mount Penny area on 9 May 2008, or for that matter the urgency that
accompanied that request for information or, further still, why he sought further
and better information from the Department on 14 May 2008 after being
provided with the information in the Ministerial Briefing Note and Wiles Map 1.
What I regard as significant, and what has ultimately satisfied me that the
enquiry was made in circumstances where Mr Macdonald knew that
Cherrydale Park was located near Mount Penny in the Bylong Valley and that it
was made in breach of his duty of impartiality and for an improper purpose
because it was informed by that knowledge, was Mr Macdonald’s specific
reference to “Mount Penny” in his request for information.
806 What emerges from the evidence from all the Departmental witnesses whose
evidence has been set out in detail above, including Mr Gibson as the
Minister’s policy advisor, is that no-one had heard of Mount Penny either
generally or in reference to coal reserves in the Bylong Valley before 9 May
2008. Mr Mullard described Mr Macdonald’s request for information as “a bit of
a bolt [from the blue]” because of the reference to “Mount Penny”.736 The
evidence also makes clear that it was because the Minister had requested that
specific information that Departmental officers set about undertaking their own
researches to locate Mount Penny, with Ms Wiles enhancing the trig point of
Mount Penny in producing Wiles Map 1 to comply with the Minister’s request.
735
736
T 940.
5KIPGFD[#WUV.++
807 It is not simply that Mount Penny was not a location that carried any
significance to the Department which warrants Mr Macdonald’s enquiry via Mr
Gibson being fairly described by the Crown in closing submissions as coming
from “left-field”.737 In my view, equal significance lies in the fact that no
evidence was adduced in cross-examination of either the Departmental officers
or Mr Gibson that it was commonplace, or at least not unusual, for Mr
Macdonald to utilise a dominating topographical feature when seeking
information about the availability of coal reserves in any of the coalfields in
New South Wales.
808 While I note that in cross-examination Mr Mullard accepted that the terms
“Mount Penny”, “North Bylong/Mount Penny”, “North Bylong” or “Wollar/Bylong”
are general terms for the same geographical area described in different ways
on different maps and not precisely defined on any of them, it is clear that
insofar as there is a reference to Mount Penny, Mr Mullard was referring to the
maps generated by the Department after May 2008, not that the Department
used “Mount Penny” as a descriptor before that date.738 Mr Mullard gave
evidence in chief that his understanding of the name the Department used to
describe the availability of coal within the Bylong Valley was according to a
broad nomenclature of the various regions within the Valley including “Bylong,
North Bylong and the Wollar regions. He went on to say:
There was a railway line that ran through the area and we were aware
[through the Dwyer Report] there were substantial coal resources and they
were of interest because they were very close to infrastructure; the rail which
enabled the coal to be taken to port.739
809 I note the submission advanced by both Mr Neil and Mr Martin that the Mount
Penny area might have been an apt way of describing the unallocated or “gap”
area in the Bylong Valley between EL 7091 held by Wilpinjong to the west and
Authorisation 287 held by Anglo Coal P/L to the east.740 That submission is
undermined by the fact that, as is clear from various maps tendered in the trial,
Mount Penny was located at the eastern most edge of that area of land, near
the western border of Authorisation 287. Moreover, what I regard as telling is
737
MFI 181 par 177.
738
T 1062.
739
T 657-658.
740
MFI 192 p 121.
5KIPGFD[#WUV.++
that despite Mr Macdonald’s extensive knowledge as the Minister for Mineral

Resources of the availability of coal resources in New South Wales and in the
Western Coalfield in particular, inclusive of his express reference to those
coalfields in successive publications of the Coal Profile, there is no evidence he
had previously used “Mount Penny” or the “North Bylong/Mount Penny” area as
a means of either describing an available coal resource or an area where a
coal resource might be located, whether in the unallocated or “gap” area
between EL 7091 and Authorisation 287 in the Bylong Valley or more
generally.
810 It is clear beyond any question that Mount Penny is a dominating topographical
feature at the eastern border of an extensive area encompassing what is
known as the Bylong Valley. I also accept that the Atlas of New South Wales
Mr Macdonald used as a reference from time to time showed Mount Penny by
a cross (apparently part of the lexicon used by the cartographer) relative to the
township of Bylong.741 Mount Penny was not, however, marked or highlighted
with any greater significance in the Atlas relative to the crosses marking the
location of other mountains and mountain ranges across the State.
811 In my assessment, greater significance lies in the section committed to the

Western Coalfield in the 2008 Coal Industry Profile (compiled by Mr Hughes
and others in the period 2005 to 2008 742 and a publication with which Mr
Macdonald was well familiar as the responsible Minister). In that publication
there is a detailed reference map (extracted below) showing the relative
positions of the open cut mine at Wilpinjong and the underground mine forming
part of the Moolarben proposal. That reference map also records what is
described as the “Bylong Proposal”743 where a proposed underground mine is
noted, but where the topographical feature of Mount Penny is neither noted as
part of the “Bylong Proposal” nor in the Bylong Valley more generally.
741
Exhibit 28.
742
T 2147.
743
Exhibit W p 130.
5KIPGFD[#WUV.++
The Shepherd fact is proved beyond reasonable doubt

812 Having considered the evidence bearing upon proof of the Shepherd fact and
the submissions of counsel directed to that issue, I am satisfied there is no
rational explanation for Mr Macdonald to have asked Mr Gibson to make the
focused enquiries of the DPI on 9 May 2008 or the follow-up enquiry he made
on 14 May 2008, in both instances where Mount Penny was specifically
referred to, other than because he knew not only that the Obeids owned the
5KIPGFD[#WUV.++
rural property Cherrydale Park, but that it was situated in the Bylong Valley
near Mount Penny. Mr Macdonald’s reference in the enquiries he had Mr
Gibson make to “North Bylong/Mount Penny as one area, as distinct from two
geographically separate areas, is a further reflection of that state of knowledge
or awareness.
813 In all those circumstances, and after taking into account the other evidence
bearing upon proof of the Shepherd fact to which I have already referred, I am
satisfied that fact is proved beyond reasonable doubt.
814 In proof of the related question as to whether, as the Crown contended, Mr

Macdonald asked for those enquiries to be made of the DPI at Edward Obeid’s
request or prompting, the Crown relied upon what were described as “multiple
opportunities” for him to do so from the degree of contact between Mr
Macdonald and Edward Obeid, including by telephone on the days preceding 9
May 2008:
(a) On the weekend of 3-4 May 2008, Mr Macdonald and Edward

Obeid attended the ALP Conference 744 and were in telephone
contact multiple times.745
(b) 5-8 May 2008 were Parliamentary sitting days.746 There was
telephone contact between Mr Macdonald and Edward Obeid,
and Edward Obeid and Moses Obeid, throughout that period.747
(c) On Thursday 8 May 2008:
(i) Moses Obeid was in phone contact with Edward Obeid at
7:36am and Mr Macdonald called Edward Obeid at
8:37am.748
(ii) At 10am a meeting was attended by each of Edward
Obeid, Mr Macdonald, James “Percy” Thompson, Beris
Lang, Kim Lang and a member of staff from Mr
Macdonald’s office to discuss the prospect of government
funding for an abattoir at Mudgee.749
(iii) Edward Obeid called Mr Macdonald twice at 2:14pm and
4:51pm.750
744
T 2430-2431.
745
Exhibit U.
746
Exhibit E.
747
Exhibit U.
748
Exhibit U.
749
I note it was the subject of an agreed fact tendered as Exhibit G that the topic of coal generally was not
discussed at that meeting.
750
Exhibit U.
5KIPGFD[#WUV.++
(iv) At 5:30pm, a meeting was scheduled between Mr

Macdonald and Edward Obeid.751
(v) Edward Obeid called Mr Macdonald at 5:36pm and called
Moses Obeid at 6:25pm.752
815 While this evidence is of some weight in establishing that it was Edward Obeid
who asked Mr Macdonald to obtain information about coal reserves in the area
of Mount Penny at this time (evidence relied upon by the Crown to prove the
existence of the conspiracy as at 9 May 2008 and Edward Obeid’s participation
in the conspiracy from that time) in my view, greater weight attaches to proof of
that fact, although not determinative of it, given my finding that there is no
rational reasonable explanation for Mr Macdonald to have made the specific
and focused enquiries of the DPI on 9 and 14 May 2008 other than because he
knew the Obeid family owned Cherrydale Park, a state of affairs which I am
satisfied Mr Macdonald was well aware of from as early as September 2007
when he had Mr Badenoch make enquires about the water licences that
attached to that property, enquiries I am well satisfied were made on Edward
Obeid’s behalf.
The first and second acts of misconduct are established
816 I am satisfied for those related reasons that Mr Macdonald acted wilfully in
breach of his duty of impartiality by making the specific and focused enquiries
of the Department on 9 and 14 May 2008, enquiries which I am satisfied he
would not have made were it not for the improper purpose of advancing the
private interests of the Obeid family.
817 Those related findings of fact do not, however, compel the further finding that
Mr Macdonald’s enquiries of the Department were acts of misconduct
committed by him in furtherance of a conspiracy in existence at 9 May 2008.
While I accept that proof of the Shepherd fact and proof of a wilful breach of his
Ministerial duty and obligation of impartiality does add weight to proof of that
issue, it is not determinative of it. If there remains a rational, and not simply a
theoretical, possibility that in making those enquiries of the Department Mr
Macdonald was either acting unilaterally (whether out of friendship for Edward
751
Exhibit A p 745.
752
Exhibit U.
5KIPGFD[#WUV.++
Obeid or as an unsolicited act of favouritism) or that he made the enquiries at

Edward Obeid’s request but without a pre-existing agreement with him (or
Moses Obeid) of the specific kind the Crown prosecutes under the indictment,
that is, if the Crown cannot exclude either or both motivation or explanation as
a possible reason for Mr Macdonald’s misconduct, the Crown will have failed to
prove that it is conduct available to it in proof of the existence of the conspiracy
charged.
818 It is the Crown case that the first and second acts of misconduct committed in
breach of Mr Macdonald’s Ministerial duty and obligations of impartiality (cf. in
breach of his duty of confidentiality), in circumstances where he knew the
Obeids owned Cherrydale Park in the Bylong area situated near Mount Penny,
would allow me to readily infer that Mr Macdonald was “seeking the
information” and at Edward Obeid’s request, not merely as a favour to assist
him and his family753 but because he was assembling information in
furtherance of the conspiratorial arrangement he had forged with Edward
Obeid and Moses Obeid by 9 May 2008 and, further, that “but for” his
agreement with them that he would misconduct himself as Minister in
connection with the granting of an EL at Mount Penny, he would not have
sought specific information about coal reserves in the area of Mount Penny or
the possibility of the DPI releasing its holdings under EL 6676 to tender at that
time.
819 To express the issue another way, even were I satisfied that Mr Macdonald’s
conduct on 9 and 14 May 2008 was in breach of his duty of impartiality
because he had enquiries made of the DPI at Edward Obeid’s request, and
that he would not have made those enquiries at all, or at that time, were it not
for the improper purpose of advancing the private interests of the Obeid family
as the owners of Cherrydale Park, if it is open for me to find that Mr Macdonald
made those enquiries, or he might reasonably have done so, not because of
having agreed to misconduct himself as alleged by the Crown but 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
753
MFI 181 pars 179 and 183. The Crown does not specify the type of “assistance” or what Mr Macdonald
knew or believed the Obeids would do with the information.
5KIPGFD[#WUV.++
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 (motivations which I note are not inconsistent with the nuanced
motives the Crown attributed to Mr Macdonald in agreeing to participate in the
conspiracy charged),754 proof of the first and second acts of misconduct would
not be probative of the ultimate fact in issue, namely whether the existence of
the conspiracy framed in the indictment is proved beyond reasonable doubt.
820 In the Crown’s submission, Mrs Fitzhenry’s evidence that Moses Obeid told her
husband that Mr Macdonald had told his father about the existence of “coal
leases” at Cherrydale Park on an occasion that I would be satisfied was before
9 May 2008 was evidence supportive of proof of the first and second acts of
misconduct, being acts in furtherance of an existing conspiracy.
The relevance of the evidence of Mr and Mrs Fitzhenry to proof of the Crown
case
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 2006.755
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. 756
824 Mr Fitzhenry gave evidence that within six months of Moses Obeid’s family
moving into the Elizabeth Bay property (maybe a little longer) Moses Obeid told
him that he was “looking for a property for [his father] to go to on weekends like
a holiday farm.”757 He gave evidence that sometime after that initial
754
MFI 181 par 36.
755
T 1301.
756
T 1282.
757
T 1283.
5KIPGFD[#WUV.++
conversation, Moses Obeid said to him “[w]e’ve found a property that belongs
to Kerry Packer’s accountant, a property called Cherrydale.” 758
825 Mrs Fitzhenry recalled a conversation she had with Moses Obeid in which
Moses Obeid said that the Obeid family were in the process of purchasing 759 a
property which, as she recalled, Moses Obeid referred to as “[t]he farm in the
Bylong Valley”.760 Mrs Fitzhenry recalled being shown images of the farm on a
laptop by Moses Obeid, including photographs of the rose garden and the
house.761 Mrs Fitzhenry said this conversation occurred in “probably 2006,
2007”, and that by that time “the fence was down” between the neighbouring
properties.762 She said that Moses Obeid indicated that the Obeid family
wanted to use the Bylong Valley property for the extended Obeid family to
spend time together. Mrs Fitzhenry gave evidence that she had more than a
dozen conversations with Moses Obeid about Cherrydale Park over “quite a
period of time”.763
826 In cross-examination, Mrs Fitzhenry confirmed that the proposition put to her
by Mr Neil that the Cherrydale Park settlement occurred on 15 November 2007
accorded with her recollection. Other evidence in the trial establishes that the
conversation Moses Obeid had with both Mr Fitzhenry and Mrs Fitzhenry about
the prospective purchase of Cherrydale Park must have taken place sometime
in September/October 2007 with settlement having occurred on 17 November
2007.
827 That evidence, which was not the subject of contest, provides the context in
which the Crown relied upon other aspects of the evidence of Mr and Mrs
Fitzhenry in proof of its case, as follows:
(a) Mr Macdonald being present at Moses Obeid’s properly on one

occasion around the time of the settlement of the Cherrydale
Park purchase.
(b) Mr and Mrs Fitzhenry’s evidence that Moses Obeid proposed
that Mr Fitzhenry purchase Coggan Creek.
758
T 1283-1284.
759
T 1302.
760
T 1301.
761
T 1302.
762
T 1302.
763
T 1303.
5KIPGFD[#WUV.++
(c) In the course of that conversation, according to Mrs Fitzhenry, Mr

Macdonald’s name was mentioned.764
828 In written submissions furnished in advance of the Crown’s closing
submissions,765 the Crown made clear the use to which it sought to put this
evidence.
829 As to the direct evidence in (a) above, that was said be probative of the
existence of the conspiracy and the participation of each of the accused it. In
oral closing submissions however the Crown, retreated from that position. The
Crown prosecutor accepted that the evidence in (a) went no higher than
establishing an opportunity for the accused to meet and discuss the formation
of the unlawful agreement that matured into the conspiracy charged. In the
absence of any content to any discussions between the accused or even the
context in which they were meeting, I do not regard that evidence as probative
at the scope of conspiracy alleged and of marginal relevance only proving its
existence.
830 Mr Fitzhenry gave evidence that Moses Obeid introduced him to Mr Macdonald
as “Macca” a few weeks after a discussion he had with Moses Obeid about
coal on Cherrydale Park (as to which see later) in the driveway area in the front
of the house, which in another part of his evidence he said was after settlement
of the purchase of Cherrydale Park.766 He said he nodded and kept walking.
He said he met Mr Macdonald on one further occasion although briefly. On
neither occasion did they speak.
831 Mr Fitzhenry also gave evidence of a telephone conversation Moses Obeid

was having with Mr Macdonald when Moses Obed said to him, “This is Macca,
you can give him the tip.”767 He then passed on a horse racing tip to Mr
Macdonald.768 He could recall no other instances where Moses Obeid said he
was talking to Mr Macdonald when he was on his mobile phone.
764
T 1307. Mr Fitzhenry did not given that evidence and was not recalled by the Crown after Mrs Fitzhenry had
concluded her evidence.
765
MFI 182.
766
T 1292.
767
T 1291.
768
T 1291.
5KIPGFD[#WUV.++
832 Mr Fitzhenry recalled meeting Edward Obeid on several occasions including at

Edward Obeid’s house, at Moses Obeid’s house and at a coffee shop on
Darlinghurst Road. He gave evidence of anything said on those occasions.
833 I am unable to afford Mr Fitzhenry’s evidence of a casual introduction to Mr

Macdonald at Moses Obeid’s home on one occasion, or Moses Obeid casually
introducing Mr Macdonald to him or Moses Obeid speaking on the phone to Mr
Macdonald about horseracing, any weight on the question whether Crown has
proved a conspiracy of the specific kind framed in the indictment. It does go to
prove they had a relationship but it is limited to that issue.
834 The Crown relied upon the evidence of Mr and Mrs Fitzhenry in (b) and (c)
above for the non-hearsay purpose of establishing, against each of the
accused, the existence of the conspiracy and its scope and, as against Moses
Obeid, evidence of his participation in the conspiracy on the basis that the
conversations constitute admissions against interest under s 81 of the
Evidence Act. The Crown made clear its position that this evidence was not
relied upon in invocation of s 87(1)(c) of the Evidence Act to prove the
participation of Edward Obeid or Mr Macdonald in the conspiracy alleged.
835 In those circumstances, it is not surprising that only Mr Neil addressed the
evidence of Mr and Mrs Fitzhenry in any detail.
836 Before turning to those submissions and undertaking the necessary critical
review of Mr and Mrs Fitzhenry’s evidence, I note that in the Crown’s oral
closing arguments, the relevance of their evidence in (a) and (b) above
(perhaps Mrs Fitzhenry’s evidence in particular) to proof of the Crown case
crystallised in a way that was not obvious when the Mr and Mrs Fitzhenry gave
evidence very early in the trial and not obvious from the Crown’s written
submissions.
837 In closing oral submissions, the Crown placed significant reliance upon a
construction of Mr Fitzhenry’s evidence that Moses Obeid suggested he
purchase Coggan Creek, (a conversation overheard by Mrs Fitzhenry but very
differently recounted by her) as probative of the existence of the conspiracy. As
I understand the Crown’s submission, that conversation is not, however, said to
be probative of the existence of the conspiracy at the time of the conversation.
5KIPGFD[#WUV.++
It is said to provide a factual underpinning to proof of the conspiracy by

reflecting Moses Obeid’s keenness to exploit the knowledge he had by that
date that there was a coal underlying Cherrydale Park and in that way
providing the context in which the conspiracy was forged.769
838 I raised with the Crown in the course of closing submissions whether Moses
Obeid’s approach to Mr Fitzhenry to purchase Coggan Creek as the property
adjoining Cherrydale Park (because of what Moses Obeid represented was the
potential financial return from coal exploration over land which would
presumably encompass both properties) was, on the Crown case, to be
understood as sourcing from Moses Obeid’s recently acquired knowledge of
the proximity and encroachment of Authorisation 287 on Cherrydale Park and,
more generally, from information he had gathered from legitimate sources
about coal reserves in the Bylong Valley near Mount Penny, including the
significance of the Coggan Creek Railway.
839 The Crown submitted that when Mrs Fitzhenry’s evidence as to what she
recalled of overhearing a conversation or conversations between Moses Obeid
and her husband is taken into account together with her husband’s evidence,
the timing of the conversations about purchasing Coggan Creek aligns with the
admissions made by each of Moses Obeid and Edward Obeid to journalists in
2012 that they became aware of coal beneath Cherrydale Park and had taken
preliminary steps to look at purchasing neighbouring properties in late 2007 or
the early part of 2008.
840 The Crown submitted, however, that I would be satisfied that it was not an “exit
strategy” that was being discussed with Mr Fitzhenry (the explanation proffered
by Edward Obeid and Moses Obeid in their conversation with journalists in
2012)770 but evidence of a singular and driving disposition on Moses Obeid’s
part (and on the part of his brothers and his father) to exploit the coal resource
they had discovered underneath Cherrydale Park for financial gain by seeking
investors into a scheme that would, or might, realise the value of that resource.
The Crown submitted that the timing of Moses Obeid’s approach to Mr
Fitzhenry in early 2008 and an email sent by Damian Obeid to Ross Triulcio,
769
T 3637- T 3638.
770
Exhibit AV(2).
5KIPGFD[#WUV.++
who purchased Donola, on 1 April 2008 attaching a map emailed by the vendor
of Donola,771 is consistent with that same strategy.
841 The Crown also placed reliance on the timing of the conversation between
Moses Obeid and Mr Fitzhenry concerning the purchase of Coggan Creek, and
the money to be made from the underlying unexploited coal resource in
support of proposition that the Obeids’ enthusiasm for the coal they learnt was
underlying the area of Mount Penny was what led to Mr Macdonald being
approached by either or both of Edward Obeid and Moses Obeid to enter into
an agreement with them that he would commit misconduct in public office in
connection with the granting of an EL at Mount Penny which would encompass
Cherrydale Park and the two neighbouring properties. As I understand it, that
submission is pressed as a further basis upon which I would conclude that the
conspiracy was in existence and on settled terms by the time Mr Macdonald
committed the first act of misconduct on 9 May 2008, that is, when he made
enquiries of the DPI about coal reserves in the area of Mount Penny.
842 Whether that submission is persuasive depends, very substantially, not only
upon the timing of the conversation to which Mr Fitzhenry deposed and the
timing of the multiple conversations Mrs Fitzhenry deposed to overhearing
between Moses and her husband (she had no direct conversation with Moses
Obeid about Coggan Creek) but also the content of those conversations which
might shed some light on when they occurred.
843 On that issue, in closing submissions, the Crown accepted, both fairly and
appropriately, that the evidence of both Mr and Mrs Fitzhenry was vague as to
timing and, adopting my characterisation, also “opaque”.772
844 That concession was fairly made, if for no other reason, than Mrs Fitzhenry
provided additional information in cross-examination that the conversation as
she overheard it between her husband and Moses Obeid as it related to the
purchase of Coggan Creek and “coal leases on the land” 773 (the conversation
in which Mr Macdonald’s name was mentioned) may have taken place much
later in 2008, namely in September or October 2008, that is, at a time when the
771
Exhibit A pp 728.001-728.002.
772
T 3639.
773
T 1304.
5KIPGFD[#WUV.++
evidence in the trial not only supports the proposition that Moses Obeid
perceived the need to expand his search for other potential investors in a
landholders alliance that might contract in a joint venture with the mining
company (which, on the case he advanced, was something he was legitimately
pursuing at that time as an “exit strategy”)774 but also, and more critically, many
months after the date before which the Crown contends the conspiracy that it
prosecuted at trial was in existence.
Mr Fitzhenry’s evidence
845 Mr Fitzhenry gave evidence that “maybe a month” after the initial conversation
with Moses Obeid about the family purchasing Cherrydale Park, Moses Obeid
told him “there was coal underneath… Cherrydale [Park]” 775 and that Moses
Obeid indicated to him 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.776
846 Mr Fitzhenry also gave evidence that “within weeks” of that conversation he
accompanied Moses Obeid on a helicopter trip to Cherrydale Park. He said the
issue of coal was not raised on the flight or on arrival at Cherrydale Park.777
847 Mr Fitzhenry estimated, although in very vague terms, that he “imagine[d]” 778
within a month of the helicopter trip Moses Obeid suggested, in what he
described as a “very fleeting” conversation,779 that Mr Fitzhenry mortgage his
property in Sydney (the amount of $3 million was mentioned) and purchase the
adjoining property to Cherrydale Park on the basis that, “if the whole coal thing
went through, there was a substantial amount of money to be made out of
it”.780 In another part of Mr Fitzhenry’s evidence concerning Moses Obeid’s
suggestion that he buy “the property next door”, he said that discussion was
“some time later”781 [after the helicopter trip] and in re-examination he said the
774
Exhibit AV(2).
775
T 1286.
776
T 1286.
777
T 1287.
778
T 1287.
779
T 1299.
780
T 1287-1288.
781
T 1287.
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“fleeting conversation” was what he described as “in the initial stages”, his best
“guestimation” being after the Obeids had “settled on the farm”. 782
848 Mr Fitzhenry was unable to recall the name of the adjoining property but he did
recall that he was told by Moses Obeid that the proximity of a rail line made the
property valuable to a coal mine.783 He also said that Moses Obeid told him the
family was currently making mortgage payments on the property which Moses
had suggested he should purchase.784
849 In cross-examination by Mr Neil, Mr Fitzhenry was taken to some evidence he

had given in June 2011 in the ICAC proceedings where he was asked
questions about a syndicate that might pay interest on loan in the event that Mr
Fitzhenry borrowed money to buy the next farm. He confirmed a memory of
giving that evidence and that the company involved was “Cascade Mining or
Cascade Coal”.785 He gave the following evidence:
Q. At 131 to 2, were you asked this question:

“Q. Now, if we can come back to when he said certain things to you?
A. Yeah, he then explained to me about the coal amounts and how
much would be, how much would come out of it and how much would
have to be put in and the, the syndicate that was put together, or the
Obeids, I'm not sure, would pay the interest on the loan. So if I
borrowed the money to buy the next farm, which incidentally had the
railhead coming to it, I would get a certain percentage out of it. He
didn't - I didn't get - the discussion didn't get to the point where I got
down to specifics.”
A. Correct.
Q. By that answer, were you meaning to convey that you thought that either
the syndicate or the Obeids would pay interest on the loan?
A. The syndicate I have no knowledge of, about paying the interest on the
loan. But the interest on the loan was directed from Moses Obeid to me. But at
that stage I had no interest in it whatsoever. It was a passing conversation with
no specifics.
Q. But you understood the syndicate to be Cascade Mining or Cascade Coal,
is that right?
A. I understood the whole thing but I didn't want any part of it.
850 In re-examination at trial, Mr Fitzhenry was asked the following leading
question (without objection):
782
T 1299.
783
T 1288.
784
T 1288-9.
785
T 1298.
5KIPGFD[#WUV.++
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.786
851 The source of Moses Obeid’s knowledge of “coal underneath Cherrydale
[Park]”,787 information he apparently openly shared with Mr Fitzhenry after
Cherrydale Park was purchased, appears, even on the Crown case, to be
information he likely acquired from his own enquiries of publicly accessed
online resources which were motivated by learning of the encroachment of
Authorisation 287 on Cherrydale Park. It would also appear that there were two
conversations concerning the acquisition of the adjoining property with the
second, as to which he gave more fulsome details of in his evidence in 2011,
nine years before the trial, occurring many months after the date where on the
Crown case the conspiracy was formed. That evidence and the specific
reference he volunteered about Cascade Coal P/L or “Cascade Mining” would
appear to me to be a conversation in early 2009 when Cascade Coal P/L was
in negotiations with Mr Brook and Moses Obeid as to the basis upon which
Monaro Mining NL’s application for the grant of the EL at Mount Penny would
be withdrawn.788 The timing of the earlier conversation where coal and the
property adjoining Cherrydale Park (Coggan Creek) were mentioned in
tandem, however, seems to me, on Mr Fitzhenry’s evidence, to be early in
2008.
Mrs Fitzhenry’s evidence

852 Mrs Fitzhenry gave evidence that she was present, but not participating in a
conversation between her husband and Moses Obeid where, as she expressed
it, “Moses said that Peter [Fitzhenry] should buy the adjoining property [to
Cherrydale Park] because there would be money to be made out of it in the
long term”.789
853 She was then asked the following question:
Q. Did Moses explain how there would be money to be made?

A. Yes, he referred to the leases on the land, the coal leases on the land.
786
T 1298.
787
T 1286.
788
789
T 1304.
5KIPGFD[#WUV.++
Q. Did he refer to the coal leases as already existing or something in the

future?
A. He referred to them as they - meaning they already existed on the property,
yes. 790
854 She went on to give evidence that she did not hear her husband enquire as to
how there would be money made from the purchase of the adjoining property,
other than because of what she described as the “coal leases” 791 which, on one
rendering of Mrs Fitzhenry’s evidence, was referable to a Google Earth search
she saw Moses Obeid undertake. In contrast to the evidence of her husband,
Mrs Fitzhenry said that Moses Obeid continued to talk about coal “in terms of
us purchasing the property”.792 She said there were two or three conversations
which her husband “shut … down fairly swiftly”.793
855 Mrs Fitzhenry was then asked whether she recalled what, if anything, Moses
Obeid said specifically about “coal and leases” in the overheard conversation
as to which she gave the following answer:
A. So he referred to the fact that they knew that there was coal on the
property, he referred to $100 million for the family and he referred to the fact
that there was a Minister that was involved that had basically notified the
family that that coal was on the property.
Q. Did he say the name of that Minister?
A. Ian Macdonald.794
856 That question was objected to on the basis that it was neither foreshadowed by
the Crown as part of its disclosure obligations nor as part of the Crown’s
particularised case that Mr Macdonald informed or notified any member of the
Obeid family that there were “coal leases”795 to which Cherrydale Park was
subject.
857 After reviewing Mrs Fitzhenry’s statement and hearing argument from Mr Neil
and Ms Francis in her absence, I accepted that Mrs Fitzhenry’s evidence that
Mr Macdonald had not notified the Obeid family there was coal on the property
was not strictly foreshadowed. However, I allowed the question to stand having
790
T 1304.
791
T 1304.
792
T 1305.
793
T 1305.
794
T 1307.
795
T 1304.
5KIPGFD[#WUV.++
regard to the more nuanced way in which I was satisfied this subject was
covered in Mrs Fitzhenry’s served statement.
858 When Mrs Fitzhenry resumed her evidence the following questions were
asked:
Q. In relation to the evidence you gave just before that break, you said, "So he
referred to the fact that they knew that there was coal on the property".
Understanding it is difficult, could you, to the best of your recollection, recount
the conversation just on that issue of Moses referring to the fact that they knew
that there was coal on the property?
A. The conversation surrounded us purchasing the adjacent property. So he
was referring to the fact that there was money to be made, that there were
coal leases on the property and that we would also be making money if we
purchased the adjoining property.796
859 When asked by the Crown to recount that conversation in direct speech, she
attributed to Moses Obeid the following words:
We’re going to make a lot of money out of the property. The family is looking at
making $100 million and we'll basically be set for life.797
860 She was unable to attribute to Moses Obeid the words he used when
nominating Mr Macdonald as “the Minister involved” other than to say Mr
Macdonald’s name “was mentioned in relation to the coal leases on the
property and that he had notified the family that there were the leases on that
land.”798
861 In further legal argument as to whether Mrs Fitzhenry should be permitted to

revive her memory from her statement, the Crown was permitted to ask who Mr
Macdonald had notified that there were “leases on the land” in response to
which she said “his [Moses Obeid’s] father”,799 clearly a reference to Edward
Obeid.
862 She was then asked the following question over objection:
Q. Did Moses Obeid tell you anything further about what Ian Macdonald
notified Edward Obeid of in relation to Cherrydale?
NEIL: I object.
FRANCIS: I object.
796
T 1310.
797
T 1310.
798
T 1311.
799
T 1319.
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HER HONOUR: I will allow that question.

WITNESS: It was basically regarding the coal leases at Cherrydale. That's all.
Is that the answer to your question, or am I getting the question--
CROWN PROSECUTOR RODGER
Q. Again, if you can remember the words said, that would be of great
assistance or the best recollection of the words?
A. I can’t go there, no, it’s too far gone.
Q. In relation to when this conversation occurred and if I can ask you in terms
of you are aware roughly of the time of the purchase of Cherrydale, how long
after that, if indeed it was after, did this conversation occur?
A. I don’t think it was after the actual purchase had gone through. It was
between the time of him first showing us the property and the subsequent
purchase.800
863 In cross-examination, Mr Neil asked Mrs Fitzhenry whether in light of the fact
that she knew in November 2008 that the Obeids had purchased Cherrydale
Park and that she also knew that a contract for the sale of Coggan Creek was
entered into on 7 November 2008 with the purchaser being a company
associated with a person she knew, namely Mr Lewis, she accepted that the
conversation she overheard her husband having with Moses Obeid about the
purchase of Coggan Creek may have been “in the period September, October
of 2008”.801 She was then asked the following question:
Q. Would you agree that after Mr Moses Obeid or his family purchased
Cherrydale, that the first time thereafter that there was any conversation
between you and he or you and your husband and he on the topic of coal or
the possibility of coal at Cherrydale was in about September, October 2008?
A. I can’t be certain of the months.802
864 She was then taken to evidence she gave at an ICAC hearing on 13
September 2012 in the context of having given some evidence in the trial about
the figure of $100 million. In her evidence in those proceedings Mrs Fitzhenry
referred to a figure of $20 million in relation to “a deal” involving the Obeid
family, Cascade Coal P/L, White Energy P/L and Mr Richard Poole, director
and chairman of Cascade Coal P/L.803
800
T 1319-1320.
801
T 1322.
802
T 1322.
803
T 1324; Exhibit C.
5KIPGFD[#WUV.++
865 Mrs Fitzhenry gave evidence in the trial that Mr Poole was “putting [the deal]
together” and that she knew Mr Poole.804 This appears to be consistent with
the evidence given by Mr Fitzhenry I referred to earlier. Mr Neil also put to Mrs
Fitzhenry that “any discussion you had with Mr Moses Obeid about a deal was
one involving Mr Poole [a person she said she knew] and/or the company
Cascade or White Energy”805 (a proposition which she accepted).
866 She was then asked the following questions and gave the following answers:
Q. I do want to suggest to you that Mr Obeid did not mention to you

$100 million and I think you disagree with that, do you?
A. Absolutely.
Q. But what I am asking you is that to the extent that there was the prospect of
money coming to Mr Obeid or his family from a deal, it was a deal involving
Mr Poole, is that right?
A. Mr Poole was putting it together.
Q. And I want to suggest to you that any deal being put together with Mr Poole
would have spanned the time between about May 2009 and early 2010?
A. That I can't be certain of.806
867 When Mrs Fitzhenry was invited to accept that Moses Obeid neither referred to
existing coal leases on Cherrydale Park in any conversation she overheard him
having with her husband, nor that he made any reference to Mr Macdonald in
that connection, she said that she believed there were conversations of that
kind and that the Minister was mentioned by name.807
868 In re-examination, Mrs Fitzhenry gave evidence that the figure of “20 million”
which she mentioned in evidence before ICAC “was an instalment” of the “100
million” which Moses Obeid conveyed as being “expected” as a result of the
mining leases.808
The weight to be afforded the evidence of Mrs Fitzhenry

869 The conversation Mrs Fitzhenry overheard her husband have with Moses
Obeid about the purchase of Coggan Creek, in the course of which mention
was made of Mr Macdonald as the source of information of “coal leases” on
Cherrydale Park, might have occurred, as she conceded, in September or
804
T 1324.
805
T 1323.
806
T 1324.
807
T 1324.
808
T 1324.
5KIPGFD[#WUV.++
October 2008, well after the date when, on Crown case, the conspiracy was
formed. After taking into account both the third-hand nature of Mrs Fitzhenry’s
account of that conversation, and the understandable and entirely acceptable
imprecision in her memory of what was said many years after she overheard
the conversation, that aspect of her evidence is without any weight in proof of
the facts in issue in the trial.
The weight to be afforded the evidence of Mr Fitzhenry

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.
The events after 14 May 2008 up to and including the meeting on 6 June 2008
873 In my view, the question whether the Crown has established the existence of
the conspiracy charged as at 9 May 2008 will also be informed by a close
5KIPGFD[#WUV.++
analysis of what was actually occurring in the Department while Mr Macdonald

was overseas between 16 and 27 May 2008, and what steps, if any, Mr
Macdonald took on his return to Australia to follow up the enquiries he made on
14 May 2008 (which went unanswered at that time) about the volume of coal
reserves in the area of Mount Penny and the viability of opening up EL 6676 to
tender.
874 As significantly, is the question whether the Crown can establish that in the
course of the Minister’s meeting with Mr Mullard on 4 June 2008, he directed
attention to the area of Mount Penny (by that time represented in Wiles Map 2)
and whether the Crown can establish that at the further meeting on 6 June
2008 he directed the Department, through Mr Mullard, that the potential large
open cut area depicted in Wiles Map 2 be reduced to comprise a smaller area
to the east of the Bylong Valley (the conduct the subject of the fifth act of
misconduct). That enquiry does, of course, need to be undertaken in the
context of the finding I have already made, and for the reasons already given,
that by no later than 9 May 2008 Mr Macdonald knew the Obeids owned
Cherrydale Park in the Bylong Valley situated near Mount Penny.
875 It would seem to me that if I am satisfied that at the meeting on 6 June 2008 Mr
Macdonald directed the Department that a smaller coal release area should be
designated effectively so as to encompass Cherrydale Park, and if I am
satisfied that was also an act of misconduct being in breach of his duty of
confidentiality and which satisfies the “but for” test, that will add very
considerable weight to that conduct being an overt act committed by Mr
Macdonald in furtherance of a conspiracy not only in existence as at 6 June
2008 but, by inference, in existence by 9 May 2008 when, on the Crown case,
he committed the first act of misconduct, not an act of misconduct extrinsic to
the conspiracy charged but an act in furtherance of it.
876 In undertaking an examination of the evidence with that focus, the first question
that immediately presents is whether there is an available inference that within
days of Mr Macdonald’s return to Australia on 27 May 2008 he took the
opportunity (even if covertly), in the course of pursuing his wider policy
objectives of releasing further coal areas for exploration, to pursue with the DPI
5KIPGFD[#WUV.++
the availability of coal resources in the North Bylong/ Mount Penny area as a
potential coal release area. An answer to that question may provide a factual
foundation for a further finding that Mr Macdonald took the opportunity, at that
time, to follow-up the enquiries had made before departing from Australia, with
the objective he shared with Edward Obeid and Moses Obeid, as co-
conspirators, that he would misconduct himself in connection with the granting
of a EL at Mount Penny for the improper purpose of advancing their private
interests, when the opportunity presented, in that instance by pursuing the
possibility of the Department releasing EL 6676 to tender.
The third act of misconduct is abandoned by the Crown
877 In addressing that scenario, I should make reference to the fact that the third
act of misconduct, as originally pleaded, was opened on by the Crown but
subsequently abandoned in the course of the trial.809
878 As originally pleaded (as at 1 May 2019), the third act of misconduct alleged
that:
THIRD MISCONDUCT: In late May 2008. Mr Macdonald directed that there be

a coal mining exploration licence expression of interest process (EOI)
targeting, inter alia, Mt Penny. At the time, the Mt Penny area was not suitable
as a potential coal allocation area as further exploration was required. Mr
Macdonald did so in breach of his duty of impartiality as he knew the Obeid
family property in this location.810
879 As Mr Neil submitted, the Crown was forced to abandon that aspect of its case,
because there was no evidence of any communication with the Department,
whether by Mr Macdonald directly or indirectly from the Minister’s office, to the
effect that the EOI process should include Mount Penny. Nor was there any
evidence that on Mr Macdonald’s return from the trade mission to China and
South Korea on the morning of 27 May 2008 he identified coal resources in any
particular area that would indicate, or might indicate he had any continuing
interest in the enquiry he made through Mr Gibson on 9 and 14 May 2008,
much less that he gave any direction that there be an EOI process for the
granting of an EL “targeting” Mount Penny.
809
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 14) [2020] NSW 1948.
810
MFI 2.
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880 Mr Neil submitted that although abandoning the third act of misconduct was a
proper and fair reflection of the Crown’s prosecutorial obligations, it exposed a
fatal forensic weakness in the maintenance of the Crown case. He submitted
that abandoning the third alleged act of misconduct also reflects what the
Crown was forced to concede in its closing submissions, namely, that as
Minister for Mineral Resources, Mr Macdonald was actively promoting a broad-
based policy of promoting coal exploration in New South Wales, including the
utilisation of an EOI process for the release to tender of small to medium coal
release areas, as a policy which had been promoted by him long before he
sought information from the Department on 9 May 2008 and on 14 May 2008
about coal resources in North Bylong/Mount Penny area.
881 In Mr Neil’s submission, the factual contest between the parties that resulted
from the Crown abandoning the third act of misconduct became not why the
process for the release of small to medium areas was initiated in 2008 but why
and how the Mount Penny Coal Release Area came to be included in that
process. The accused submitted that by the Crown advancing the submission
in closing that Mr Macdonald “slipped” Mount Penny into an otherwise
uncontroversial EOI process so that its inclusion would be less likely to be
scrutinised811 revealed the truly speculative nature of the Crown case.
882 Mr Neil submitted that Mr Macdonald’s conduct in his meetings with Mr Mullard
on 4 and 6 June 2008 not only failed to reveal a determination on Mr
Macdonald’s part to “slip” the Mount Penny Coal Release Area into an EOI
process for the release of small to medium areas to conceal his criminal
conduct, it serves to demonstrate that the steps taken by the Department that
resulted in the creation of the Mount Penny Coal Release Area within weeks of
that meeting were independent of Mr Macdonald. Mr Neil also pointed to Wiles
Map 2 having been prepared for the Minister’s consideration because of work
done by the Department between 30 May and 2 June 2008 to include that area
as a potential large coal release area. He submitted that it was only when the
various practical obstacles to it being released as a large area were discussed
with the Minister on 6 June 2008 that he enquired whether it could be made
into a smaller area, without giving any direction to Mr Mullard that a smaller
811
MFI 181 par 268.
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area should be in the eastern portion of Wiles Map 2 or that was the area
where the Department should direct its focus.
883 These submissions raise critical questions, the answers to which will likely
have a direct bearing on whether the Crown has proved its case.
The events leading up to the 4 June 2008 meeting
884 I have already noted that I am satisfied that prior to Mr Macdonald leaving for
the trade mission to China and South Korea on 15 May 2008 (a mission also
attended by Mr Coutts) he made it clear to the Department, through
discussions with Mr Coutts and, in a sense, despite his opposition, that he was
keen for the Department to identify both large and small areas for release as
coal exploration areas. I am also satisfied that Mr Coutts instructed Mr Mullard
to undertake those enquiries. Further, in an email sent by Mr Coutts to Mr
Mullard on Sunday 1 June 2008, he refers to a conversation with Mr
Macdonald the previous day, confirming that on Mr Macdonald’s return to
Australia a few days earlier, he had raised with Mr Coutts the need to progress
the agenda for the release of both small and large areas and, it must be
inferred, that the Department should take the necessary steps to comply with
his request.
885 The email sent by Mr Coutts to Mr Mullard was in the following terms:
Minister rang this morning to ask about future allocations. I said you would
have something to him early next week. He indicated Watermark might go next
week so don’t be surprised if it all happens
Good Luck812
886 At this point I digress slightly to elaborate further upon the significance of the
Watermark EL earlier referred to.
The Watermark EL
887 The Watermark Exploration Area was a 270 km² coal resource containing more
than 1 billion tonnes of domestic and export quality thermal coal situated
adjacent to the Caroona Exploration Area 813 near Gunnedah in New South
812
Exhibit A p 813.
813
As to which see par 674 and following.
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Wales. The EOI process in relation to Watermark was launched in October

2007 and closed on 4 February 2008.814
888 Mr Macdonald had indicated to the Expenditure Review Committee on 21

November 2007 that the DPI was undertaking a major EOI process (being
Watermark) which would raise sufficient funds to meet the DPI’s budgetary
commitments (namely a 2.5% efficiency dividend) and to raise further revenue
for the State of New South Wales generally. On that occasion Mr Macdonald
also indicated to the Expenditure Review Committee that the DPI expected to
release further large ELs to tender in 2008-2010.815
889 An Evaluation Committee comprising Mr Mullard, Mr Zanella, Mr Homes and

Mr Hughes assessed the seven EOI applications received and on 25 March
2008 issued a Ministerial Submission recommending that China Shenhua
Energy Company Ltd be awarded the Watermark EL. That company’s
application included an AFC of $389,300,000. In August 2008, Mr Macdonald
approved the recommendation.816
890 The AFC of $389,300,000 generated by the award of the Watermark EL

enabled the DPI to meet the efficiency dividend without redundancies or
reducing services.817
891 Mr Coutts gave the following evidence:
Well, the Minister had spoken on a number of occasions about his desire to
want to look at further opportunities for putting out areas for tender, given the
success of the Caroona and Watermark EOIs.818
892 By April 2008, over $400,000,000 had been raised in State revenue from the
AFCs for Caroona and Watermark.
893 The maps Ms Wiles created on 30 May 2008 for Ridgelands, Benelabri and
North Bylong-Mount Penny (to which I will refer presently) were to be, per Mr
Mullard’s instruction, for additional EOI processes roughly equivalent to
Caroona and Watermark.819
814
Exhibit G.
815
T 2358.
816
Exhibit G.
817
T 222-224, 677, 941, 2344-2345, 2357-2358, 2547.
818
T 347.
819
T 681.
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894 The accused submitted that I would be satisfied that the success of Watermark
was one of the reasons Mr Macdonald enquired about the possibility of the DPI
releasing EL 6676 to market when he had Mr Gibson make the follow-up
enquiries of the Department on 14 May 2008.820 That may be so, but the fact
remains that having regard to the enquiries on 9 May 2008 which preceded
that enquiry and in light of my analysis of all the evidence bearing upon the
question whether that conduct has been established as an act of misconduct, I
am satisfied that “but for” the improper purpose of advancing the private
interests of the Obeids, those enquiries, in the form in which they issued, would
not have been made.
Further events preceding the 4 June 2008 meeting

895 There is no evidence that Mr Macdonald raised directly with Mr Coutts the
prospect of the release of the Department’s holdings in the Bylong Valley under
EL 6676 in the context of the prospective release of large and small areas,
either before the trade mission or in the discussions with him which preceded
Mr Coutts’ sending the email to Mr Mullard on 1 June 2008 on their return. The
evidence does, however, support the proposition that Mr Macdonald raised that
issue with Mr Mullard prior to Mr Mullard directing Departmental officers on 30
May 2008, and over the days that followed, to identify potential large and small
areas for release. It is clear from Mr Mullard’s evidence that although he
interpreted the email from Mr Coutts on 1 June 2008 as reflecting the Minister’s
continuing keenness to release further areas because of the “very strong
industry interest at that time,”821 he also interpreted Mr Gibson’s email of 14
May 2008 as to the possibility “for the DPI to open its holdings for tender” 822 (a
request he understood was sent on Mr Macdonald’s behalf) as a reference to
the DPI’s holdings in the Bylong Valley under EL 6676; not as a request for a
“small, [medium] or Mount Penny [area] to be released as such” but what Mr
Mullard described as the DPI’s holdings in “the broader region”. 823
820
MFI 190 par 303; MFI 191 par 126; MFI 192 par 219.
821
T 676.
822
Exhibit A p 762.
823
T 851.
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896 Mr Mullard went on to explain that, in his understanding, that was why Wiles
Map 2 was prepared by Ms Wiles, namely to cover “the broader region” 824 (by
which I understand him to mean broader than the way Wiles Map 1 was
mapped), by depicting on Wiles Map 2 a greater portion of the area lying to the
west and the north of the icon designating the location of Mount Penny as
within a potential open cut coal resource. Mr Mullard gave evidence that his
general instruction to Ms Wiles was to look at “the large tender areas that
would be… roughly equivalent to the type of allocations that [the DPI] had
undertaken for [the] Caroona and Watermark [EOI processes]” 825 aware that
“the Bylong area was the large area that [the DPI] had in the Western
Coalfield”.826
897 In the accused’s closing submissions, significance is said to attach to Mr

Mullard’s evidence that although he might have given Ms Wiles the email of 14
May 2008 when giving her that task, she gave evidence that she did not
receive the email and did not recall its contents being brought to her attention.
898 For my part, I do not see that as carrying the significance contended for by the
accused. Ms Wiles gave evidence that she did recall being asked (although
she could not recall who asked her) to prepare any information she had with
regards to the areas of Ridgelands, “North Bylong/ Mount Penny” and
Benelabri with a view to seeing whether the DPI was going to undertake further
exploration as to the available coal resources in those areas or release them to
tender without undertaking further exploration. She gave evidence that, on 30
May 2008, she prepared Wiles Map 2 (and the other two maps relating to
Ridgelands and Benelabri) responsive to that request. She said that the
Ridgelands map (an area she identified as the “Ridgelands Potential Tender
Area”827), and the Benelabri map (an area which she identified as the
“Benelabri Application Area”828) were areas the Coal Advice section of the
Department had identified as requiring further exploration. Ms Wiles was
adamant she did not volunteer the potential coal resource area she identified
824
T 851.
825
T 681.
826
T 854.
827
Exhibit A p 835.
828
Exhibit A p 831.
5KIPGFD[#WUV.++
as North Bylong/Mount Penny in Wiles Map 2 but that she included it because
she was asked to identify information about it.829
899 I accept Mr Mullard’s evidence that neither before nor following the request
from Mr Coutts in his email of 1 June 2008 did he direct officers of the
Department that any particular area should be the focus of either locating
potential large release areas, the task he allocated to Ms Wiles, or the
identification of a list of small areas in the Western Coalfield referable to the
Coal Register that might be suitable for release, the task he allocated to Ms
Moloney. I also accept Mr Mullard’s evidence that the instructions he gave to
Ms Moloney (importantly, instructions he gave prior to receiving the email from
Mr Coutts on 1 June 2008) were to “[l]ook at the expressions of interest register
[the Coal Register] and see whether [there are] areas that [industry] have
nominated [an interest in] that we could put together as possible release
areas”.830
900 He gave evidence that if the industry had not indicated any interest in a
particular area that may mean the industry was not interested in attempting to
develop that coal resource and, for that reason, it may not be included on the
Coal Register. By contrast, if there were areas which had attracted industry
interest then those areas might be likely to attract strong competition for the
grant of an EL and attract regulation for that reason.
901 Mr Mullard was aware of the fact that the quantity or quality of information
available to the Department about the small areas was less of a factor in the
identification of small areas suitable for release. He also gave evidence that
there were quite limited small areas available for release across the State and
that those that were available were generally focused upon “the Western
Coalfield margin”.831
902 In the result, while I accept Mr Mullard’s evidence that he at no time “directed”
Ms Wiles to designate or create a coal release area in the North Bylong/Mount
Penny area at the request of the Minister (whether it be a large area or a small
area), I also accept Ms Wiles’ evidence that she was asked to collect and
829
T 2192.
830
T 679.
831
T 679.
5KIPGFD[#WUV.++
collate any information with respect to the areas of Ridgelands, “North

Bylong/Mount Penny” and Benelabri with a view to seeing whether the
Department was intending to undertake further exploration as to the available
coal resources in those areas or to release the areas to tender.
903 Having regard to the email correspondence between Ms Wiles and Mr Mullard
on 2 June 2008, including a Ministerial Briefing entitled “Potential Coal Tender
Areas” prepared by Ms Wiles on 30 May 2008 and forwarded to Mr Mullard on
2 June 2008832 which included reference to all three areas, I am satisfied that
the request which Ms Wiles responded to likely came from Mr Mullard, even if
not directly from him, in part at least, although perhaps only in a general sense,
as a result of the enquiries of the Department initiated by Mr Macdonald about
coal reserves in the North Bylong/Mount Penny on 9 May 2008 and the follow-
up enquiries on 14 May 2008, which remained unanswered before Mr
Macdonald left for overseas on 15 May 2008.
The Ministerial Briefing of 2 June 2008 which included Wiles Map 2 and Ms
Moloney’s six small areas
904 In the Ministerial Briefing prepared by Ms Wiles on 2 June 2008, “Ridgelands”
was identified under the subtitle “Potential Coal Tender Areas” 833 with
exploration and current drilling said to be sufficient to “reasonably delineate the
resource potential”. For that reason, no further exploration was recommended.
By contrast both the “North Bylong - Mt Penny Area” and “Benelabri” were
identified under a subheading as “Further Exploration currently pending and/or
recommended”.834
905 Ms Wiles described the “North Bylong - Mt Penny Area” in the following way:
Currently undertaking exploration in the western coalfields, with exploration

proposed in the area. Current estimates indicate open cut resources of ~200Mt
in the Wollar – North Bylong area.
Resources are contained within the Ulan Seam, raw ash ranges from 15-27%.
Immediately to the south of the area (Map attached shown in pink hatch 835)
there is an underground resource also in the Ulan seam.
832
833
Exhibit A p 825.
834
Exhibit A p 828.
835
This is a reference to the red hatched sideways S-shape on Wiles Map 2.
5KIPGFD[#WUV.++
This area should not be tendered until further exploration is completed in the
area.836
906 Ms Wiles described “Benelabri” in the following way:
Further Exploration is recommended for the Benelabri Area.

The area is not currently held under title by the Department.
An aero mag survey has recently been flown over the area (final results
pending). Further drilling is required to more accurately define the open cut
and underground resources. Resources are contained within the Hoskissons
and Melvilles seams. The area contains both open cut and underground
resources. (Emphasis added).837
907 Wiles Map 2, prepared on 30 May 2008, was also forwarded to Mr Mullard by
email on 2 June 2008 together with maps of Ridgelands and Benelabri. 838
The preparation of Wiles Map 2

908 Wiles Map 2839 was configured by Ms Wiles to identify, by a series of red cross-
hatching in an irregular sideways S-shape, a potential large open cut coal
resource area that might be suitable for release. The red cross-hatching
corresponded with an entry on the Legend to the left side of the map which
read “Potential Open cut Area”. That area was located entirely within EL 6676.
Ms Wiles explained that Authorisation 287 to the east was “under a current
mining title at that stage” and could not be encroached upon. 840 She also noted
further Authorisations “to the south”.841
909 The map also recorded the location of Mount Penny within EL 6676 and the
location of Mount Misery within the boundaries of the Goulburn River National
Park to the north of Mount Penny. It also showed the township of Bylong
located within Authorisation 287 to the southeast of Mount Penny.
836
Exhibit A p 828.
837
Exhibit A p 828.
838
Exhibit A pp 829, 831, 833 and 835.
839
Exhibit A p 823.
840
T 2178.
841
T 2178.
5KIPGFD[#WUV.++
Wiles Map 2
910 The irregular sideways S-shape, designating the potential open cut coal
resource reflected Ms Wiles’ synthesis of a range of data and other
5KIPGFD[#WUV.++
information, including borehole data, national park boundaries, the direction

and depth of underground coal seams and the boundaries of the existing
EL 6676 and Authorisation 287.842 Ms Wiles also took into consideration
information from the Dwyer Report843 which, at the time of publication in 2005,
identified coal resources in an area extending from the western edge of the
Hunter Valley in the east to Dunedoo in the west, and from the Liverpool
ranges in the north to Rylstone in the south. The identification of these
resources in the Dwyer Report was for planning purposes and to encourage
stakeholder interests in the further evaluation and exploitation of coal
resources.844
911 In the Dwyer report, an area described as the “Wollar-Bylong area” was
identified as extending for 17 kilometres from Bylong in the east to Wilpinjong
in the west, and 30 kilometres to the south. That area was also noted to
encompass several localities with the potential for “small to medium size open
cut mines” with three areas with “substantial open cut potential” identified in a
“PLAN” annexed to the report.845 Infrastructure was also assessed as
reasonably well-established.846 Finally, the Report also noted that what were
described as “Anglo Coal Auth 287 and 342” at “Bylong” had been extensively
drilled847 with an estimated coal resource of 450Mt reported in the 2004 Coal
Industry Profile.
912 Mr Mullard gave evidence that when he received Wiles Map 2 from Ms Wiles,
he understood it to depict an area of substantially low-cost open cut coal
associated with substantial underground coal that had been rendered in a two-
dimensional form by Ms Wiles using mapping software. He also understood
that in rendering it in that way that Ms Wiles had taken into account how the
topography of the area interrelated with the direction of the coal seams and
their depth beneath the surface of the valley floor. He also noted that the
potential open cut area identified by Ms Wiles in the sideways S-shape,
extended from the Wilpinjong mining lease in the west through to the
842
T 2178-2180.
843
Exhibit K.
844
Exhibit K pp 5-7.
845
Exhibit K, Annexure Plan 8, which depicts the area which became EL 6676 in 2006.
846
Exhibit K pp 6, 24-26.
847
Exhibit K p 18. The New South Wales Coal Industry Profile 2005 was tendered in the trial as Exhibit V.
5KIPGFD[#WUV.++
Authorisation 287 held by Anglo Coal P/L in the east being, as he described it,
“the unallocated area that existed between the two existing mining titles”. 848
913 Mr Mullard gave evidence that he understood Ms Wiles included Wiles Map 2
as a potential large release area for the following reason:
Because it was a large area. There were substantial coal resources within an
unallocated region. We had identified this as an area of future interest and we
were planning to undertake additional drilling. It's really because of the amount
of coal we believe potentially existed; we didn't know precisely. We needed to
do more work, but we knew there was coal within this region. We knew that
there were mining titles either side that had been explored and that showed
substantial coal resources, so based on the size of the area, we knew that this
had potential for a large coal allocation area.849
Ms Moloney’s identification of the “Six Small Areas”
914 On 30 May 2008 a document entitled “Small Areas in the Western Coalfield
which may be suitable for a Competitive Expression of Interest” was prepared
by Ms Moloney. That document was then provided to Mr Mullard by email on 2
June 2008.850 In that document six small areas were identified from the Coal
Register and all requiring formal titles identification. The areas varied in size
from 12 km² (Area 4) to 140 km² (Area 6). Ms Moloney described each of the
areas as “speculative” and having “no or limited existing coal exploration and
generally considered as remnant resources”.851 Described in that way, the
areas coincided with subcategory (iv) of future coal allocations nominated in
the Coal Allocation Guidelines of January 2008.852
The Ministerial Briefing of 3 June 2008

915 On 3 June 2008, in advance of the meeting with the Minister scheduled the
following day, the work that had been done by Ms Moloney and Ms Wiles over
previous days was consolidated in a Ministerial Briefing prepared by Mr Mullard
and forwarded to the Minister’s office.853 The Ministerial Briefing was headed
“Potential Coal Allocation Areas in Western NSW”.854 It identified the issue to
be addressed as “Potential coal resources which may be suitable for a
848
T 683. I have already noted but rejected Mr Neil and Mr Martin’s submission that “the gap” between the
two existing mines may have been described as the “Mount Penny-North Bylong area”.
849
T 684-685.
850
851
Exhibit A p 819.
852
853
854
Exhibit A p 867.
5KIPGFD[#WUV.++
Competitive Expression of Interest”.855 The background to that issue was

described in the Ministerial Briefing by Mr Mullard in the following way:
A number of coal allocation areas have been identified across the state. These
fall into two main groups:
1. Small areas in the Western Coalfield which would be suitable for
smaller industry players.
2. Large Expression of Interest areas which would be expected to
generate substantial return to the government856
916 The recommendation was, “The Minister notes this Brief”.857
917 Attachment A to the Ministerial Briefing included the work done by Ms Moloney.
The six small areas she identified were again described as “generally
considered [to be] remnant resources.”858 Mr Mullard gave evidence that
remnant resources were “leftover area[s] that had limited potential for major
stand-alone mine development.”859 Each of the six areas were identified by
number (cf. by name) and represented on a map by a shape of the area. The
shape was generated within the Department.
918 Attachment A also included Wiles Map 2 860 as one of three potential large coal
release areas together with Ridgelands in the Hunter Valley861 and Benelabri,
north west of Gunnedah.862
919 I note that Wiles Map 2 had by this time been renamed “North Bylong” and the
reference to “Mt Penny” was removed. It is the only version of Wiles Map 2 in
evidence in Exhibit A or Exhibit X (the maps seized during the execution of the
Locaway P/L search warrant) which bears that title. All other versions of Wiles
Map 2 which are in evidence bear the title “North Bylong – Mt Penny Area”.863
Nothing turns on that fact.
920 Wiles Map 2 was included in Attachment A to the Ministerial Briefing alongside
and associated with the following information (being different from the
855
Exhibit A p 867.
856
Exhibit A p 869.
857
Exhibit A p 869.
858
Exhibit A p 870.
859
T 733.
860
Exhibit A p 874.
861
Exhibit A p 873.
862
Exhibit A p 875.
863
Exhibit A pp 833, 899; Exhibit X.
5KIPGFD[#WUV.++
information Ms Wiles had attached to the map she had originally sent to Mr
Mullard):864
North Bylong
The Department has contracted to drill a number of exploration wells for the
area. The area is expected to contain substantial open cut resources close to
existing rail facilities.
Current estimates indicate open cut resources greater than 200Mt in the
Wollar – North Bylong area.
Resources are contained within the Ulan seam, raw ash ranges from 15-27%.
Further exploration is required to define a potential tender area.
921 Mr Mullard explained in his evidence that all three large areas identified by Ms
Wiles and included in Attachment A were also not, in his assessment, ready for
release as there was insufficient information available to the Department about
the size of the coal resources and that further exploratory drilling was required
to obtain that information.865 He gave evidence that he held that view for the
following reason:
… we didn’t really have enough information for these, being large areas, to be
released and that there was insufficient information on which we could have an
expectation that companies would wish to bid substantial additional financial
contribution. There really wasn't enough information about the nature and the
extent of the resource for companies to formulate a more detailed plan about
how they would extract it or where the resources were and the quality and
extent of those resources.
So for all of the larger areas, we always had a very significant database of
existing drilling or departmental drilling that formed the basis that companies
could actually put a tender in on.866
The 4 June 2008 meeting
922 At 11:15am on 4 June 2008, a meeting was convened in the Minister’s office at
Parliament House attended by Mr Macdonald, Mr Mullard, Dr Sheldrake and
Mr Gibson.867 The content of the 3 June 2008 Ministerial Briefing, and the
issues it raised, were discussed at that meeting. The meeting was not minuted.
923 Mr Mullard gave evidence that of the nine areas the subject of the Ministerial
Briefing (the six small areas and the three large areas), the Minister showed
particular interest in the Department identifying additional small areas in order
864
Exhibit A p 874.
865
T 668, 689, 973.
866
T 682.
867
Exhibit A p 851.
5KIPGFD[#WUV.++
to progress the prospect of an EOI process being released for those areas. As
far as the large areas were concerned, the Minister wanted to accelerate
exploration activities, including additional drilling.
924 At the end of the meeting it was resolved that the Department would prepare a
submission to Treasury to fund a drilling rig to facilitate the exploration of the
large areas.868 The need for further information concerning the small areas
identified by Ms Moloney did not arise in the meeting since, as noted above,
being small areas within subcategory (iv) under the Coal Allocation Guidelines,
they did not attract the same AFC as larger areas and, for that reason,
undertaking exploration activities in small areas was a lower priority for the
Department, not the least because it was uneconomic.869
925 There was no evidence adduced from either Mr Mullard or Mr Gibson that there
was any particular focus by the Minister on what had been renamed by that
point “North Bylong” on Wiles Map 2, or any discussion about or reference to
whether the information in the Ministerial Briefing relative to that map
addressed or satisfied the enquiries the Minister had made of the Department
on 14 May 2008 about the possibility of the DPI opening up its holdings under
EL 6676 for tender, following up on the enquiries he made on 9 May 2008
about coal reserves in the area of Mount Penny.
926 The fact that at the 4 June 2008 meeting the Minister did not focus on the
information in the Ministerial Briefing as it related to North Bylong, or what was
revealed in Wiles Map 2 as the potential large open cut coal resource area is
not, in my view, necessarily fatal to what occurred at that meeting being
capable of informing the question whether I am satisfied that the conspiracy
charged was in existence by that date.
927 The accused submitted to the contrary. They emphasised the fact that the
email Mr Gibson sent to Mr Mullard the following afternoon (5 June 2008) at
4:30pm where he requested “a full list of both big and small resource deposits
across [New South Wales] and the potential timeframes for when we may be
able to open them to a tender process”, together with the fact that Benelabri
868
This was the subject of a follow-up email from Dr Sheldrake to Mr Mullard on 5 June 2008 – Exhibit A p 883.
In due course a submission was drafted and forwarded to Treasury – Exhibit A pp 905-910, 1019 and 2319.
869
T 632, 679.
5KIPGFD[#WUV.++
was specifically nominated in that email as the coal release area to which
“absolute priority” was to be given in preparing that area “for competitive tender
by February 2009”,870 supported the accused’s case that the Minister’s
dealings with the Department at this time were entirely consistent with his
determination, and for sound policy reasons, to release a range of new areas,
across the State for coal exploration. The accused submitted this email and the
Minister’s policy agenda generally, was inconsistent with the Crown case that
“but for” the improper purpose of advancing the financial interests of the Obeid
family, Mr Macdonald would not have made enquiries of the Department about
coal resources in the area of Mount Penny or the potential for the Department
to release EL 6676 to tender (the conduct the subject of the first and second
acts of misconduct). I have already dealt with and disposed of that argument in
finding the first and second acts of misconduct established.
928 In its closing submissions, the Crown pointed to 4 June 2008 (being a
Parliamentary sitting day) as providing an opportunity for Mr Macdonald to
update Edward Obeid on the outcome of his meeting with Mr Mullard that
morning as it impacted on their common conspiratorial objective.
929 The Crown submitted that “update”, insofar as it related to the coal resource in
the Bylong Valley at or near Mount penny and including Cherrydale Park,
would have been to the effect that the DPI were directed by him to continue to
progress an EOI for “small/medium and large areas” and to prepare a
submission to Treasury to secure funding for a drilling to enable the necessary
exploration of “the potential large areas”.871
930 The Crown also invites focus on the telephone contact between the accused
later that afternoon. Moses Obeid called his father at 2:38pm; Edward Obeid
called Mr Macdonald at 4:29pm (for nine seconds); Edward Obeid contacted
Moses Obeid at 5:16pm and Mr Macdonald contacted Edward Obeid
8:45pm.872 Given the regularity of contact between Edward Obeid and Moses
Obeid, as father and son, before, during and after the period of the conspiracy,
and the regularity of contact between Edward Obeid and Mr Macdonald as
870
Exhibit A p 885.
871
MFI 181 par 210.
872
MFI 181 par 211; Exhibit U.
5KIPGFD[#WUV.++
Parliamentary colleagues, including on Parliamentary sitting days and at a time

when the electricity privatisation issue was still contentious, evidence of the
opportunity on 4 June 2008 to discuss the unfolding events as contended for
by the Crown, adds little weight to the question whether I am satisfied that the
conspiracy the Crown prosecutes was in existence at that time.
931 Of greater potential significance to that question is Mr Gibson’s email request

of Mr Mullard at 5:06pm on 4 June 2008 (following an email at 4:26pm
confirming 6 June 2008 as a follow-up meeting873) requesting “all the maps that
you showed Ian today blown up as big as you can and sent up tomorrow”. 874
Mr Gibson gave evidence that the Minister asked for a larger version of the
maps because the maps embedded in the Ministerial Briefing were A4 size, the
obvious inference being he wanted something bigger.875 The Crown pointed to
Mr Gibson’s request being sent following the nine second call between Edward
Obeid and Mr Macdonald at 4:29pm as suggesting a connection between the
two events. In the absence of any evidence of the content of the call and noting
it was a Parliamentary sitting day where the evidence shows regular telephone
contact between Mr Macdonald and Edward Obeid, the coincidence in timing of
the call and Mr Gibson’s email request is not overly compelling but, as with the
telephone contact summarised above, not relevant.
932 Mr Gibson gave evidence that the following day (5 June 2008) a large
cardboard cylinder containing the maps in a larger format was hand-delivered
Mr Macdonald’s Parliamentary office. Mr Gibson took receipt of it. 876 Mr Gibson
recalled that the maps were “certainly bigger than A4 … [he said] you could
unfurl them and they were quite a reasonable size”.877
933 The Crown does not advance the submission that the larger version of the
maps were requested in order that Mr Macdonald might provide Wiles Map 2,
in its larger paper format, to Edward Obeid or Moses Obeid or any other
member of the Obeid family. Rather, it is the Crown case that upon Mr
Macdonald’s receipt of the large formatted Wiles Map 2 (together with the large
873
Exhibit A p 877.
874
Exhibit A p 881.
875
T 2473.
876
Exhibit A p 885; T2473.
877
T 2474.
5KIPGFD[#WUV.++
maps of Ridgelands and Benelabri) in preparation for the follow-up meeting

scheduled for the following day, he took the opportunity at some convenient
time after that meeting and before 7 July 2008 (when Wiles Map 2 was
produced at the second Wentworth Hotel meeting with Mr Brook) to provide
Wiles Map 2 (and Wiles Map 1) to either Edward Obeid or Moses Obeid or a
member of the Obeid family. That conduct comprises the fourth act of
misconduct also relied upon by the Crown to prove, by inference, the existence
of the conspiracy and the participation of each of the accused in it.
Some preliminary observations with regard to the fourth act of misconduct

934 I will deal with the evidence relevant to proof of the fourth act of misconduct
later. Suffice to note at this time that there is no evidence in the Crown case as
to when or by what means or in what form either of Wiles Map 1 or Wiles Map
2 were provided by Mr Macdonald, or whether he arranged for them to be
provided in paper or in a digital format. After an amendment in the course of
the trial to the timeframe within which it was alleged that the fourth act of
misconduct was committed, the timeframe within which the Crown alleges both
maps came into the possession of the Obeids is said to be between 9 May
2008 (the date Wiles Map 1 was created and emailed to Mr Macdonald’s office
in the form of a Ministerial Briefing 878) and 9 July 2008 (the date when Wiles
Map 2 was produced to Mr Brook by Paul Obeid in Moses Obeid’s presence at
the second Wentworth Hotel meeting879). The Crown also relied upon the fact
that both maps (or copies of the maps) were located at commercial premises
following execution of a search warrant on 23 November 2011, being premises
to which each of the accused Edward Obeid and Moses Obeid (and other
family members including Paul Obeid and Gerard Obeid) had access. 880
935 Although as a matter of numerical ordering of the eight acts of misconduct the
Crown relied upon to prove the existence of the conspiracy, the fourth act of
misconduct precedes the fifth act of misconduct, because the fourth act of
misconduct is cast on a between dates basis, I propose to first consider the
evidence bearing upon proof of the fifth act of misconduct. Although that act of
878
Exhibit A p 757.
879
T 2815 and following.
880
R v Macdonald; R v Edward Obeid: R v Moses Obeid (No 13) [2020] NSWSC 1947.
5KIPGFD[#WUV.++
misconduct was also cast on a between dates basis, the Crown case, as
closed, was that the direction given by Mr Macdonald effectively to create the
Mount Penny Coal Release Area occurred at a meeting on 6 June 2008.
936 Again, suffice to note at this point in my deliberations as concerns the fourth
act of misconduct, that in the Crown’s submission I would be well satisfied that
Mr Macdonald caused Wiles Map 2 to be provided to either of the accused or a
member of their family some time after it was first provided to him as
embedded in the 3 June 2008 Ministerial Briefing, on 4 June 2008; or after it
was delivered to the DPI in a larger format on 5 June 2008; or after it was re-
sent by email at Mr Gibson’s request after the meeting on 6 June 2008.881 In
the Crown’s submission, even if I am unable to make any finding as to when
Wiles Map 2 was provided in breach of Mr Macdonald’s duty of confidentiality
or when or how Mr Macdonald caused it to be provided, I would be left in no
doubt that it was produced at the second Wentworth Hotel meeting with Mr
Brook on 7 July 2008, and that it was used at that meeting as a point of
reference to identify the location of Cherrydale Park and other properties
making up what Mr Brook was told was the landholders alliance and the area
which he was given to understand the Obeids believed might contain a
resource of up to 100Mt of high-grade thermal coal.882
937 In the Crown’s submission, if I am satisfied that Wiles Map 2 was produced at
the second Wentworth Hotel meeting on 7 July 2008, and I am also satisfied
that on 6 June 2008 Mr Macdonald directed the Department to “break up” the
available potential large open cut coal resource on Wiles Map 2 to create a
smaller area to the east so as to encompass the Obeids’ rural holdings at
Cherrydale Park, that would provide overwhelming support for the proposition,
fundamental to proof of the Crown case, that the conspiracy was in existence
by 6 June 2008 and, by logical and rational extension, by 9 May 2008 when Mr
Macdonald first initiated an enquiry of the DPI about coal reserves in the area
of Mount Penny. The Crown also submitted I will also be satisfied that Mr
Macdonald would not have made those enquiries of the Department via Mr
Gibson on 9 and 14 May 2008 and would not have given the direction to the
881
Exhibit A p 893.
882
T 2846, 2873, 3068-3069.
5KIPGFD[#WUV.++
Department through Mr Mullard on 6 June 2008 were it not for the improper
purpose alleged.
938 In short, the Crown submitted that Mr Macdonald’s dealings with Department in
May and June 2008 - the conduct particularised as the first, second and fifth
acts of misconduct (in each case constituting a breach of his duty of
impartiality), when considered together with the provision of Wiles Map 2 (the
conduct particularised as the fourth act misconduct in breach of his duty of
impartiality or confidentiality) I would be satisfied of the existence of conspiracy
alleged beyond reasonable doubt.
939 Applying that analysis, it also follows that if I am not satisfied that the fifth act of
misconduct as particularised is established, for whatever reason, the Crown
may fail to prove the existence of the conspiracy predating 9 May 2008, even
were I to find that Mr Macdonald provided or caused to be provided a copy of
Wiles Map 2, prior to it being produced on 7 July 2008 at the second
Wentworth Hotel meeting and used by Moses Obeid and Paul Obeid to
promote the prospect of a coal mining venture, and even were I to find that Mr
Macdonald’s provision of that map was an act of misconduct committed in
breach of his duty of confidentiality and/or impartiality.
The significance of the fifth act of misconduct to proof of the existence of the
conspiracy
940 As I have already sought to make clear in my deliberations to date, the first and
second acts of misconduct as particularised provided the critical additional
evidence enabling me to find as a fact and beyond reasonable doubt that Mr
Macdonald knew by 9 May 2008 (and probably earlier) that the Obeids owned
Cherrydale Park in the Bylong Valley situated near Mount Penny. Also, as I
have made clear, I am satisfied that the enquiries Mr Macdonald made of the
Department on 9 and 14 May 2008 were in breach of his duty of impartiality
and otherwise satisfy the “but for” test so as to constitute a substantive act of
misconduct in the legal sense. However, neither of those findings, nor a
combination of them, allowed me to find the further and critical fact that those
acts of misconduct were committed by Mr Macdonald in furtherance of the
specific conspiracy alleged.
5KIPGFD[#WUV.++
941 In my view, as I have endeavoured to make clear in my deliberations thus far,

the evidence relevant to establishing that Mr Macdonald’s enquiries of the
Department on 9 and 14 May 2008 constituted substantive breaches of his
Ministerial duty of impartiality leaves open the reasonable possibility that those
related acts of misconduct were, or might have been, preparatory to Mr
Macdonald entering into a conspiracy of the specific kind charged, even if he
made those enquiries at Edward Obeid’s invitation or even at his urging. The
evidence also leaves open the reasonable possibility that Mr Macdonald
committed those acts of misconduct unrelated to the conspiracy charged
altogether in the sense that there was at that time no “meeting of the minds”
that Mr Macdonald would commit misconduct in connection with the granting of
an EL at Mount Penny.
942 I am of the view that, notwithstanding the inferences I have drawn adverse to
Edward Obeid and Moses Obeid from the evidence of Mr Fitzhenry concerning
Moses Obeid’s eagerness to interest Mr Fitzhenry in the purchase of Coggan
Creek,883 there is a lack of any direct evidence as to what actions Moses Obeid
or Edward Obeid were taking or enquiries they were making proximate to 9
May 2008 to support the Crown’s submission that the first and second acts of
misconduct were committed by Mr Macdonald in furtherance of a conspiracy
already in existence by that date and in which each of the accused Edward
Obeid and Moses Obeid had intentionally agreed to participate.
943 I note and accept that the Crown submitted that I should not view the conduct
of Mr Macdonald vis a vis his dealings with the Department in May 2008 or in
June 2008 in an evidential vacuum. The Crown submitted that although the
eight acts of misconduct are particularised in the Revised Statement of Crown
Particulars in chronological order (because on the Crown case they were
committed from time to time in the process of the conspiracy being executed
after its formation by 9 May 2008 and before it was fully executed by 31
January 2009), that does not, and should not, oblige the Crown to prove that
each individual act of misconduct was committed by Mr Macdonald referable
solely to the evidence referable to proof of that event.
883
See earlier at par 870.
5KIPGFD[#WUV.++
944 The Crown submitted, and I accept, that each successive act of alleged
misconduct has the capacity, as a matter of rational analysis in a circumstantial
evidence case, to inform the question whether a particular act of misconduct is
established by reference to the evidence directly bearing upon whether it
constitutes misconduct in the legal sense, by being considered together with
the events which give it context, including the alleged acts of misconduct which
precede or follow it. As a matter of legal reasoning I accept the correctness of
that approach and direct myself accordingly. I have already directed myself that
the Crown is not obliged to prove each individual act of misconduct to any
given standard of proof.
945 In this case, however, while I accept that the Crown is not obliged to satisfy me
that each of the eight particularised acts of misconduct were committed
pursuant to the conspiracy charged, because I do need to find that the
conspiracy was in existence prior to 9 May 2008,884 if I am not satisfied that the
first and second acts of misconduct were committed in furtherance of the
conspiracy, and there is a deficit in the evidence to otherwise prove that the
conspiracy was in existence at that time referable to the other acts of
misconduct I might find proved, the substantive acts of misconduct which I am
satisfied were committed by Mr Macdonald on 9 and 14 May 2008 will be of
little weight, if relevant at all, in proof of the Crown case.
946 I remain of the settled view I expressed earlier885 and which I repeat now, that
even if I am satisfied that Mr Macdonald committed multiple acts of wilful
misconduct in his various dealings with the accused (and/or members of their
family) in breach of his duty of confidentiality (or impartiality) after his dealings
with the Department in May/June 2008 including, in particular, were I satisfied
he provided Wiles Map 2 and the list of companies to be invited to participate in
the EOI process (both documents being used by Moses Obeid in his dealings
with Mr Brook and the subject of the fourth and seventh acts of misconduct)
after that date, I must consider very carefully whether that finding informs the
question whether Mr Macdonald’s earlier dealings with the Department in
884
See pars 311-326.
885
Par 325.
5KIPGFD[#WUV.++
May/June 2008 were overt acts in furtherance of a conspiracy that was in

existence at that time.
947 The need to exercise caution before drawing an inference adverse to the
accused as concerns the time at which the conspiracy was forged, obliges me
to give careful consideration to the case advanced in closing submissions by
each of the accused, to the effect that Mr Macdonald’s dealings with the
Department in May 2008 and/or June 2008 are capable of rational explanation
inconsistent with the criminal purpose which the Crown attributes to him as a
participant in the conspiracy alleged.
948 It is for that reason that in determining whether the Crown has proved its case
beyond reasonable doubt, a disciplined and scrupulous approach to the
question whether Mr Macdonald misconducted himself as particularised in the
fifth act of misconduct in furtherance of the conspiracy, is critical.
949 That is in large part because the Crown does not seek to prosecute a case that
the conspiracy was entered into after the Mount Penny Coal Release Area was
designated by the Department in June 2008 such as might have put Mr
Macdonald’s provision of Wiles Map 2 and its production at the meeting with Mr
Brook starkly in the frame of conspiratorial criminality. If the Crown does not
make out its case that the Mount Penny Coal Release Area was created at the
direction of Mr Macdonald (the subject of the fifth act of misconduct), then
despite my gravest suspicions that there was a conspiracy of the specific kind
framed in the indictment in existence as at 9 May 2008, unless proof of the
fourth, sixth, seventh, eighth or ninth acts of misconduct (or any one or more of
them) is capable of supplying additional proof of that fact, I may be left with a
reasonable doubt as to the guilt of any of the accused of the offence charged.
The fifth act of misconduct

950 The fifth alleged act of misconduct was particularised as follows:
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.
5KIPGFD[#WUV.++

951 On 6 June 2008, a further meeting was convened by Mr Macdonald and
attended by Mr Mullard and Mr Gibson.
952 What occurred at the meeting was the subject of very considerable contest in
the trial and the focus of detailed closing submissions by the parties. Both of
the witnesses to that meeting, Mr Mullard and Mr Gibson, were challenged as
to the accuracy of their recall of what was discussed at the meeting, including,
in particular, what was said about or done at the meeting with Wiles Map 2.
953 To a limited but nonetheless emphatic degree, Mr Gibson’s evidence as to

what Mr Macdonald said and did in relation to Wiles Map 2 was the subject of a
specific challenge to the extent that I am invited by each of the accused to give
his evidence on that issue no weight at all in considering whether the Crown
has established the fifth act of misconduct.
954 The challenge to Mr Mullard’s evidence was mounted by the Crown by

applying for and being granted leave under s 38 of the Evidence Act to cross-
examine him in respect of a number of what were said to be, and what I was
satisfied were, inconsistent statements made by him in the course of giving
evidence in the public inquiry conducted by ICAC in November 2012 and
witness statements he made after those proceedings in 2014 and 2019. 886
955 Mr Gibson was cross-examined by counsel for the accused on the basis that
significant aspects of his evidence as to what occurred in the course of the 6
June 2008 meeting were given for the first time, and without forewarning to the
Crown, in the course of his evidence in chief, despite him having given
evidence in the ICAC proceeding in November 2012 and having prepared his
witness statements signed after that date. The accused submitted that Mr
Gibson’s attempts to explain that state of affairs were not persuasive and that
critical features of his evidence were wholly implausible for that reason.
Mr Gibson’s evidence in summary

956 So far as is directly relevant to proof of the fifth act of misconduct, Mr Gibson
gave evidence that at the 6 June 2008 meeting, and referable to Wiles Map 2,
886
There was a deal of controversy as to the terms upon which leave should be granted. In the result, leave
was granted as set out at T 894-897.
5KIPGFD[#WUV.++
Mr Macdonald directed that what became the Mount Penny Coal Release Area
should be created by requesting (of the Department through Mr Mullard) that
“the boundary” (or “the shape”) of what had been designated as the “North
Bylong/ Mount Penny” large coal resource on Wiles Map 2 be “changed”.
957 Mr Gibson gave evidence that 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. 887
958 Mr Gibson gave evidence that Mr Macdonald then drew onto Wiles Map 2 a
basic sketch, in outline, as to where the new coal release area should be.888 In
cross-examination Mr Gibson said that his recollection was that Mr Macdonald
was not asking whether the Department could “split” the North Bylong/ Mount
Penny area into a small to medium resource, he was asking for a “change to
the shape” of the area represented on Wiles Map 2 that was “more reflective of
the resources in that area”.889
959 In circumstances where the Crown was taken by surprise by this evidence,
whether Mr Gibson should be permitted to be invited by the Crown to replicate
the area marked-up on Wiles Map 2 was the subject of objection and
competing submissions. In the result, Mr Gibson was unable to replicate the
markings he saw Mr Macdonald apply to the map 890 without, as he described it,
“reference to other materials”.891 What those other materials might be was not
further explored by the Crown. Mr Gibson did give evidence in chief, however,
that the outline or basic sketch he saw Mr Macdonald apply to the map was
“very similar” to what was ultimately released as what Mr Gibson described as
the “Bylong map” that was released as part of the EOI process. 892 In closing
submissions, the Crown invited me to view Mr Whiddon’s map as representing
what Mr Gibson was intending to convey by that evidence.893 That map is
reproduced at par 552 above.
887
T 2476.
888
T 2477.
889
T 2476.
890
He was unsure as to whether the large formatted Wiles Map 2 that was supplied to the Minister's office on
5 June 2008 was marked or the version embedded in the Briefing Note of 4 June 2008.
891
T 2483.
892
T 2483.
893
MFI 181 par 242.
5KIPGFD[#WUV.++
960 Mr Gibson also gave evidence that what he described as the “basic sketch”
was a “work in process [sic]” between the Minister’s office and the Department
for several weeks after the 6 June 2008 meeting.894
Mr Mullard’s evidence in summary

961 When first asked by the Crown what was discussed at the meeting, Mr Mullard
said that the Minister made it clear that he wanted the Department to designate
small coal release areas additional to the six areas that had been identified by
Ms Moloney and discussed at the 4 June 2008 meeting two days earlier. Mr
Mullard gave evidence that although he suggested to Mr Macdonald that
“would be difficult”, and although in that connection Mr Macdonald did refer to
the large potential resource in the Bylong Valley on Wiles Map 2, he did not
specify any particular area on that map as the source of an additional small
area; nor did he define any boundaries of a small area referable to the
sideways S-shape on Wiles Map 2.895 Mr Mullard gave evidence that although
it was his view at that time (as it had been for some time) that breaking up
large areas might result in them being less attractive to industry, he did not
express that view to the Minister at the meeting.896 Instead, he told the Minister
that “we [the Department] would look at it”.897
962 In cross-examination by Mr Martin, Mr Mullard confirmed that his recollection of

the meeting was that he told Mr Macdonald that “I’ll see what we [the
Department] can do”. He confirmed that he did not tell Mr Macdonald that the
Department would “definitely” be able to split the Bylong area to create a
smaller resource area but that “we [the Department] had to go back and look at
it”. Mr Mullard confirmed that he did not express any negative opinion to Mr
Macdonald as to the potential for a small area to be excised. He gave the
following evidence:
Q. You did not, at this meeting on 6 June or later, raise any opposition on
behalf of the department in respect of breaking up the larger North Bylong
area or any other large area into a medium area?
A. Well, I should say the only one we were considering was North Bylong. I
would have objected to the other large areas [Benelabri and Ridgelands] but
894
T 2483.
895
T 701.
896
T 703.
897
T 702.
5KIPGFD[#WUV.++
that topic never came up, and I didn't raise any objections to looking at
breaking up the Mount Penny-Bylong area.
Q. Yes, more generally, you didn't mount any opposition at that 6 June
meeting, or at all, to the Minister's desire to release medium or smaller areas?
A. No.
HER HONOUR
Q. Do I understand, Mr Mullard, that you would have objected to the other
large areas being split or broken up; was that because it was the department's
view that those two other areas should be preserved as a large potential coal
resource for future direct allocation?
A. Yes.898
963 The Crown returned to this aspect of Mr Mullard evidence later the course of
his evidence in chief and again before leave was given to cross-examine, by
focusing his attention on Wiles Map 2 and the designation of Mount Penny on
Wiles Map 2 by the icon Ms Wiles applied when preparing the map. He gave
evidence that when the Minister questioned whether a large area might be
“split up” to make a smaller area, they were both looking at the large version of
Wiles Map 2 (one of the three larger maps the Minister had requested be
provided and that the Department had provided the previous day). He said the
Minister made no reference to Mount Penny and did not gesture to any
particular area on the map.899
964 I asked the following questions:
Q. Can I have your assistance with this. When he said “can’t we split this up to
make a smaller area?”, looking at the document on the screen, you
understood him to refer to, or he in fact referred you to that S-shape on its
side, that crosshatching?
A. Yes. Well, not so much the crosshatching because that’s just the open-cut
resources. There would have been other resources underground. But it was in
reference to that map.
Q. And when he said “can't we split this area up?”, what did you understand
him to mean when he said “this area”?
A. He was referring to the whole area and what he was saying was “can’t we
create a smaller area from this large area?” This was the only large release
area that we were planning for the Western Coalfield so it was the only area
that we could potentially create a small area on. He didn't do it by referencing
Mount Penny but, logically, the only area that we could have created it out of
that was in the eastern part.
Q. And when you say “logically”, are you deploying your expertise as a
geologist and a skilled coal resource man, or are you saying that that was a
matter of the logical place to split because it was discussed or some version of
898
T 1006-1007.
899
T 842-843.
5KIPGFD[#WUV.++
that?
A. No, I’m employing my own expertise.
Q. Right, so he says “can’t we split it up?”; you may not have said anything out
loud but, in your own mind, you're thinking, well, if that is going to be possible
at all, it is going to be a split that will section off some part of the eastern area
designated by some boundary to be fixed at some later time?
A. That’s correct.900
965 The Crown then asked following questions:
Q. When the Minister asked whether a split-up was possible, was it apparent
to you at that point, as you sat there in the meeting, that the logical way to do
so was to make an area from the eastern end of that red crosshatched S?
A. I wouldn’t say I was necessarily convinced but I thought that would be the
area. It certainly would - it would either be the eastern side or the western side;
it wouldn't be in the middle. But my view was, just knowing the resource, that
the eastern side would likely be the area, but I wasn't going to rely on
my - purely my - it had to be looked at by the geologist and Julie.
Q. Did you tell Minister Macdonald that was your preliminary view?
A. No. No. The only thing I communicated was that we’d look to see whether
we could create a small area. My concern was, and why I didn’t give a
definitive answer, I didn't want to compromise a potential large tender area by
cutting a piece out of it so we’d end up with, effectively, a resource that was
not going to be attractive as a larger area which would generate the significant
returns to Government.
So that was my main concern. Could we create - and that was my instructions
to Julie when I went back. I said, “Can you look at preserving a larger resource
that we could do as a large tender area while creating a small area?” So if
Julie had come back to me and said “no, we can’t”, I would have gone back to
the Minister.901
966 After leave under s 38 of the Evidence Act was granted,902 Mr Mullard was
taken to his statement of 20 May 2014. He confirmed his signature and initials
on each page and the standard terms of the jurat, confirming his appreciation
of the need for the statement to be accurate and truthful to the best of his
knowledge and belief.
967 He was then taken to paragraph 12 of the statement which concerned the
6 June 2008 meeting and which reads, in part, as follows:
At this meeting [the meeting of 6 June 2008] 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
900
T 843.
901
T 844-5.
902
There was a deal of controversy as to the terms upon which leave should be granted. In the result, leave
was granted as set out at T 894-897.
5KIPGFD[#WUV.++
consideration at that time. He referred to this as ‘the Mount Penny area’.903

(Emphasis added.)
968 The Crown then asked Mr Mullard whether what was recorded in the statement
“accurately records what the Minister said at the meeting”. His response was
as follows:
The problem I’ve got … is that you’re now 12 years after the event … When I
wrote this, this is six years after the event. So my recollection today is I can’t
specifically recall that, but I may have recalled that at that meeting, if you know
what I mean, when I wrote that statement. It is very difficult for me to - there is
a degree of certainty, I think, that is being put on what was said at the meeting
that in reality doesn’t exist.904
969 It was clear after cross-examination by Ms Francis that it is an overstatement
for Mr Mullard to describe any part of his 2014 statement as having been
written by him (as to which see later).
970 Mr Mullard went on to explain that he meant by the “degree of certainty being
put on what was said at the meeting”, that there was “a degree of
interpretation” being applied, creating the additional problem that there was
what he described as “a degree of lack of clarity about exactly what Mount
Penny is, namely whether it is a specific area or the whole area”. 905 It is unclear
whether Mr Mullard was intending to convey that Mr Macdonald was unclear
about what “the Mount Penny area” was, or whether he was attributing that
“lack of clarity” and/or “interpretation” to the person who drafted the statement
for his consideration.
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.906 Mr Mullard ultimately
volunteered that the Minister “definitely” told him to “make a smaller area” and
that it was “very likely” in the east.907 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
903
T 900.
904
T 901.
905
T 843.
906
T 901-902.
907
T 901.
5KIPGFD[#WUV.++
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.
972 Mr Mullard also gave evidence in chief before being cross-examined by the
Crown with leave, that after the 6 June meeting he spoke to Ms Moloney.
Although he had no detailed recollection of the conversation with her, his best
recollection was he asked her “whether or not we [the Department] could look
at creating a small area [less than 100Mt] out of the Bylong area” making sure,
“where possible”, to “preserve a potential larger tender area” so as not to
“compromise the larger area as a future large tender area”.908 As noted earlier,
it was his evidence that he appreciated that there was “really only one way” to
create that smaller area out of the Bylong area in circumstances where the
“eastern area” was bounded by the existing titles,909 such that “if you were
creating a smaller tender area without compromising the larger resource it
would be in the eastern side”.910 In cross-examination by Mr Martin, Mr Mullard
confirmed that the feasibility of creating a coal exploration area at North
Bylong/Mount Penny, taking into account the area to the east, was something
he was likely to have discussed with Ms Moloney when he asked her to look at
creating a small to medium resource less than 100Mt.911 Mr Mullard also
confirmed in cross-examination that in his view the area ultimately designated
as the Mount Penny EL 7406 was consistent with the value of the resource to
the west being preserved.912
973 After the cross-examination with leave, the Crown took Mr Mullard to
paragraph 23 of his 2014 statement which read:
When I returned to the Maitland office, I spoke to Ms Moloney, and possibly

Ms Wiles, about the Minister’s instructions relating to North Bylong.
It was Ms Moloney that carried out the work to create a coal exploration
licence area in the eastern side of North Bylong.913
(Emphasis added.)
908
T 703.
909
Clearly a reference to Authorisation 287, Authorisation 342 and EL 7091.
910
T 703.
911
T 1008.
912
T 1007.
913
T 902.
5KIPGFD[#WUV.++
974 Mr Mullard confirmed that “the work” he referred to Ms Moloney doing in his
2014 statement was reflected in her email to him on 16 June 2008 where “Area
7” was designated by her as “Mount Penny” on an updated map of the six
small areas for possible allocation that she had prepared on 30 May 2008 and
which had been the subject of discussion at the meetings with Mr Macdonald
on 4 and 6 June 2008 by the inclusion of it as an additional area. Mr Mullard
was not invited by the Crown to comment on the use of the word “instructions”
and whether that was intended to convey a “direction” to create a small area to
the east or an instruction in the form of a request that the Department look to
see whether that was feasible.
975 Precisely how the fixed boundaries of the Mount Penny Coal Release Area
came to be designated by Mr Schiavo will be considered later. 914 The “work”
done by Ms Moloney is significant, for present purposes, by the shape file
attributed to “Area 7 Mount Penny” in her email to Mr Mullard on 16 June 2008,
and its coincidence with the precise boundaries of the Mount Penny Coal
Release Area mapped by Mr Schiavo as “Diagram X” for inclusion as one of
the eleven coal release areas included in the EOI process.
976 Mr Mullard was then taken by the Crown to some evidence he gave in the
ICAC proceedings on 21 November 2012 where he was asked the following
(leading) question by the Commissioner:
Well, I’m still trying to find out how it came about that this tenement [the Mount
Penny coal release area] was created in the way it was created… It’s really
important and you are the person who can tell us? … 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.915
977 The Crown suggested that Mr Mullard gave this evidence because, “as set out
in your [May 2012] statement, Mr Macdonald told you to make a smaller area in
the east and he referred to this as ‘the Mount Penny area’”.916 Mr Mullard
responded to that question as follows:
914
915
T 908-909.
916
T 909.
5KIPGFD[#WUV.++
Well, as I said, I accept that my recollection of that time, at the public hearing,
is better than it is today. I mean, the critical thing is he may have referred to
the Mount Penny area but what I am certain of is he didn’t define the
boundaries.917
978 Mr Mullard again gave evidence in answer to the Crown’s question that his
recollection in November 2012 was better than his recollection eight years later
when giving evidence at the trial. He emphasised however was that whilst the
Minister may have referred to the Mount Penny area (Mr Mullard certainly
recalled the discussion about the breaking up of the “Bylong/Mount Penny”
area into a smaller area) Mr Mullard was certain that the Minister “did not
define the boundaries” [of the allocation area]. That was a matter for the
Department’s expertise.918 Furthermore, Mr Mullard was clear that in making
that request, the Minister did not “specify any particular area or define any
boundaries”.919
979 The Crown asked no further leading questions under the grant of leave.
980 In cross-examination by Mr Martin, Mr Mullard gave the following evidence:
Q. Just finally, going back to the ultimate point of the 6 June meeting, the
Minister didn’t direct you in the 6 June meeting that an area be created that
included the area Mount Penny, did he?
A. I can’t recall any direction as such. He certainly said, or strongly suggested,
that we look at creating a small area, yes, but not to the extent of saying “you
create a Mount Penny area”, no.
Q. He didn’t direct you in that way at all?
A. No.
Q. By that, I’m saying at any stage; he didn’t direct you to create an area that
included the area Mount Penny outside of the 6 June--
A. Not using those words, no.
Q. Ultimately the Minister accepted the Department’s conclusion as to the
boundaries created for Mount Penny and all the other areas?
A. Yes, the Minister never directed us to say “this must be the boundary” or
“this is where the boundaries be”. All the boundaries were actually developed
by the Department.920
981 There can be no question that what Mr Mullard described as the Minister’s
“strong suggestion” that the Department “look at creating a small area” in the
above passage was what became “Area 7” and that it was excised from the
917
T 909.
918
T 909.
919
T 701.
920
T 1010-1011.
5KIPGFD[#WUV.++
area depicted on Wiles Map 2 by Ms Moloney. Mr Mullard gave evidence that

he instructed Ms Moloney, inter alia, to “preserve a potential larger tender area
[from Wiles Map 2]” because he did not want to “compromise the larger area as
a future large tender area”.921 Mr Mullard gave evidence that he did not convey
his view to the Minister at the 6 June 2008 meeting that “breaking up the large
areas might result in the large areas being less attractive… to the industry if we
put it out for tender”,922 by that point in time, he had discussed with the Minister
“in general terms, that large areas attracted greater return”.923
The Crown’s position on how the Court should resolve conflict in the evidence
982 In addressing what I regard as a clear conflict between the evidence of Mr
Gibson and Mr Mullard as to what was discussed at the 6 June 2008 meeting,
in particular whether the Minister gave any directions as to where the
boundaries of a new coal release area were to be excised from Wiles Map 2,
the Crown submitted:
… [W]hile it is clear that Mr Mullard was reluctant to implicate his former boss,
his evidence [as to what occurred the meeting] was ultimately and relevantly
consistent with that of Mr Gibson.924
983 If by that submission the Crown is to be taken to mean that I should approach
an assessment of Mr Mullard’s evidence on the basis that it reveals a
deliberate “reluctance” on his part to implicate Mr Macdonald, in the sense that
Mr Mullard’s evidence that he has an imperfect recall in 2020 of what was said
at the meeting in 2008 concerning a smaller coal allocation area being created
form the potential coal resource in Wiles Map 2 was a deliberate ruse, I reject
that submission. It was not put to Mr Mullard, as it should have been, in
compliance with the principle of fairness comprehended by the rule in Browne v
Dunn,925 if it were a submission intended by the Crown to undermine his
credibility.
984 On the other hand, if the Crown is to be understood as submitting that in strict
adherence to his affirmation Mr Mullard was “reluctant” to “implicate” Mr
Macdonald, in the sense that he was being careful and considered in his
921
T 703.
922
T 702.
923
T 703.
924
MFI 181 par 247.
925
(1893) 6 R 67 (HL).
5KIPGFD[#WUV.++
evidence lest a ready and unqualified acceptance by him of propositions

suggested to him by the Crown by leading questions asked with leave might
suggest a recall of the course of the 6 June 2008 meeting in conflict with what
remains his genuine recall of those events, then the Crown’s submission is well
placed.
985 While there is a certain ambiguity in the Crown’s submission, I favour the view
that it was not advanced to suggest that Mr Mullard was other than a truthful
witness who endeavoured at all times during the course of his lengthy
evidence, including under cross-examination with leave, to give accurate
evidence in accordance in what he could genuinely and accurately recall of
events (including, for present purposes, the 6 June 2008 meeting) in strict
accordance with his obligations as a witness.
986 What remains of the Crown’s submission is whether, in my assessment, it is

open to me to determine whether the fifth act of misconduct is established on
the basis that Mr Mullard’s evidence was ”ultimately and relevantly consistent”
with Mr Gibson’s evidence, such that I can and should, as the Crown submitted
I would, accept Mr Gibson’s evidence that he saw Mr Macdonald marking up
Wiles Map 2 so as to designate for the Department the smaller coal release
area he wanted included in the EOI process 926 and that the marking up Mr
Gibson saw applied to the map reflected the boundaries of the Mount Penny
Coal Release Area over which the Mount Penny EL was ultimately granted,
and reject Mr Mullard’s evidence that no boundaries were designated by Mr
Macdonald at the 6 June 2008 meeting and no direction given for any particular
area on Wiles Map 2 to be the subject of an additional small coal release area.
987 The Crown also submitted that although Mr Gibson has not previously given
any evidence of Mr Macdonald marking up Wiles Map 2, he has consistently
given an account in his previous statements and in his evidence before ICAC
that at a meeting convened by the Minister, the Minister wanted or expressed a
desire for Wiles Map 2 to be “changed” to be included in the EOI process.927
926
MFI 181 par 258.
927
MFI 181 par 245; T 2565, 2567, 2569, 2578.
5KIPGFD[#WUV.++
988 In the Crown’s submission, Mr Gibson gave an honest and rational explanation
for the detail inherent in his revived memory of the 6 June 2008 meeting, in
essence because the process of him giving evidence at trial was less stressful
than his evidence at ICAC and because he was being stepped through his
evidence in chronological order in the course of the Crown adducing evidence
from him which assisted his recall. He also gave evidence that the so-called “2
things mate” email”928 assisted his memory. He described that email in his
evidence as an “aide memoire”.
989 Mr Gibson gave a lengthy explanation as to significance of the “2 things mate”

email he sent at 3:05pm on 6 June 2008 (a few hours after the meeting) in
assisting him to remember the Minister marking up Wiles Map 2. That email
read:
… can you please get the latest Bylong Valley (Mt Penny) map emailed up on
Tues.929
990 Mr Gibson gave evidence that Mr Macdonald asked him to get another “clean
version” of the map (Wiles Map 2) which is why he sent the email.
And if I may take a moment to explain how this email relates to my answer.
Look, I guess over the last few days, having been brought back to this period
in time, you know, going through my evidence and so forth, I guess you could
say this email for me has been an aide-mémoire. It certainly has assisted my
memory because I was recalling as to why in this particular case I am asking
for another copy of the - effectively, the Mount Penny map on the Friday. And
it occurred to me, or it was recalled to me, that we received this, I guess, first
version of it, this map for this area, on Tuesday 3 June in anticipation of a
meeting with Mr Mullard on the 4th which we subsequently had.
Following that meeting on the 4th, I asked Mr Mullard for larger versions of the
maps that were shown to us at that meeting, which he subsequently provided
on the 5th, Thursday the 5th.
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 this same map. I'm not asking for Benelabri or
Ridgelands or any of the others; I'm just asking for this one. And that's my
recollection of it.
928
Exhibit A p 893.
929
Exhibit A p 893.
5KIPGFD[#WUV.++
And I think, further, when we see this area again later in the month, it's
beginning to look like its final version and not the versions that are here on this
map because the requests had been made here on this date in this meeting
and that is my recollection. So you can put it to me as many times as you like
and this will - this is my answer.930
991 At 3:25pm that same afternoon Mr Mullard emailed to Mr Munnings, as
attachments, copies of each of the three large area maps, including Wiles Map
2, together with Ms Moloney’s map of the six areas.931 At 3:59pm Mr Munnings
forwarded those documents to Mr Gibson.932
992 In the Crown’s submission, Mr Macdonald’s “specific direction” to the

Department to create a new small area for release which he “sketched” on to
Wiles Map 2 which just happened, as a matter of coincidence, to precisely
overlayea Cherrydale Park (which on the Crown case, and which I accept, Mr
Macdonald knew by 6 June 2008 was a rural property owned by the Obeid
family in the Bylong Valley near Mount Penny) is “wholly incredible”. 933 It is
clear that submission was based upon an acceptance of Mr Gibson’s evidence.
993 The Crown submitted, again in very substantial reliance upon Mr Gibson’s
evidence, that the area sketched or marked-up by Mr Macdonald on Wiles Map
2, as representing where he directed the boundary be changed, was not due to
a greater concentration of resources in the area (the justification he is said to
have expressed when directing that the boundary be changed), there being no
evidence adduced in the trial to support that proposition as an objective fact.
994 The Crown also emphasised the timing of the Minister’s request for the
creation of a small release area from Wiles Map 2. In the Crown’s
submission,934 after the 4 June 2008 meeting in which Mr Mullard had made it
clear that the Department’s view was that none of the three proposed large
areas identified by Ms Wiles were suitable for release because further
exploration was required, there was both time and opportunity for Mr
Macdonald to discuss with his co-conspirators what the Crown described as “a
solution” (which I take to mean “a solution” to what was perceived as an
930
T 2558-2559.
931
932
933
MFI 181 par 259.
934
MFI 181 par 267.
5KIPGFD[#WUV.++
obstacle to the creation of an EL at Mount Penny encompassing all of the

sideways S-shape) by creating a smaller area to the east but encompassing
Cherrydale Park as a “small” coal release area to be included in a forthcoming
EOI for an open competitive tender for an EL and without delay.
995 Finally, in support of its case that the fifth act of misconduct is established, the
Crown emphasised the significance of Mr Macdonald giving no equivalent
direction that a small area or areas be exercised out of Ridgelands or
Benelabri, as might be expected were he generally desirous of creating small
coal release areas from available coal resources at that time, rather than
preserving the potential large coal release areas represented in each of
Ridgelands, Benelabri and North Bylong/ Mount Penny for the potential and
very significant financial return to the State via AFCs payable also under an
EOI process for the release of large areas, with the additional benefit to the
DPI in meeting the efficiency dividend.
996 The Crown went on to submit that even though, as it conceded elsewhere in its
submissions, there were sound public policy reasons for Mr Macdonald to urge
the release of large and small to medium coal exploration areas, I would be
satisfied that the Mount Penny Coal Release Area would not have been
created at Mr Macdonald’s direction or under his instruction on 6 June 2008
were it not for improper purpose of advancing the private interests of the Obeid
family or their associates.
The position of the accused

997 The accused submitted the Crown’s submission set out at par 982 and
following above cannot be sustained. The accused submitted I cannot, and
should not, avoid dealing with the consequences of the diametrically divergent
evidence of the only two witnesses to the 6 June 2008 meeting.
998 I propose to take that approach.
999 I am unable to treat the evidence of Mr Mullard as “relevantly consistent” 935

with Mr Gibson’s evidence as the Crown submitted I should. Mr Gibson
adhered to his evidence, given for the first time in October 2020, that he saw
935
MFI 181 par 258.
5KIPGFD[#WUV.++
the Minister mark-up Wiles Map 2 in June 2008 in a way that conforms with
what was ultimately fixed as the boundaries to the Mount Penny Coal Release
Area (as was expressly adopted by the Crown in closing arguments) 936 while
Mr Mullard adhered to his evidence that the Minister neither directed that a
smaller area be “split” from the larger potential coal resource in Wiles Map 2
nor designated its boundaries.
1000 In my view, addressing the conflict in their evidence is unavoidable.
1001 The accused submitted that because the Crown must be taken to have elected
not to recall Mr Mullard or Ms Moloney, I have not been afforded the
opportunity to hear further from Mr Mullard as to whether he has any recall of
Mr Macdonald marking up Wiles Map 2 at the meeting, including whether the
so-called marked-up map was something he took from the meeting as the
template from which the Mount Penny Coal Release Area was ultimately
designated by officers of his Department.937 The accused submitted that being
the case, I could not treat Mr Gibson’s account as “truthful, reliable and
ultimately compelling” as contended for by the Crown.
1002 Independently of what the accused regarded as the failure of the Crown to
recall relevant witnesses who could meaningfully address the existence of the
marked-up map (more accurately, that the Crown made no application for
leave to recall Mr Mullard or Ms Moloney), the accused submitted, for other
reasons, that I should reject, as wholly unreliable, Mr Gibson’s evidence of
seeing Mr Macdonald sketch an outline of the “split off” smaller area, in effect
to formalise the direction the Minister was giving to Mr Mullard for the
Department to execute.
1003 Mr Martin submitted that Mr Gibson’s “new” and unforeshadowed evidence

about the sketch on Wiles Map 2 “lacks credit and cogency” and cannot be
given weight given that it was not tested by presenting it to Mr Mullard “to either
confirm or deny its veracity and reliability”.938 Mr Martin further submitted that
936
T 3646 and following.
937
In the Crown’s closing submissions (MFI 181 par 243) the Crown drew attention to Mr Gibson’s evidence
that it was possible in accordance with the usual course of events when somethi ng has been “marked-up” by
the Minister that a Departmental officer might take the “marked-up” version away with him.
938
T 3756-7.
5KIPGFD[#WUV.++
Mr Gibson’s evidence that the shape sketched by Mr Macdonald better

reflected the resources in the Mount Penny area was “implausible and lacked
logic or internal consistency” because there is no evidence Mr Macdonald has
any geological knowledge of any resources in that area.939
1004 Ms Francis likewise emphasised that the Crown did not recall Mr Mullard to
address Mr Gibson’s evidence as to a sketch drawn by Mr Macdonald on a
copy of Wiles Map 2. In her submission, Mr Mullard’s account of the “content
and context of [the 6 June 2008] meeting is inconsistent with the likelihood of
Macdonald sketching upon a map”.940
1005 Mr Neil submitted that not only was this evidence as to a critical aspect of the
meeting given for the first time and without advance notice but, when analysed
referable to other evidence in the trial, including evidence in the Crown case,
Mr Gibson’s evidence is both “implausible and unrealistic”. 941
1006 In support of that submission, Mr Neil drew attention to the fact that in contrast
to the maps of Ridgelands and Benelabri, Wiles Map 2 did not depict the
“tenement boundary” of a known coal resource as described by Mr Gibson.
Instead, it depicted a potential coal resource marked by a cross hatching in a
sideways S-shape. He submitted that in circumstances where Mr Mullard was
at the 6 June 2008 meeting to provide his expert advice as a geologist, Mr
Gibson’s evidence that Mr Macdonald directed Mr Mullard that there be a
change to the “tenement boundary” (where there was none)… in order to be “to
be more reflective of the resources in that area”942 (where the map did not
differentiate between the east, the west or the centre of the sideways S-shape
and where, as Mr Martin submitted, there is no evidence Mr Macdonald had
any geological knowledge of where resources lay within EL 6676) did not
withstand critical scrutiny.
1007 The challenge to the reliability of Mr Gibson’s account of the 6 June 2008
meeting mounted by the accused also focused on the fact that he could not
recall whether the markings were made on Wiles Map 2 in the form embedded
939
MFI 190 par 189.
940
MFI 191 p 25.
941
MFI 192 p 140.
942
T 2476.
5KIPGFD[#WUV.++
in the Ministerial Briefing of 2 June 2008 or the large formatted map hand
delivered on 5 June 2008. Additionally, it was pointed out that Mr Gibson was
unable to give any evidence as to what happened to the marked-up map
(despite the significance of the markings apparently reflecting a Ministerial
direction) beyond suggesting the possibility that Mr Mullard took the map with
him,943 again underscoring the significance of the Crown not recalling either Mr
Mullard or Ms Moloney.
1008 Furthermore, after being taken in cross-examination to his evidence before

ICAC in November 2012, when he was asked whether there was any
discussion in his presence as to whether a particular part of the “shaded area
on [Wiles Map 2] should form the Mount Penny tenement” Mr Gibson
responded, “Not that I recall”.944 He also gave the following evidence when
asked by the Commissioner whether “the Mount Penny area as ultimately
drawn [clearly a reference to the fixed boundaries of the Mount Penny coal
release area drawn by the Department] could have fitted anywhere along that
S [clearly a reference to Wiles Map 2]”:
Yes, Commissioner it could have. I’m not a geologist. I saw the map and I saw
the original map which is this one. Mr Macdonald indicated he would like it to
be changed. That was my recollection of it.945
1009 In the result, the accused submitted that I should give Mr Gibson’s evidence of
seeing Wiles Map 2 marked-up to designate the boundaries of what ultimately
became the Mount Penny Coal Release Area no weight at all in considering
whether the Crown has established that Mr Macdonald’s conduct at the 6 June
2008 meeting constituted an act of misconduct in the relevant sense.
1010 Mr Neil submitted that even were I to treat Mr Macdonald’s conduct at that
meeting as capable of being regarded as an act of misconduct in the legal
sense (which was not conceded), Mr Gibson’s evidence was deserving of no
weight on the related and important question whether the Crown has
established Mr Macdonald’s dealings with the Department on that occasion
was an act of misconduct committed in furtherance of the conspiracy charged.
943
T 2562.
944
T 2566.
945
T 2567.
5KIPGFD[#WUV.++
1011 In substance, each of the accused submitted that in preference to the evidence
of Mr Gibson, I would accept as both truthful and reliable Mr Mullard’s evidence
that he was not directed by Mr Macdonald to create what ultimately became
the Mount Penny Coal Release Area at the 6 June 2008 meeting, or at any
other time, and that he was not directed, again either at the 6 June 2008
meeting or at any other time, as to where the boundaries of any small coal
release area should be positioned relative to the potential large coal resource
marked by the red cross-hatched sideways S-shape on Wiles Map 2. They
submitted that was the position Mr Mullard adhered to in his evidence even
after leave was granted to the Crown to cross-examine him on his prior
inconsistent statements.
1012 Mr Martin submitted that Mr Gibson was an observer rather than an active
participant in the 6 June 2008 meeting, and despite an understandable loss of
perfect recall of the course of the meeting, Mr Mullard’s evidence was detailed,
cogent and plausible.
1013 The accused submitted that while I would find that Mr Mullard was asked by Mr
Macdonald to see whether it was possible to excise an additional smaller area
for release, and that Wiles Map 2 was the reference point for that enquiry, I
would also find as a fact that the Mount Penny Coal Release Area was
ultimately designated by the Department as Area 7 (and later Diagram X) with
the expertise of the Department’s highly skilled geologists and cartographers
without them being given any template to map the boundaries of that area.
1014 The accused also emphasised that in circumstances where Wiles Map 2 was
the only one of the three large areas identified by Ms Wiles where it was
feasible or practical, for a wide range of policy reasons, to excise or create a
smaller coal release area, the significance in the Minister’s focus on Wiles Map
2 (namely, as an act of misconduct in furtherance of the conspiracy in the
sense that “but for” the improper purpose alleged, he would not have applied
that focus) for which the Crown contends is not justified.
5KIPGFD[#WUV.++
Is there common ground between the evidence of Mr Gibson and Mr Mullard as

concerns the 6 June 2008 meeting?
1015 Despite the significant and material differences in the evidence of Mr Gibson
and Mr Mullard as the only two witnesses who attended the 6 June 2008
meeting, the purpose of the 6 June 2008 meeting; the course of the meeting;
what the Minister expected the Department would do after the meeting; and
what the Department actually did as a consequence of what occurred at the
meeting were not in issue.
1016 Whether that evidence is probative of the Crown case in another question. At
the outset, I am satisfied that both Mr Mullard and Mr Gibson understood the
meeting to be a follow-up meeting from the 4 June 2008 meeting. That fact,
together with the Minister’s request for larger copies of the North Bylong/Mount
Penny, Ridgelands and Benelabri in preparation for that meeting, set the tone
of the meeting and what was discussed.
1017 I am also satisfied that in his discussions with Mr Mullard, Mr Macdonald

expressed a desire for additional small areas to be identified by the
Department for inclusion in the EOI process (that is, additional to the six areas
that Ms Moloney had identified) and that Mr Macdonald raised the possibility
(to express it at its most neutral) that the three large areas identified by Ms
Wiles might be a source for additional small areas (that is, by the Department
marking out of an area under 100Mt as per the Coal Allocation Guidelines). I
also accept that of the three large area maps that had been sent to the
Minister’s office on 5 June 2008, Wiles Map 2 was the focus of those
discussions.
1018 I also accept that whatever the precise request Mr Mullard made of Ms
Moloney after the meeting, it was sufficient for her to utilise a shape file and to
apply the label “Area 7 Mount Penny” to it by 16 June 2008 when she emailed
the “updated” (seven) small areas map to Mr Mullard.946 Ms Moloney gave
evidence that Area 7 was the next in the sequence of the six small areas
identified by her on 30 May 2008. As to the shape file attributed to Area 7, she
said she did not draw it and she had no specific memory of who did or who
946
Exhibit A p 949.
5KIPGFD[#WUV.++
provided it to her. She gave evidence that she did not have computer skills to
be able to compile the shape file. She believed the shape file came from “Coal
Advice”.947
1019 There was no evidence in the Crown case as to who from that Department
compiled the shape file of “Area 7 Mount Penny” between 6 June 2008 and 16
June 2008 when it was emailed to Mr Mullard, or the information the compiler
or compilers might have used in that process. I am, however, satisfied that the
shape file attributed to Area 7 is, on a broad visual comparison, coincident with
Diagram X prepared later by Mr Schiavo to designate the fixed boundaries of
what became the Mount Penny Coal Release Area.
1020 Mr Schiavo described the shape he attributed to Diagram X as a “polygon”. He

gave the following evidence:
Q. And what process did you follow to create [Diagram X] and, in particular,
the red lines which set out the proposed tender area?
A. Okay, so I would have either have been given a diagram or coordinates. To
prepare that, I'd have to create a shapefile and within the shapefile - a
shapefile may consist of five to seven files and within those five to seven files
you would have a database file which lists attributes regarding that shape and
you would have a projection file. And I am not sure what the other files do, but
they work together to create this polygon. That's called a polygon and you can
place attributes on that polygon for the future. Once it is granted, you have got
it sitting there already with - you can put attributes to it straightaway.948
1021 I am further satisfied that there is common ground between the Crown and the
accused that Mr Gibson was the only witness who gave evidence of a marked-
up map, and that it has not been produced nor referred to in any
correspondence between the Minister’s office and the Department at any time
after 6 June 2008. I note that it is not the subject of any email correspondence
between the Minister’s office and the Department in the immediate aftermath of
the 6 June 2008 meeting, despite Mr Gibson’s evidence earlier referred to, that
what he described as the “basic sketch” was a “work in process” (sic) between
the Minister’s office and the Department for several weeks after the 6 June
2008 meeting.949
947
T 2266, 2272.
948
T 534.
949
T 2483.
5KIPGFD[#WUV.++
1022 What remains contentious between the Crown and the accused is whether I
am satisfied that what Ms Moloney did in the process of including “Area 7
Mount Penny” in her updated map of small areas emailed to the Minister’s
office on 16 June 2008 was done in accordance with a direction from Mr
Macdonald at the 6 June 2008 meeting that it be created.
1023 In reliance upon Mr Gibson’s evidence, the Crown contended the directions Mr
Macdonald gave were accompanied by him sketching the boundaries of the
additional small area on Wiles Map 2. The alternate construction available on
the evidence and advanced by the accused is that, at Mr Mullard’s request and
referable to Wiles Map 2, “Area 7 Mount Penny” was designated by
Departmental officers applying their skill and expertise to locate an available
coal resource (under 100Mt) suitable for release as a small coal release area,
in accordance with the Department responding to the Minister’s request for
small coal release areas to be released to tender as part of his policy agenda.
1024 I am unable to accept the Crown’s submission that the evidence of Mr Mullard
and Mr Gibson was “relevantly or meaningfully consistent”. Neither am I able to
accept that, on a fair reading of the Crown’s closing submissions, the Crown
did otherwise than to invite me to accept Mr Gibson as both a truthful and
reliable witness who gave a compelling account of the 6 June 2008 meeting,
despite the fact that his evidence that Mr Macdonald marked-up Wiles Map 2 to
designate the area where he wanted a boundary change (coincident, as the
Crown submitted, with what ultimately became the Mount Penny Coal Release
Area) was given for first time at the trial in 2020 and not mentioned in his
previous signed statements or in his evidence before ICAC.
1025 Although the Crown did not expressly abandon Mr Mullard’s evidence,
preferring (as I indicated above) to describe it as reflecting “a reluctance” on his
part to implicate Mr Macdonald, the Crown did not seek advance its case in
proof of the fifth act of misconduct by relying on Mr Mullard’s evidence other
than in one limited respect. That arose in the context of Mr Mullard’s evidence
in cross-examination that he did not get the impression that Mr Macdonald was
“super interested in Mount Penny” and that the only time he had any recall
(albeit qualified) of the Minister mentioning Mount Penny was when he asked
5KIPGFD[#WUV.++
that the Bylong area be broken up.950 The Crown submitted that I would find Mr
Macdonald’s apparent attitude of indifference was to be expected in light of
what I would be otherwise satisfied was the care he took to downplay his
interest in Mount Penny, whilst covertly playing his part in furthering the object
of the conspiracy.951
1026 Without intending any undue criticism of the Crown, that submission does not
assist me in resolving what occurred at the 6 June 2008 meeting or whether,
on the basis of the factual findings I am able make of those events, they
establish an act of misconduct committed by Mr Macdonald in furtherance of
the conspiracy.
1027 Neither, in my view, did the Crown satisfactorily address those aspects of Mr
Mullard’s evidence which the accused relied upon as undermining proof of that
fact. Those additional aspects include the following. Despite each of the three
large areas identified by Ms Wiles being potentially highly sought after by
foreign investors in China and South Korea and by “the big four” Australian-
based mining companies952 in a competitive open tender process, and despite
the Department’s advice that further exploration was required before they
would recommend any of those areas be released to tender (advice which the
Minister accepted, albeit with some disappointment),953 there remained sound
reasons of policy and pragmatism not to defer the release of a smaller area
excised from what Ms Wiles had designated as a potential open cut area in
Wiles Map 2, in contrast to Benelabri and Ridgelands where a distinct coal
release area was designated. The accused also emphasised that by the
Minister inviting, requesting or suggesting that the Department should identify
an additional small area in the North Bylong/Mount Penny area, the appetite of
small companies for an entre into the market would be addressed.
1028 The accused also emphasised that once the potential open cut area identified
by Ms Wiles on Wiles Map 2 had been reduced in size by the excision of a
tenement to the east, no further exploration of that area would need to be
950
T 1042.
951
MFI 181 par 253.
952
BHP, Rio Tinto, Xstrata and Anglo American.
953
T 1003-1004.
5KIPGFD[#WUV.++
undertaken at the Department’s expense. At the same time, the balance of the
potentially more valuable coal resource to the west would be preserved for a
large release in a competitive tender process in the future. As Mr Neil pointed
out,954 even when drilling rigs were available, Benelabri was to be the next
large area for a prioritised release with Ridgelands to follow. Mr Neil submitted
that breaking up the North Bylong/Mount Penny area was a practical
compromise which allowed the State to obtain at least some revenue by way of
an additional financial contribution from its release as a small area in a closed
EOI process, accepting that it would be less than the revenue which might be
generated from the release of large areas in accordance with the Coal
Allocation Guidelines while satisfying the other policy initiatives of diversifying
entre to the market by smaller coal mining companies.
1029 Mr Neil also submitted that were Mr Macdonald to have directed Mr Mullard to
create a smaller area from the potential open cut area depicted on Wiles Map 2
referable to boundaries he specified, that would have been noted or recorded
by Mr Mullard and reported to Mr Coutts, particularly where Mr Mullard was
acting in Mr Coutts’ absence in June 2008, and it was not.
1030 I have given careful consideration to the evidence and the submissions of
counsel concerning the evidence bearing upon the events of the 6 June 2008
meeting.
1031 There was what I regard as a sustained challenge to the reliability of a central
component of Mr Gibson’s evidence concerning the marking up of Wiles Map
2.
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:
(1) The 6 June 2008 meeting was convened at the Minister’s request as a
follow-up meeting from the meeting on 4 June 2008.
(2) Mr Macdonald’s request, via Mr Gibson, for larger versions of the three
large areas mapped by Ms Wiles (including Wiles Map 2) after the
meeting on 4 June 2008 was in order to discuss the potential for the
release of those areas to tender or, in the alternative, to discuss with the
954
MFI 192 p 142; T 970, 973, 988, 379.
5KIPGFD[#WUV.++
Department whether one or more of them could be broken up to be

released as a small to medium coal release area under category (iv) of
the Coal Allocation Guidelines. These issues were discussed by a flow
of ideas with the respective positions of the Minister and the Department
articulated.955
(3) The dominant focus at the 6 June 2008 meeting was the Minister’s
keenness to have the Department identify additional small to medium
coal release areas.
(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”956 the Department look at creating, or
excising, a small coal release area from the sideways S-shape on Wiles
Map 2 to the east.
(5) In circumstances where I am satisfied that Mr Macdonald knew the
Obeids owned Cherrydale Park situated near Mount Penny at this time,
I am satisfied that when he referred to a smaller area “to the east”, he
also referred to or made mention of “Mount Penny”.
(6) I am further satisfied that when Mr Macdonald referred to Mount Penny
in that context (knowing that the Obeids owned Cherrydale Park
situated near Mount Penny), he must be taken to have had the
expectation that if a small coal release area were to be excised by the
Department from the sideways S-shape on Wiles Map 2 to the east, it
would encompass Cherrydale Park.
(7) However, I am not satisfied, having regard to all the evidence that is
capable of bearing relevantly on whether the Crown has proved the fifth
act of misconduct, as particularised, that Mr Macdonald “directed or
instructed” Mr Mullard to have the Department create the boundaries of
that smaller area to the east. That is, I am not satisfied that on 6 June
2008 Mr Macdonald directed or instructed that what became the Mount
Penny Coal Release Area (included as Area 7 in the EOI process
released publicly on 9 September 2008) should be created or
designated by the Department. Neither am I satisfied that Mr Macdonald
sketched a basic outline of the boundaries of that area on Wiles Map 2
as an effective template for the Department to follow in creating that
smaller area.
1033 The Crown particularised its case in proof of the fifth act of misconduct by
alleging that in his capacity as Minister for Mineral Resources Mr Macdonald
directed the Department to excise the eastern portion of the potential open cut
area depicted on Wiles Map 2 to create a smaller area to the east in wilful
breach of his duty of impartiality because he knew the Obeids owned property
955
T 1003.
956
T 1010.
5KIPGFD[#WUV.++
in that area, and that he acted in that way in furtherance of the conspiracy
alleged and for the improper purpose alleged.
1034 I have already noted that the Crown reframed its case in the course of the trial
by amending some of the particulars of Mr Macdonald’s acts of misconduct and
abandoning any reliance on the third act of misconduct altogether. 957 I also
note that the Crown’s application to amend the particulars of its case was
made after Mr Gibson’s evidence. However, in seeking leave to amend the
particulars of its case in some respects, the Crown adhered to the way in which
it particularised the fifth act of misconduct by maintaining the case that I would
find, as a fact, that between 4 and 6 June 2008, as Minister for Mineral
Resources, Mr Macdonald “directed” the DPI, in effect, to create a coal release
area that encompassed a property he knew was owned by Edward Obeid (or
his family), as an act of misconduct committed by him in wilful breach of his
duty of impartiality and for the improper purpose alleged. This was the same
case the Crown advanced in its closing submissions, by that time emboldened
by the evidence of Mr Gibson upon which it placed great reliance.
1035 In those circumstances, the Crown must be taken to have appreciated that
proof of the fifth of misconduct (as particularised) was not only important to
proof of its case generally, but to proof of the specific case it prosecuted at trial,
namely that the conspiracy as framed in the indictment was forged before 9
May 2008, being a conspiracy in which each of the accused agreed to
intentionally participate by that date.958
1036 The Crown must also be taken to have accepted that if the evidence went no
higher than establishing that the Minister made a “strong suggestion” that the
Department “look to the possibility” of creating a small area in the eastern
portion of the potential open cut resource depicted on Wiles Map 2 at the
6 June 2008 meeting, that may not be sufficient to constitute a breach of Mr
Macdonald’s duty of impartiality, thereby undermining its case that Mr
Macdonald’s engagement with Mr Mullard on 6 June 2008, which resulted in
the creation of the Mount Penny Coal Release Area, was an act of misconduct
wilfully committed by him in furtherance of the conspiracy. The Crown might
957
958
T 3623, 3632.
5KIPGFD[#WUV.++
also have considered that if the evidence went no higher than Mr Macdonald
strongly suggesting (or requesting) that the DPI look at the possibility of
creating a smaller area from Wiles Map 2, that may not have been sufficient to
satisfy the “but for” test in the circumstances prevailing in June 2008, where the
Crown accepted that the Minister was generally committed to diversifying entry
to coal exploration in New South Wales by opening up additional small to
medium areas for coal exploration.
1037 In closing arguments, responsive to a question I raised as to whether, were the

fifth act of misconduct to be understood by me as a “direction” or a “request” on
the part of the Minister, either would constitute an act of misconduct given Mr
Macdonald’s knowledge of the Obeids’ ownership of Cherrydale Park, the
Crown submitted that “the distinction between ‘direction’ and ‘request’ … is a
nuance without difference”.959
1038 Were I to accept that submission, advanced only in response to a question

asked by me, I would be effectively permitting the Crown to broaden its case in
respect of the fifth act of misconduct in closing arguments. I am not prepared to
take that approach. Neither do I accept the Crown’s submission that the
difference between a Ministerial direction and request is immaterial when the
Crown did not elect to particularise its case in that way or to address what it
describes as that “nuance without difference” until I raised it.
1039 The Crown must be confined to proving the case it particularised, being the
case each of the accused have sought to meet throughout the trial and in
closing submissions.
1040 For those reasons, I accept and direct myself accordingly that it is not sufficient
for the Crown to prove that Mr Macdonald requested or suggested that the DPI
excise the eastern portion of the potential open cut area depicted in Wiles Map
2 in proof of the fifth act of misconduct. The fifth act of misconduct is
particularised as a direction by the Minister and it must be proved by the Crown
as such.
959
T 3648.
5KIPGFD[#WUV.++
Is the fifth act of misconduct proved?

1041 In all the circumstances, and despite the findings of fact I have made arising
out of the 6 June 2008 meeting as detailed above, I am not satisfied that the
Crown has established the fifth act of misconduct, as particularised.
1042 There is a question as to whether the same fate attaches to the Crown’s
submission that at the meeting on 6 June 2008 Mr Macdonald deliberately
“slipped” the Mount Penny Coal Release Area into an otherwise
uncontroversial EOI process for the release of small to medium areas in order
to avoid the scrutiny of arranging for its release in a standalone process for the
granting of an EL. Although that submission was advanced to support proof of
what was said by the Crown to be Mr Macdonald’s improper purpose in
“directing” that the Mount Penny Coal Release Area be created,960 it may still
have some currency in proof of the Crown case in the event that I am satisfied
that the fourth and the sixth to ninth acts of misconduct are established.
1043 That said, because I am not satisfied that the fifth act of misconduct, as
particularised, is made out, Mr Macdonald’s purpose or motivation in making
what I have found was a “strong suggestion” or “request” that the Department
should look to see whether a smaller area could be excised from the area
depicted on Wiles Map 2 (the question posed by the application of the “but for”
test) does not strictly arise.
1044 It must also follow that the Crown’s submission that Mr Macdonald would not
have “directed” the inclusion of Cherrydale Park in a new coal release area
without the knowledge and approval of Edward Obeid does not carry the same
probative force it might otherwise have carried in proof of the existence of the
conspiracy charged and Edward Obeid’s participation in that conspiracy were
the fifth act of misconduct established. However, again depending on what
view I take of the evidence in the Crown case in proof of the remaining acts of
misconduct, that submission may still be persuasive.
1045 In closing its case, the Crown advanced no submission as to the approach I
should take were I to give no weight to Mr Gibson’s evidence, or what
approach I might take if, for other reasons, I was not persuaded that Mr
960
MFI 181 pars 268-270.
5KIPGFD[#WUV.++
Macdonald “directed” Mr Mullard to create a smaller coal release area in the

east from Wiles Map 2. The Crown did not advance the submission that Mr
Macdonald might have deliberately couched what he intended to be a
“direction”, and what he intended Mr Mullard would understand was a
“direction”, in the form of a “request” or a “strong suggestion” in the expectation
that a more nuanced “direction” would as likely result in the outcome he sought
to achieve (as a co-conspirator), without issuing a formal Ministerial direction
which Mr Mullard might have queried, or which he might have recorded in
writing and conveyed to Departmental officers as a “direction” from the
Minister.
Other factual findings arising from the 4 June 2008 and 6 June 2008 meetings
1046 It is important at this time to emphasise, again, that it is not for me as the
tribunal of fact to seek to model the Crown case or the Crown’s submissions in
a way that might allow for me to find that a conspiracy of the specific scope and
specific object as framed in the indictment is proved beyond reasonable doubt.
I am obliged to consider the sufficiency of the evidence the Crown relied upon
in proof of its case. I am not, however, strictly bound by the way in which the
Crown invites me to use the facts I find established by the evidence for that
purpose.
1047 Despite the failure of the Crown to prove the fifth act of misconduct with the
resultant diminution in the persuasive force of aspects of its submitted position
that the guilt of the accused has been proved beyond reasonable doubt, I am
satisfied as a fact that after the 4 and 6 June 2008 meetings Mr Macdonald told
Edward Obeid, and probably Moses Obeid, of the real possibility that
Cherrydale Park would be incorporated in a new coal release area over which
an EL might ultimately be granted, on the basis that I have found that, by that
time, Mr Macdonald had the reasonable expectation that, by applying the skill
and expertise of a range of its officers, the Department would excise from
Wiles Map 2 a smaller area for release to the east, proximate to Mount Penny,
which would inevitably include Cherrydale Park.
1048 That finding is informed by, but not limited to, the fact that I have found the
Shepherd fact proved beyond reasonable doubt. It is also informed by the
5KIPGFD[#WUV.++
nature of the relationship Mr Macdonald shared with Edward Obeid as a close

political ally, and the friendship he had with his son, Moses Obeid, coupled with
the fact that, in reasoning to the conclusion that the Shepherd fact was proved
beyond reasonable doubt and that the first and second acts of misconduct
were established, I was satisfied that Mr Macdonald was not averse to seeking
out and providing information of various kinds to Edward Obeid on request,
even if, as occurred in May 2008, he did so in wilful breach of his duty of
impartiality.
Despite the fifth act of misconduct not being proved, is the evidence otherwise
capable of establishing proof of the existence of the conspiracy beyond
reasonable doubt?
1049 Before undertaking an analysis of what the evidence proves, or is capable of
proving, about the circumstances in which the Mount Penny Coal Release Area
was created and its boundaries fixed by the DPI after the 6 June 2008 meeting,
and before undertaking an analysis of what steps were taken by Moses Obeid
(and other members of his family) to explore the potential to expand their rural
holdings in the Bylong Valley after that date equipped with the knowledge Mr
Macdonald shared with them following the 4 and 6 June 2008 meetings, it is
necessary to return to the question that remained outstanding when I reasoned
to the conclusion that the first and second acts of misconduct, as
particularised, were established.
1050 That question concerned whether, after I had considered the events that
followed the commission of those two related acts of misconduct (leading to
and including the meeting of 6 June 2008 when the fifth act of misconduct was
alleged to have been committed) I was able to reason to the conclusion that
the first and second acts of misconduct were committed in furtherance of a
conspiracy that existed as at 9 May 2008.
1051 I accept that the evidence establishes that Mr Macdonald’s dealings with the
Department in May and June 2008 (and earlier) were, at a general level, co-
ordinate with, and focused upon, the policy imperative of releasing additional
areas for coal exploration. However, I have also found that Mr Macdonald’s
dealings with the Department in May 2008, which involved the gathering of
information about coal reserves specifically in the area of Mount Penny, were
5KIPGFD[#WUV.++
acts of wilful misconduct in the legal sense. I have also found that although Mr
Macdonald’s dealings with the Department in the first week of June 2008 did
not constitute acts of misconduct in the legal sense, they did involve Mr
Macdonald strongly suggesting that the Department assess the viability of
creating a new area for coal exploration situated near Mount Penny and
releasing it as part of an EOI process for the granting of an EL, knowing of the
Obeids’ ownership of Cherrydale Park, and that Mr Macdonald did share that
information with at least Edward Obeid, and likely Moses Obeid, doubtless with
a view to it being used by them to their advantage.
1052 Those findings alone give rise to a very powerful inference that Mr Macdonald
shared that information in furtherance of a conspiracy of the scope and object
alleged in the indictment, and a conspiracy that was in existence at 9 May
2008. I am not, however, prepared at this point in my deliberations to draw that
inference. It is of some significance that the Crown does not allege that the
sharing of the information with the Obeids about the inclusion of, or the likely
inclusion of, Cherrydale Park in a new coal release area after 6 June 2008 was
a wilful breach of Mr Macdonald’s duty of confidentiality, or that it was
otherwise an act of misconduct from which the existence of the conspiracy
might be inferred. That being the case, the parties did not address that
scenario in submissions. The highest the Crown puts its case in closing
submissions was the general submission that during multiple meetings and
telephone calls with each of Edward Obeid and Moses Obeid between
September 2007 and January 2009, “there is a strong inference as to
communication regarding the object of the conspiracy” from which Mr
Macdonald’s participation in the conspiracy should be inferred.961
1053 Additionally, in my assessment, the evidence that I have considered and

reviewed thus far in my deliberations is not sufficient to discount the
reasonable possibility that in committing the first and second acts of
misconduct in May 2008 Mr Macdonald was merely responding to a request for
information from Edward Obeid as a political ally and Parliamentary colleague
and his volunteering of further information following the 4 and 6 June 2008
meetings was an extension of his willingness to bestow favours of that kind on
961
MFI 181 par 28(k) and (l).
5KIPGFD[#WUV.++
Edward Obeid and on Moses Obeid as a person with whom he had a

friendship.
1054 In those circumstances, proof of some or all of the remaining five acts of
misconduct, as particularised, will likely prove critical to proof of the Crown
case. The remaining acts of misconduct (being the fourth and the sixth to the
ninth acts of misconduct inclusive) do not allege any misconduct in Mr
Macdonald’s ongoing dealings with the DPI as the EOI process for the release
of the eleven small to medium areas (including Mount Penny as Area 7) was
progressing, a process which commenced with a meeting convened by Mr
Macdonald on 17 June 2008 and culminated in a meeting on 9 September
2008 when the EOI Information Package was approved by him for public
release.962
1055 In contrast to the first, second and fifth acts of misconduct, each of the
remaining five acts of misconduct allege that Mr Macdonald provided the
Obeids with various forms of confidential information, or he caused that
information to be provided to them, in breach of his duties and obligations of
impartiality and confidentiality. Aside from the fourth act of misconduct as
particularised, the sixth to ninth acts of misconduct effectively allege the
particular specie of the confidential information the subject of those
particularised acts of misconduct, was provided by Mr Macdonald to allow the
Obeids to exploit the commercial potential of the Mount Penny Coal Release
Area having been designated by the Department pending its official inclusion in
the EOI process for the grant of an EL (being the sixth, seventh and eighth acts
of misconduct) with the ninth act of misconduct committed after the EOI
process had launched. The particulars in each of the sixth to ninth acts of
misconduct also allege a breach of Mr Macdonald’s duty of impartiality by
providing the same information knowing that the Obeid family owned property
in a location proposed to be included in the EOI (that is, Mount Penny).
1056 The confidential information Mr Macdonald allegedly provided (or caused to be

provided) was alleged by the Crown to be aligned with the motivation and
ambition of the Obeids to exploit the prospect of coal underlying Cherrydale
962
Exhibit A p 1957.
5KIPGFD[#WUV.++
Park (and in the area more generally) in a way that was made explicit in the
Crown’s closing submissions. The Crown submitted that after the second
Wentworth Hotel meeting with Mr Brook on 7 July 2008 there were
communications between each of the three accused “updating” the results of
that meeting and where what was discussed was “getting a list of companies to
be invited to participate in the EOI process so as to enable Mr Brook to pursue
a joint venture deal”.963
1057 To the extent that the Crown submitted there is a purposive link between Mr
Macdonald’s commission of the sixth to ninth acts of misconduct (namely, the
pursuit by members of the Obeid family of a “joint venture deal” 964), a further
question arises. Even if I am satisfied that Mr Macdonald did commit
successive acts of misconduct by providing, or causing Edward Obeid or
Moses Obeid or family members to be provided with information concerning
the EOI process in some way (including, necessarily, that the particular
information conveyed, communicated or provided by him was confidential in
the relevant sense) does that allow for a further funding that they were acts of
misconduct committed in furtherance of the conspiracy alleged, so as to
support proof of the existence of that conspiracy as at 9 May 2008 beyond
reasonable doubt?
1058 In addressing that question I would need to discount any reasonable possibility
that Mr Macdonald was misconducting himself in wilful breach of his duty of
confidentiality and/or impartiality in the commission of those five acts of
misconduct in furtherance of a different conspiracy altogether, namely a
conspiracy that was forged after the 6 June 2008 meeting, when the DPI was
in the process of designating what ultimately became the Mount Penny Coal
Release Area for inclusion in the pending EOI process, and after Mr
Macdonald had shared that information with Edward Obeid and Moses Obeid
(as I have found he did). I would also need to discount any reasonable
possibility that Mr Macdonald committed those acts of misconduct unilaterally,
(whether his provision of the confidential information was motivated by
963
MFI 181 par 367.
964
MFI 181 par 367.
5KIPGFD[#WUV.++
friendship, political patronage or some other motivation personal to him)

extrinsic to any agreement with either of the accused that he should do so.
1059 I also acknowledge the submissions advanced by Ms Francis and Mr Neil, and
adopted by Mr Martin, that were I only to find that some or even all of the fourth
and the sixth to the ninth acts of misconduct inclusive established, I would
need to be satisfied that they were each committed in furtherance of a
conspiracy of the same scope and object as that alleged in the indictment, and
not a different conspiracy or a different Crown case theory as to the
commission of the conspiracy alleged before I could take them into account as
evidence probative of the Crown case.965
1060 Before turning to consider the sufficiency of the evidence to establish the
remaining five acts of misconduct (being, out of chronological sequence, the
sixth, then the fourth and the seventh to ninth acts of misconduct), it is
important to emphasise again that Mr Mullard’s evidence, and to a lesser
extent Mr Gibson’s evidence, concerning the meetings with Mr Macdonald on 4
and 6 June 2008 is of continuing relevance to proof of the Crown case,
although not as evidence from which the existence of the conspiracy might be
inferred, at least not in the particular way contended for by the Crown.
1061 That evidence gives context to the circumstances in which “Area 7 Mount
Penny” was designated by Ms Moloney as the seventh small area for inclusion
in the proposed EOI process by mid-June 2008 before that area was ultimately
rendered as Diagram X by Mr Schiavo later that month and then formally
incorporated as one of the eleven areas for the granting of an EL in the public
launch of the EOI process on 9 September 2008.966
When was the “Mount Penny Coal Release Area” (encompassing Cherrydale
Park, Coggan Creek and Donola) designated and when was it included as
Mount Penny Coal Release Area in the closed EOI process for the grant of an
EL?
1062 This question can be dealt with in a practical way by setting out a chronology of
largely undisputed events and occurrences internal to the DPI (after the 6 June
965
R v Mok (1987) 27 A Crim R 438.
966
It was identified in that way in the Information Package which was released at that time – see Exhibit A p
1957.
5KIPGFD[#WUV.++
2008 meeting) which culminated in the boundaries of the Mount Penny Coal
Release Area being fixed by Mr Schiavo, the Senior Land Information Officer
within the Titles and Systems section of the Coal and Petroleum Development
Group of the Department of Primary Industries and reproduced in Diagram X
extracted below at par 1079. One of the questions raised by this body of
evidence is the chain of events within the DPI leading to that designation, in
particular the source of the information which enabled Mr Schiavo to “map” the
area of the proposed Mount Penny EL and to do so to scale.
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.
1064 On 16 June 2008, Mr Mullard sent an email to Dr Sheldrake copied to both Mr

Gibson and Mr Munnings. Attached to that email is a document entitled “EOI
Areas” (the first 16 June EOI areas document). In the body of the email, Mr
Mullard referred to the information in that document as “information for meeting
with the Minister as requested”. That meeting was scheduled on 17 June 2008,
as a follow-up meeting from the meetings on 4 and 6 June 2008.
1065 In an email from Mr Mullard to attendees on 16 June 2008 in advance of the

meeting the following day with Mr Macdonald,967 it is clear that the potential
large open cut coal resource in Wiles Map 2 was no longer being treated as
such by the DPI. Although Ms Moloney’s map of the Western Coalfield
attached to the 16 June 2008 email as part of the Ministerial Briefing did not
include the shape of Area 7, a coal release area headed “Mount Penny”968 was
described in the email as an “estimated open cut resource of 100Mt” 969 in the
967
Exhibit A p 949.
968
Exhibit A p 946.
969
The maximum size of a “small” coal resource.
5KIPGFD[#WUV.++
area “expected to contain open cut coal resources close to existing rail
facilities”.970 That information is set out in full below:
The Department has contracted to drill a number of exploration wells for the
area. The area is expected to contain opencut resources close to existing rail
facilities.
Estimated open cut resources Less than 100Mt in the Mt Penny area.
Resources are contained within the Ulan Seam, raw ash ranges from 15 –
27%.
Estimated Minimum Return $15 million
Possible Time Frame for MT Penny Expression of Interest (EOI):
EOI Information
and data package preparation 4 weeks End July
EOI Period 8 weeks End September
EOI Assessment 4 weeks End October971
1066 In a follow-up email from Ms Moloney to Mr Mullard and copied to Ms Wiles six
minutes later, “Mount Penny” is included as the seventh additional small area
in an attached map.972 The pink highlighting around Area 7 is added for
emphasis:
970
Exhibit A p 946.
971
Exhibit A p 946.
972
See the revised map at Exhibit A p 951.
5KIPGFD[#WUV.++
1067 It is the Crown case that Mr Macdonald passed the information in the
Ministerial Briefing to Moses Obeid at a scheduled dinner meeting at the Credo
5KIPGFD[#WUV.++
Restaurant in Cammeray that evening.973 The discrete fact (in bold in the
extract above) that “the EOI process was to commence at the end of July
2008” was said by the Crown to be confidential information. It is the subject of
the sixth act of misconduct. I will return to consider whether that act of
misconduct is established later in these deliberations 974 since the evidence
relied upon by the Crown to establish it extends from 17 June 2008 to 23 July
2008 and where, on the Crown case, the fourth and seventh acts of
misconduct were committed over the course of the same four weeks in the
context of a rapidly evolving state of affairs in Moses Obeid’s dealings with Mr
Rumore, solicitor, and Mr Brook.
1068 Ms Moloney gave evidence she was asked to prepare the map of the seven
areas by Mr Mullard. She could not recall why Area 7 was called Mount Penny
other than that the numerical designation “carries on” her numbering system”.
Nor could Ms Moloney recall how the shape for Area 7 was arrived at, other
than to say she believed it was provided to her.975

1069 The 17 June 2008 meeting was held at the Minister’s office. It was attended by
Mr Macdonald, Mr Gibson, Mr Mullard and Ms Romano.
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”.976
1071 Under cross-examination by the Crown with leave, Mr Mullard gave evidence
that it was at this meeting that he first spoke with Mr Macdonald about a
specific EOI area named “Mount Penny”. Again under cross-examination with
leave, he made it clear that the words “Mount Penny” and the geographical or
cartographic icons designating the location of Mount Penny were, in any event,
on maps including Wiles Maps 1 and 2. He said he did not have a conversation
with Mr Macdonald about Ms Moloney’s map of the seven areas or the
973
Exhibit A p 961 – see later at par 1108 where the Credo dinner is discussed.
974
975
T 2266.
976
T 2489.
5KIPGFD[#WUV.++
designation of the Mount Penny area on it. He also gave evidence that he had
no recollection of directing Ms Moloney to create the area known as Mount
Penny and nominated by her as “Area 7”. Mr Mullard said he had no discussion
with Ms Moloney as to why she included the seventh area described in that
way and had no dealings with Mr Schiavo in his designation of the Mount
Penny Coal Release Area on the Mining ID template or its boundaries on
Diagram X.
1072 On 17 June 2008, or shortly thereafter, responsive to a request from Mr

Macdonald, Mr Mullard instructed Ms Moloney to set about compiling a list of
companies to be invited to participate in the EOI process. An iteration of that
list, being a list titled “Company EOI 2 July 2008”, or the information on that list,
was said by the Crown to be confidential information. The Crown alleged Mr
Macdonald caused that list, or the information on it, to be provided to Edward
Obeid, Moses Obeid or a member of their family after 9 July 2008. It is the
subject of the seventh act of misconduct.
1073 Before turning to consider the evidence relevant to proof of the sixth and
seventh acts of misconduct (and for reasons which will become clear, why I
propose to consider the evidence relevant to proof of the fourth act of
misconduct out of chronological sequence by considering it after the sixth act
of misconduct), it is useful to digress and deal with Mr Schiavo’s evidence as it
relates to the preparation of Diagram X. It will be necessary to return to his
evidence later since it is also relevant to proof of the eighth act of misconduct.
Mr Schiavo creates Diagram X encompassing Cherrydale Park, Donola and

Coggan Creek
1074 Mr Schiavo gave evidence that his various tertiary qualifications equipped him
to work in various capacities within the New South Wales Public Service since
1982 by drawing and preparing maps for a variety of different purposes. 977
1075 Applying that accumulated expertise, in May and June 2008 he held the
position of Senior Land Information Officer within the Titles and Systems
section of the Coal and Petroleum Development Group within the DPI. 978
977
T 523.
978
T 524.
5KIPGFD[#WUV.++
1076 On 27 June 2008, Mr Schiavo received an email from Ms Moloney which read
as follows:
Hi Fred
Coal Advice has created shape file for 5 areas in the western coalfield with
potential for EOIs.
Could you please under take an titles id on each area for me.
There are an addition 2 areas which I will forward ASAP. 979 [sic]
1077 Mr Schiavo gave evidence that he could not recall complying with that request
but he “probably did”980 by completing what he described as a “mining ID
template, identification template”981 into which he included information in
relation to the proposed coal area.982 He described the purpose of a mining ID
template as follows:
This document goes to various units within the department to just check and
process to see if it’s - if it can be granted as a whole or if it is affected by a
national park and it would have to be trimmed, so it can be granted that way. 983
1078 Mr Schiavo went on to give evidence that the completion of the template was to
confirm that a contemplated area for release did not have “conflicting titles and
applications” that may need to be taken into account.984 The template is
reproduced below:985
979
980
T 532.
981
T 533.
982
Exhibit A p 1011.
983
T 533.
984
T 533.
985
Exhibit A p 1011.
5KIPGFD[#WUV.++
5KIPGFD[#WUV.++
1079 Mr Schiavo confirmed that in relation to what ultimately became Diagram X,

prepared by reference to the template, there were various existing licence
holders to take into account (including but not limited to the DPI who held EL
6676 and Authorisation 287 to the east held by Anglo Coal P/L) together with
additional information in relation to County and Parish identifiers which he
described as “an older English system” which existed “prior to digital
mapping”986 and other information including “National Parks Estate and World
Heritage Areas”.987
986
T 534.
987
T 536.
5KIPGFD[#WUV.++
Diagram X
1080 Ultimately, he described following process in the creation of Diagram X:
5KIPGFD[#WUV.++
Q. And what process did you follow to create this diagram and, in particular,
the red lines which set out the proposed tender area?
A. Okay, so I would have either have been given a diagram or coordinates. To
prepare that, I’d have to create a shapefile and within the shapefile - a
shapefile may consist of five to seven files and within those five to seven files
you would have a database file which lists attributes regarding that shape and
you would have a projection file. And I am not sure what the other files do, but
they work together to create this polygon. That’s called a polygon and you can
place attributes on that polygon for the future. Once it is granted, you have got
it sitting there already with - you can put attributes to it straightaway.
Q. What do you mean by “attributes”?
A. Attributes, what it’s going to be called, what new EL it is going to become.
So it is all set up there ready for it to be named.
Q. Do you use a particular computer program to create a document such as
this diagram X?
A. The department has got a GIS system called ArcMap.
Q. Yes.
A. And we utilise that system for all our mining and exploration titles and
applications, and we register the shapes with the cadastre on the background
there - you see all the little lots?
Q. Yes.
A. So we register all the shapes, if it is falling on that cadastre, to the
background.
Q. You said a few minutes ago that you would have been given a diagram or
some coordinates?
A. I’m not sure because they came at different times to me, over a period of I
think it was a couple of weeks.
Q. Yes, okay.
A. And I'm not sure whether they came - whether this was coordinates that
they had given me or it was just a map. It may have been a map and I’ve
calculated the coordinates.988
1081 Mr Schiavo also made it clear that Diagram X is a “generic term” which is
applied to an identification sheet when he is asked “to identify an area whether,
it be for tender or… for some other [Departmental] purpose”.989
1082 Mr Schiavo gave evidence that he had no role at all in deciding the shape of
the proposed Mount Penny EOI area, the way Diagram X was identified, or its
name. He said he had “no idea of any [coal] resources within that area”. He
said that information came from Coal Advice and, as he described it, the
proposed Mount Penny EOI area was, to him, “just another shape”. 990 He went
on to give evidence that after using the shape file he had created he then used
988
T 534-535.
989
T 554.
990
T 535.
5KIPGFD[#WUV.++
a system called XTools Pro to calculate the number of hectares encompassed

by that shape file.
1083 What did not emerge clearly from the evidence adduced by the Crown but what
did emerge, with clarity, in cross-examination and what was confirmed further
in re-examination, is that Diagram X (as fixed and configured by Mr Schiavo)
was created, to the extent possible, by lining up the boundaries of existing
Authorisation 287, Authorisation 342 and EL 6676, again using a software
package the esoteric details of which it is not necessary for me to describe and
as to which the parties made no submissions. Mr Schiavo gave evidence that
he would have been provided by Coal Advice with either rough coordinates or
a topographical map from which he calculated the GPS coordinates, effectively
“massaging” or “adjusting” those coordinates referable to any “portion
boundary or an intersection” onto which the boundary line would be “snapped”
so as to avoid future boundary disputes.991
1084 Mr Schiavo was, however, unable to give any evidence as to what information,
whether in the form of shape files or GPS coordinates he received from Coal
Advice and, despite a comprehensive search of his records, including his email
records undertaken in the course of the ICAC investigation and additional
enquiries he was asked to make preparatory to trial, he could not identify who
from Coal Advice provided that information or the precise form of that
information other than it was information provided by either Ms Moloney or Mr
Ruming. Ms Moloney gave evidence she did not provide that information. Mr
Ruming did not give evidence in the trial.
1085 Mr Schiavo gave evidence that he had never seen Wiles Map 2, and was never
asked to undertake a process where he checked to see whether a “red or pink
crosshatched shape” intersected or overlaid Authorisation 287 to the east, nor
was he informed of the extent to which he needed to take information of that
kind into account in preparing Diagram X.
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
991
T 573.
5KIPGFD[#WUV.++
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.992 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.
1087 For completeness, I note that the registered proprietors of each of the three
properties as at 16 June 2008 when Area 7 was identified by Ms Moloney and
later that month when Diagram X was created were as follows:
(1) Locaway P/L was the registered owner of Cherrydale Park (subject to
mortgage).
(2) Michael Gerard Stanmore and Graham Alexander Stanmore as the
executors of the estate of the late Mr Kevin Stanmore were the
registered owners of Donola. They did not give evidence in the trial. Mr
Adlington, estate agent, gave evidence that prior to Mr Stanmore’s
death he was engaged to list and market the property for sale around
June of 2008.993 Once the property was listed, Mr Adlington received an
enquiry from Mr Rodd who asked to inspect the property on behalf of his
client.994 His client was Damian Obeid. Mr Rodd inspected the property
with Mr Adlington some time before 23 June 2008.
(3) Coggan Creek was comprised of two titled properties.995 As at June
2008, the registered owners of the land comprising Coggan Creek were
TE O’Brien (Merriwa) Pty Ltd (the director of which was Mr Terence
O’Brien) and Mr Terence (Edward) O’Brien.996 Mr O’Brien and his wife
had attempted to sell Coggan Creek “several years” prior to 2008 but
were unsuccessful due to the drought.997 By 2008, Mr O’Brien was
suffering financially from the effects of “the drought and low prices” 998
and was not able “to get the work done to keep the farm operating”. 999
992
993
T 1232. See also Exhibit G.
994
T 1233.
995
T 1963.
996
Exhibit G; Exhibit AT.
997
T 1259.
998
T 1259.
999
T 1260.
5KIPGFD[#WUV.++
His wife was also unwell. Following an approach from Mr Adlington, who
informed the O’Briens he had successfully sold the adjacent property
(which Mr O’Brien knew to be Donola), Mr Rodd inspected the property
with Mr Adlington on two occasions before 23 June 2008. He did so at
Damian Obeid’s request in order to provide advice on its “agricultural”
worth. On 23 June 2008, Mr O’Brien offered to sell Coggan Creek (or
parts thereof) for $3 million.1000
1088 On 6 August 2008, on instruction from Moses Obeid, Mr Rumore, solicitor,
executed a contract for the purchase of Donola in the name of Geble P/L, as
trustee for the Elbeg Unit Trust, as purchaser.1001 The unit holders were UPG
P/L as trustee for the Moona Plains Family Trust and Challenge Property
Investment Group P/L as trustee for the Triulcio Family Trust. On the same
date, also on instructions from Moses Obeid, Geble P/L entered into option
agreements for the purchase of the properties comprising Coggan Creek.
1089 In the Crown’s submission, the timing of Moses Obeid’s instructions to Mr

Rumore to acquire the two neighbouring properties to Cherrydale Park is
significant, being co-ordinate with his dealings with Monaro Mining NL (via Mr
Brook) as he continued to capitalise on his receipt of confidential information
from Mr Macdonald in furtherance of achieving the object of the conspiracy.
The evidence upon which that submission is based will be reviewed in detail
when I turn to consider Mr Brook’s evidence of his dealing with Monaro Mining
NL and Cascade Coal P/L, in each instance on behalf of Moses Obeid. 1002
1090 Finally, despite what I have accepted was Mr Macdonald’s enthusiasm to have
additional small to medium areas identified by the Department for release, and
what I am satisfied was Mr Macdonald’s “strong suggestion” that the
Department see whether it was possible to excise a smaller release area from
Wiles Map 2, there is no evidence that he either asked for or was provided with
Diagram X, or the GPS coordinates of the shapefile of Area 7, or any other
document, diagram, or information which might have evidenced or visualised
that the seventh small area for inclusion in the pending EOI process, named
“Mount Penny” by Ms Moloney, actually encompassed Cherrydale Park and
the neighbouring properties of Donola and Coggan Creek.
1000
Exhibit A p 991.
1001
Exhibit G p 10.
1002
See later at par 1362 and following and par 1700 and following.
5KIPGFD[#WUV.++
1091 Mr Martin relied upon that fact as undermining the Crown case that Mr
Macdonald “directed” the excision of a small area to the east of the potential
open cut area in Wiles Map 2 and undermining proof of the existence of the
conspiracy as at 6 June 2008. He submitted that were Mr Macdonald to have
effectively “directed” that the Mount Penny Coal Release Area be created as
an act in furtherance of the conspiracy alleged, he would almost certainly have
wanted the assurance that his direction had been complied with, if for no other
reason than to relay that confirmation to his co-conspirators.
1092 At the time of Mr Martin’s closing submissions there was some force in that
submission. However, in circumstances where I have not found the fifth act of
misconduct proved, but I have found that Mr Macdonald relayed to either or
both of Edward Obeid and Moses Obeid his reasonable expectation that a new
coal release area would be created in the area of Mount Penny following the
6 June 2008 meeting, and where, for reasons I will come to presently, I am
also satisfied Mr Macdonald relayed the results of the 17 June 2008 meeting,
by which time “Area 7 Mount Penny” had been included as the seventh small
area for inclusion in the pending EOI, the fact that Mr Macdonald did not seek
visual confirmation of the boundaries of the new coal release area is not a
matter I consider has any bearing on whether the Crown has established one
or more of the five remaining acts of misconduct or, were I satisfied one or
more is established, whether the Crown has proved the existence of a
conspiracy predating 9 May 2008 beyond reasonable doubt.
The sixth act of misconduct

1093 The sixth act of misconduct is particularised by the Crown as follows: 1003
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.
1094 It is also the Crown case that between 17 June and 23 July 2008, Edward
Obeid and/or Moses Obeid received that information (the timeframe
information) from Mr Macdonald.
1003
MFI 134/1 par 3(f).
5KIPGFD[#WUV.++
1095 To establish the sixth act of misconduct, the following facts need to be
established:
(1) Mr Macdonald was provided with the timeframe information by the DPI.
(2) Mr Macdonald provided that information to Moses Obeid (either directly
or via Edward Obeid). The Crown seeks to establish that fact by proving
the following:
(a) Moses Obeid instructed Mr Rumore on 23 July 2008 that the EOI
process was to commence on 29 July 2008.
(b) Moses Obeid informed Mr Brook by 22 July 2008 that the EOI
process was to commence by the end of July 2008. The Crown
seeks to establish that fact by proving the following:
(c) That Mr Brook told Mr Grigor the EOI would commence by the
end of July 2008.
(d) That Mr Grigor conveyed that information to Mr Irwin, solicitor,
retained to act for Monaro Mining NL.
1096 The evidence relevant to establishing (1) above is relatively straightforward. As
discussed below, Mr Rumore gave evidence that he was advised of that
timeframe. However the evidence capable of establishing the facts embedded
in (2) is infected by ambiguities and inconsistencies arising on the evidence,
including by whom and to whom the timeframe information was provided, when
that occurred, and the terms in which the information was communicated.
Those issues were exacerbated by the fact that because there is no direct
evidence as to when within the timeframe of 17 June to 23 July 2008, as the
sixth act of misconduct as particularised, Mr Macdonald provided the
information. The Crown relied on what it contends is information that was
subsequently conveyed by Moses Obeid to Mr Rumore and Mr Brook, then by
Mr Brook to Mr Grigor (the Chairman of Monaro Mining NL), and then by Mr
Grigor to Mr Irwin (a solicitor retained by Monaro Mining NL) to establish, by
inference, that Mr Macdonald was the source of that information.
The 16 June 2008 EOI Areas document

1097 As I have already noted, on 16 June 2008, Mr Mullard emailed 1004 Dr
Sheldrake, Mr Gibson, and Mr Munnings a document titled “EOI Areas”. 1005
That document was prepared by Ms Moloney.1006 It included the following:
1004
Exhibit A p 941.
1005
5KIPGFD[#WUV.++
Possible Time Frame for MT Penny Expression of Interest (EOI):

EOI Information and data preparation 4 weeks End July
EOI Period 8 weeks End September
EOI Assessment 4 weeks End October1007
1098 I have again already noted that there is no clear evidence as to who in the DPI
prepared the “possible timeframe” for Mount Penny. Mr Mullard gave evidence
that Ms Moloney nominated the timeframe and that he approved it prior to
emailing the EOI Areas document.1008 However, Ms Moloney could not recall
being involved in preparing the information.1009
1099 Mr Mullard explained in his evidence that the timeframes nominated in the EOI
Areas document were “tight” because “there was urgency from the Minister’s
office to release the areas”.1010 He recalled speaking to Mr Gibson on the
phone “every few days” in the period before the preparation of the EOI Areas
document, with Mr Gibson seeking updates as to the progress of the DPI’s
preparation in keeping with the Minister’s “goal” that “smaller areas” be
released under an EOI process.1011
1100 On the Crown case, Mr Macdonald was provided with the EOI Areas document
by Mr Gibson and, even if he was not given that particular document, its
contents were discussed at the meetings on 16 and 17 June 2008 and he
came to learn of the timeframe information in that way. It is the Crown case he
then provided that information to either or both of Edward Obeid and Moses
Obeid in breach of his duties of confidentiality and impartiality.
1101 Mr Gibson gave evidence that he provided a copy of the EOI Areas document
he received by email to Mr Macdonald.1012 There is no evidence as to when
that occurred although it was Mr Gibson’s usual practice to provide documents
from the DPI to the Minister “at the first available opportunity”. 1013 I note Mr
Neil’s closing submission that the EOI Areas document was not initialled to
1006
T 2266.
1007
Exhibit A p 946.
1008
T 706.
1009
T 2266.
1010
T 706.
1011
T 903.
1012
T 2485.
1013
T 2491.
5KIPGFD[#WUV.++
indicate Mr Macdonald had reviewed it, although I do not regard that as

definitive.1014
1102 Although Mr Gibson’s evidence that he gave Mr Macdonald the EOI Areas
document is worthy of weight, I am not persuaded by his evidence alone that
Mr Macdonald had possession of the document or, if he was given it, when that
occurred. The resolution of that question will await the consideration of other
evidence.

1103 On 16 June 2008, a meeting was convened by Mr Macdonald and attended by
Dr Sheldrake, Renata Brooks1015 and possibly Mr Gibson.1016
1104 Dr Sheldrake prepared an agenda for the meeting, on which he recorded

handwritten notes during the meeting.1017 The third item on the agenda read
“Coal Resource Identification Cabinet Minute”. A further bullet point aligned
with that item read “New Release Areas”. Immediately adjacent to that note
was another handwritten notation which Dr Sheldrake explained in his
evidence:
So there is a dash and it says “small areas 4 weeks”. Then “- Benelabri

February 2009” and I have written “Ridgeway soon” but it refers to the
Ridgelands resource. And I have written “new release areas tomorrow”. 1018
1105 Beyond interpreting his handwritten notes, which are opaque as to their
meaning, Dr Sheldrake had no recall of what was discussed at the meeting.
1106 The Crown submitted I would infer from Dr Sheldrake’s notes that the
timeframe for the EOI process, including Mount Penny, was discussed at the
meeting.1019
1107 The difficulty I have with that submission is that there is no evidence the EOI
Areas document emailed to Mr Gibson was produced or discussed at the
meeting and, as the sixth act of misconduct is particularised, it was the
information in that document that was identified as the confidential informati on
1014
T 2445.
1015
Exhibit A p 953.
1016
T 2488.
1017
Exhibit A p 957. A draft of the agenda appears at p 955.
1018
T 2334.
1019
MFI 181 p 75.
5KIPGFD[#WUV.++
which Mr Macdonald provided in breach of his duties of confidentiality and

impartiality. Additionally, and in any event, there is no evidence that either
Edward Obeid or Moses Obeid acted in a way that was consistent with being
told, directly, or indirectly, that the EOI for Mount Penny would commence
“4 weeks” from 16 June 2008. I note in that connection that at the conference
with Mr Rumore on 23 and 30 June 2008 within the “4 week” timeframe he was
not instructed of the need to act immediately to secure the Obeids’ interests as
landowners in a prospective joint venture deal. The position was different in the
23 July 2008 conference as to which see later at par 1124 and following.
The 16 June 2008 Credo Dinner
1108 Mr Macdonald’s electronic diary recorded a 6:30pm dinner meeting with

Anthony Cummings at Credo restaurant in Cammeray. That diary entry also
contained a reference to “Moses Obeid” from which the Crown invited me to
draw the inference that Moses Obeid also attended the dinner meeting
probably at Mr Macdonald’s invitation. In the Crown’s submission, the Credo
dinner meeting provided one of various opportunities (as to which see below)
for Mr Macdonald to convey the timeframe information to Moses Obeid.
1109 As at June 2008, Anthony Cummings was a horse trainer involved at Randwick
Racecourse.1020 He was the son of Bart Cummings, a friend of Peter Fitzhenry
who lived close to Moses Obeid’s and the Fitzhenry residences in Elizabeth
Bay. Mr Fitzhenry introduced Anthony Cummings to Moses Obeid.1021 As at
June 2008, Mr Macdonald was involved as Minister in ongoing political
negotiations concerning the interrelated issues of equine influenza, the
redevelopment of Randwick Racecourse, and World Youth Day, which was
proposed to be hosted at that venue.1022
1110 The accused submitted that the entry in Mr Macdonald’s diary was not a
sufficient basis to infer that Moses Obeid attended the dinner meeting and
further, even if he did attend, as the meeting was convened in order for the
attendees to discuss issues pertaining to the Randwick Racecourse and
1020
T 2435.
1021
T 1291.
1022
T 2435.
5KIPGFD[#WUV.++
equine influenza, it was unlikely that Mr Macdonald would provide confidential

information to Moses Obeid in the company of others.
1111 Additionally, given the uncertainty attending when Mr Gibson gave Mr

Macdonald a copy of the EOI Areas document which contained the timeframe
information for the Mount Penny EOI (if he did), I am not able to reason to the
confident conclusion that Mr Macdonald received or read the document prior to
the Credo dinner meeting. It follows that the inference contended for by the
Crown, namely that the Credo dinner meeting provided Mr Macdonald with an
opportunity to inform Moses Obeid of the proposed timeframe for the Mount
Penny EOI, does not have the force contended for.
The 17 June 2008 meeting 1023

1112 Mr Mullard gave evidence that he “believe[d]” the EOI Areas document was
discussed at this meeting. He also recalled discussing an area called “Mount
Penny” with the Minister.1024
1113 Mr Gibson also gave evidence the content of the EOI Areas document was
discussed at this meeting, as was “Mount Penny”, being one of the areas
identified in that document. He gave the following evidence:
Q. That briefing document included, at page 946, area titled Mount Penny [in
the EOI Areas document]. What, to your recollection, was discussed at the
meeting on 17 June about the Mount Penny area?
A. That it was one of the areas going forward into the expression of interest
process and it would be in the small to medium category.
Q. The document at 946 includes, as I took you to previously, the possible
timeframe for the Mount Penny expression of interest. Was there discussion at
the meeting about that timeframe?
A. Yes.
Q. And what was the discussion?
A. Just that could it be done as soon as possible.
Q. And who said that?
A. Mr Macdonald.1025
1114 On the Crown case, Mr Gibson’s evidence (extracted above) establishes that
at the 17 June 2008 meeting Mr Macdonald was aware of and considered the
Mount Penny EOI timeframe set out in the EOI Areas document. Mr Neil
1023
Exhibit A p 965.
1024
T 707.
1025
T 2489.
5KIPGFD[#WUV.++
characterised Mr Gibson’s evidence as establishing only that in discussing the

timeframes that Mr Macdonald requested that the Mount Penny EOI take place
“as soon as possible”, not that the discussion was referable to the EOI Areas
document or the timeframe nominated in it. Mr Neil submitted that there was a
“clear inference” that Mr Macdonald would have relied upon the discussion at
the 17 June 2008 meeting about the prospective time frames for release of the
Mount Penny EOI process as part of the EOI process generally, rather than the
EOI Areas document itself.1026
1115 In my view, that submission fails to confront the import of Mr Gibson’s

evidence. Although I accept there is some latent ambiguity in his evidence as
to whether the “timeframe” was discussed referable to the EOI Areas document
or more generally, the Crown’s question of Mr Gibson did refer to a page of the
EOI Areas document which “includes… the possible timeframe for the Mount
Penny expression of interest”.1027 The Crown asked Mr Gibson whether “that”
timeframe was discussed at the meeting (that is, on one view of the question,
the timeframe nominated in the EOI Areas document). Mr Gibson responded
that it was discussed by Mr Macdonald confirming that “it” (again on one view
of the question, the timeframe nominated in the EOI Areas document) “should
be released as soon as possible”.1028 Mr Gibson did not specifically say that
discussion was referrable to the EOI Areas document itself, and the Crown did
not seek to establish that fact (which, if established, would also have
established that the EOI Areas document was discussed at the meeting).
1116 While I accept from Mr Gibson’s evidence that Mr Macdonald did request that
the Mount Penny EOI be commenced “as soon as possible” it does not follow
that in making that request Mr Macdonald was aware of, or appreciated, that
the proposed timeframe for the Mount Penny EOI (as stated in the EOI Areas
document) was the end of July 2008.
1117 Having considered all the evidence, I am not able to reach a level of
comfortable satisfaction that the EOI Areas document was produced at the 17
1026
MFI 192 p 155.
1027
T 2489.
1028
T 2489.
5KIPGFD[#WUV.++
June 2008 meeting and that the timeframe nominated in it for the Mount Penny
EOI, namely “4 weeks end July”,1029 was what was being discussed.
1118 The question remains whether the Crown has established that Mr Macdonald
was in receipt of the confidential information particularised in the sixth act of
misconduct as “the EOI process for Mt Penny was to commence at the end of
July 2008” even if it did not source directly from the EOI Areas document. The
further question whether he provided the timetable information to Edward
Obeid or Moses Obeid in breach of his Ministerial duties and obligations of
confidentiality and impartiality, and in furtherance of the conspiracy alleged,
also remains to be considered.
1119 Were I to find that Edward Obeid or Moses Obeid had that specific information,
and were I able to find, as a matter of inference, that it was Mr Macdonald who
provided it to either or both of them, that might allow for the further finding that
Mr Macdonald must have been in receipt of the timeframe information
nominated for the Mount Penny EOI in the EOI Areas document from his
discussion with the DPI at either or both of the 16 and 17 June 2008 meetings.
Was there the “opportunity” for Mr Macdonald to provide the “timetable

information” to Edward Obeid or Moses Obeid?
1120 The Crown submitted there were “numerous opportunities” for Mr Macdonald to
convey the timeframe information to either Edward Obeid or Moses Obeid. I
have already concluded that the 16 June 2008 Credo meeting does not
constitute opportunity evidence.
1121 In closing submissions, the Crown elected to set the opportunities Mr

Macdonald had to convey the information to Edward Obeid or Moses Obeid by
way of example from the following phone contact between the accused on 23
June 2008:
(1) A call placed by Edward Obeid to Mr Macdonald at 7:03am (one

minute).
(2) Two calls placed by Moses Obeid to Edward Obeid at 8:08am, which
lasted for ten seconds and thirteen seconds, respectively, followed by a
further call at 8:09 (one minute and twenty seconds).
1029
Exhibit A p 946.
5KIPGFD[#WUV.++
(3) A call placed by Edward Obeid to Mr Macdonald at 9:28am

(30 seconds) and a call from Edward Obeid’s office to Mr Macdonald’s
office at 9:51am (53 seconds).
(4) A call placed by Moses Obeid to Edward Obeid at 4:40pm (4 minutes
and 41 seconds).
(5) A call placed by Edward Obeid to Mr Macdonald at 4:50pm (1 minute).
(6) A call placed by Moses Obeid to Edward Obeid at 5:57pm (1 minute
and 12 seconds).1030
1122 The Crown’s emphasis on the phone contact between the accused on 23 June
2008 is problematic. It leaves only a five day interlude between the provision of
the EOI Areas document to Mr Macdonald at the 17 June 2008 meeting (if it
was in fact provided to or read by him on that occasion) and the relay of the
timeframe information contained in that document to Edward Obeid or Moses
Obeid, in circumstances where there is a month-long interlude between the
alleged communication by Mr Macdonald of the timeframe information and that
information being provided by Moses Obeid to Mr Rumore on 23 July 2008.
1123 I note that in the period 17 June to 23 July 2008, Mr Macdonald and Edward
Obeid were in contact by phone on 43 occasions and that, during the same
timeframe, Mr Macdonald and Moses Obeid were in contact by phone on
9 occasions.1031 I also note that some of those occasions of phone contact
lasted less than ten seconds. Edward Obeid and Moses Obeid were also in
contact numerous times during the same time period.1032 While I accept the
Crown’s submission that the evidence establishes ample opportunities for the
communication to Edward Obeid or Moses Obeid of the information the subject
of the sixth act of misconduct, I am also of the view that the probative weight of
that evidence diminishes, given that the timeframe for the Mount Penny EOI
was altered on 7 July 2008, a matter Mr Macdonald was aware of (as to which
see below).
1030
Exhibit U p 38, MFI 181 p 76.
1031
Exhibit U pp 40-43.
1032
Exhibit U pp 40-43.
5KIPGFD[#WUV.++
The relevance of the 23 July 2008 Rumore conference to proof of the sixth act
of misconduct
1124 On 23 July 2008, a month after Mr Rumore was retained by Gerard Obeid and
Paul Obeid to act, inter alia, on the prospect of a mining deal, 1033 Mr Rumore
convened a further client conference attended by Moses Obeid, Gerard Obeid
and Paul Obeid. Mr Brook was in attendance at that conference at Moses
Obeid’s invitation.1034
1125 Mr Rumore made a handwritten file note of that conference which included an
entry which read:
- Finalise Monaro
Option by 29/7/08 (as
Date for opening of
Govt’s E.O.I campaign)1035
1126 Mr Rumore gave evidence that entry reflected his instructions that the
“government expressions of interest campaign was going to start on 29 July
2008 and we had to get the documentation [in relation to the option deed with
Monaro Mining NL] done by that time”.1036 In cross-examination, he rejected
the proposition he had incorrectly recorded the date conveyed to him. 1037 Mr
Rumore also gave evidence that it was likely that Moses Obeid provided him
with those instructions because he was the person his brothers deferred to and
“he did most of the talking most of the time”.1038 Mr Rumore conceded in cross-
examination, however, that he could not recall, with certainty, that it was Moses
Obeid who instructed him on that particular issue.1039
1127 Mr Neil cross-examined Mr Brook with a view to establishing that he

volunteered the information as to the launch date for the government’s EOI
campaign. Mr Brook maintained he was a “minor” participant at the conference
which he attended at Moses Obeid’s request.1040 Furthermore, as the Crown
submitted in closing and as Mr Rumore made clear in his evidence, Mr Brook
1033
1034
Exhibit Q pp 1251-1252. This was the first time Moses Obeid introduced Mr Brook to Mr Rumore.
1035
Exhibit Q p 1252.
1036
T 1977.
1037
T 2063.
1038
T 1977.
1039
T 2060.
1040
T 3184.
5KIPGFD[#WUV.++
was not Mr Rumore’s client and, for that reason alone, he was an unlikely
source of instructions for the ongoing legal advice that by 23 July 2008 Mr
Rumore had been providing to the Obeids for some weeks.1041 For reasons I
will detail later when considering the role Mr Brook played in his dealings with
Moses Obeid from early July 2008 throughout and beyond the conspiracy
period, I accept that submission.
1128 Despite what I am satisfied was Moses Obeid’s dominant role in providing
instructions to Mr Rumore generally throughout the course of his provision of
legal services from June 2008 through to September 2009,1042 I am unable to
find, to a comfortable level of satisfaction, that it was Moses Obeid, as distinct
from one of his brothers, who informed Mr Rumore about the date for the
opening of the EOI campaign. That leaves open the question whether Mr
Macdonald provided Moses Obeid with that information and, foundational to
that question, whether Mr Macdonald had possession of the EOI Areas
document or appreciated the information it contained as to the proposed
timeframe for the Mount Penny EOI. Those questions will need to be
addressed after considering Mr Brook’s and Mr Grigor’s evidence.
1129 A separate issue arising from the conference with Mr Rumore and the Crown’s
reliance on it in proof of the sixth act of misconduct is the information recorded
in Mr Rumore’s file note. In Mr Martin’s submission, the note allows for the
suggestion that “an EOI process would open at the end of July 2008 for two
Exploration Licences”1043 (emphasis added), giving rise to the possibility that
the file note was intended to refer to Authorisation 287 and Authorisation 342
adjacent to (and encroaching on) Cherrydale Park, both of which were due to
expire on 27 July 2008.1044
1041
T 1973, T 2880; MFI 181 p 101.
1042
Exhibit Q. The nine month gap between the penultimate conference held with Gerard Obeid and Mr
Rumore on 8 December 2008 and the final conference held with Mr Rumore and Moses Obeid on 22
September 2009 is not explained in the evidence. Nor was the extent, if any, of Mr Rumore’s involvement in
the Cascade Coal P/L stage of the Obeids’ pursuit of a joint venture, beyond the fact that on 22 September
2009 Moses Obeid informed him that Cascade Coal P/L had won the EL. See Exhibit Q p 4601.
1043
MFI 190 p 50.
1044
Exhibit AK.
5KIPGFD[#WUV.++
1130 Mr Rumore’s file note of the 23 July 2008 conference 1045 does not make any
reference to “two Exploration Licences”.1046 Neither is there any evidence
capable of establishing that any of the attendees at that conference
considering the possibility that Anglo Coal P/L’s holdings in the Bylong Valley
would be released to tender via an “E.O.I campaign”1047 once the relevant
Authorisations expired. The submission has no force for that reason.
The letters by Mr Grigor and Mr Irwin

1131 Three letters jointly drafted by Mr Grigor and Mr Brook (but ostensibly with Mr
Grigor as Chairman of Monaro Mining NL as the author) 1048 and a letter by Mr
Irwin, solicitor, to Mr Grigor, are also relied on by the Crown in proof of the sixth
act of misconduct. Each of those letters is said by the Crown to contain
confidential information as to the timeframe for the Mount Penny EOI which, on
the Crown case, was information conveyed to Mr Brook by Moses Obeid and
which sourced from Mr Macdonald in breach of his duty of confidentiality.
Mr Grigor’s letters
1132 On 22 July 2008, Ms Adaley from Monaro Mining NL emailed a letter to Mr
Brook in his capacity as a Senior Vice President at Lehman Brothers at Mr
Grigor’s request. The letter, written by Mr Grigor,1049 relevantly stated that
“Monaro is seeking the support of Lehman Brothers to tender for certain
thermal and coking coal tenements, which are expected to be promoted via a
closed tender process within the next 30 days” (emphasis added).1050
1133 That letter was preceded by two drafts prepared earlier the same day. The first
draft was sent by Mr Grigor to Mr Brook. The second draft was sent in
response by Mr Brook. It incorporated various edits.1051 The first draft
referenced “coking and thermal coal licences” which were “to be made
available for closed tender within the next month”.1052 The second draft
referenced “certain thermal and coking coal tenements which are expected to
1045
Exhibit Q pp 1251-1252.
1046
MFI 190 p 50.
1047
Exhibit Q p 1252.
1048
The “false paper trail” correspondence – the significance of which see later at par 1482 and following.
1049
Exhibit A p 1177.
1050
Exhibit A p 1179.
1051
Exhibit A pp 1167, 1171.
1052
Exhibit A p 1169.
5KIPGFD[#WUV.++
be promoted via a closed tender process within the next 30 days” (emphasis
added).1053
1134 Mr Rumore’s file note of the 23 July 2008 conference contained a reference to
that letter.1054
1135 Mr Grigor gave evidence that the information in the letter as to the timeframe
for the release of “coal tenements” was provided to him by Mr Brook. 1055 Mr
Brook confirmed that he provided Mr Grigor with that information,1056 having
received information from Moses Obeid that “there were tenders imminently
going to be put up by the Government”.1057 With respect to the reference in the
first draft letter to a “closed tender within the next month”, Mr Brook gave
evidence he “relayed that information to Monaro Mining on the basis of… what
Moses Obeid had told” him.1058 There is no evidence as to when Mr Brook was
given that information by Moses Obeid.
Mr Irwin’s letter
1136 On 23 July 2008, at 9:08pm, Mr Irwin, solicitor, sent an email to Mr Grigor.
Attached to the email was a letter confirming Mr Grigor’s instructions for Mr
Irwin to act on behalf of Monaro Mining NL which included the following:
We understand that the NSW Government is planning to tender two

exploration licences 1059… in NSW by inviting expressions of interest during the
week commencing 28 July 2008.1060 (Emphasis added.)
1137 Mr Grigor gave evidence that the information he conveyed to Mr Irwin came
from Mr Brook.1061 Mr Brook gave no evidence about the provenance of that
information.
1053
Exhibit A p 1173.
1054
Exhibit A p 1179. Mr Brook gave evidence the letter was created with input from him and Mr Grigor and
was designed to create the appearance that it was Monaro Mining NL which approached Lehman Brothers
(rather than the other way around) in order to protect the anonymity sought by the Obeids as landowners and
also in light of the fact that the Obeids were not clients of Lehman Brothers (T 2857, T 2865).
1055
T 1791-1792.
1056
T 2879.
1057
T 2879.
1058
T 2879.
1059
Mr Grigor gave evidence that the two ELs were “Mount Penny and Yarra -whatever” (T 1800 - clearly a
reference to Yarrawa, one of the eleven small to medium areas ultimately released as part of the EOI
Information Package in September 2008). In cross -examination, Mr Brook gave evidence he discussed Yarrawa
as a “project” with Moses Obeid “much later” (it can be readily inferred) than when they discussed Mount
Penny (T 3193).
1060
Exhibit A p 1295.
5KIPGFD[#WUV.++
The source of the information provided by Mr Brook

1138 Mr Neil submitted in closing that there was an available inference that Mr Brook
was the source of the timeframe information in respect of Mount Penny, having
received that information from his own contacts in the mining industry or
another source altogether.
1139 Where the evidence of each of Mr Mullard,1062 Dr Sheldrake,1063 Ms

Moloney1064 and Mr Gibson1065 was that they did not provide a copy of the EOI
Areas document or the timeframe information it contained to anyone outside
the Department or the Minister’s office, and where Mr Coutts gave evidence
the timeframe for the EOI process was not publicly available,1066 there is no
evidential basis to support the drawing of that inference.
1140 The far more compelling inference remains, in my view, that it was Moses
Obeid who was the source of the information Mr Brook relayed to Mr Grigor,
despite there being no evidence as to when that occurred.
1141 The question remains whether that finding is capable of supporting the further
finding that Moses Obeid provided Mr Brook with information that “the EOI
process for Mount Penny was to commence at the end of July 2008”,1067 the
specific confidential information the subject as the sixth act of misconduct.
1142 Further doubt attends proof of the sixth act of misconduct by the various
inconsistencies between the documents which contain information as to the
timeframe for the Mount Penny EOI:
(1) Mr Grigor’s letter to Mr Brook on 22 July 2008 referenced “thermal and

coking tenements, which are expected to be promoted via a closed
tender process within the next 30 days” (emphasis added).1068
(2) Mr Rumore’s file note of the 23 July 2008 conference records that the
“date of the opening” of the government’s “EOI campaign” was 29 July
2008 (emphasis added).1069
1061
T 1801.
1062
T 713.
1063
T 2334.
1064
T 2266.
1065
T 2487.
1066
T 358.
1067
MFI 134/1.
1068
Exhibit A p 1179.
1069
Exhibit Q p 1252.
5KIPGFD[#WUV.++
(3) Mr Irwin’s letter to Mr Grigor on 23 July 2008 included information that

the EOI invitation would be issued during the week commencing 28 July
2008 (emphasis added).1070
1143 Those inconsistencies necessarily raise doubts as to whether that information
originated from the same source and, even if it did, whether the terms of the
information conveyed by Moses Obeid to Mr Brook, then from Mr Brook to Mr
Grigor and finally to Mr Irwin, sourced from the confidential information
particularised as the subject of the sixth act of misconduct.
1144 As I have noted above, in the absence of any direct evidence that Mr
Macdonald provided the timeframe information to Edward Obeid or Moses
Obeid, the Crown relied necessarily on information conveyed by Moses Obeid
to Mr Rumore and to Mr Brook, then by Mr Brook to Mr Grigor, then by Mr
Grigor to Mr Irwin. The probative weight of that evidence in establishing that
the information sourced from Mr Macdonald diminishes the wider the net of
communication is cast. The inconsistencies that emerge in the substance of
the information conveyed also raises questions as to the precise content of the
confidential information which Mr Macdonald is alleged to have conveyed to
Edward Obeid or Moses Obeid in breach of his duties and obligations of
confidentiality and impartiality.
1145 In my view, the lack of specificity in Mr Grigor’s letter set out at (1) above is
readily explained by the purpose for which I am satisfied that letter was
prepared, namely to create the false impression that Monaro Mining NL
approached Lehman Brothers, ostensibly to protect the Obeids’ desire to
remain anonymous. However, the significance of the difference between the
information captured in Mr Rumore’s file note in (2) above and Mr Irwin’s letter
in (3) above deepens when Mr Martin and Mr Neil submitted that the timeframe
nominated in the EOI Areas document for the Mount Penny EOI was inherently
ambiguous, leaving open a construction that the EOI process would open at
the end of September (2008) for a period of 8 weeks, which was broadly
consistent with the start date for the EOI process which ultimately came to
pass.1071
1070
Exhibit A p 1295.
1071
MFI 190 p 50. See MFI 192 p 156.
5KIPGFD[#WUV.++
1146 Mr Martin and Mr Neil advanced the further submission that the inherent
ambiguity in the EOI Areas document rendered the timeframe information so
uncertain that Mr Macdonald would have been unlikely to have conveyed it with
the certainty that is implicit in the Crown case, particularly in circumstances
where the timeframe proposed was implausible and was extended by almost
two months in any event.1072
Is the sixth act of misconduct established?

1147 As contended for by the Crown, I am satisfied that the EOI Areas document
was intended to convey the views of the DPI as at 16 June 2008 that the “EOI
Period” would commence at the end of July 2008, immediately following the
four week period allocated for the preparation of “EOI information and data”. 1073
1148 On the basis of Mr Gibson’s evidence, I am also satisfied that at the 17 June
2008 meeting, Mr Macdonald was seeking to expedite the EOI process for
“Mount Penny”,1074 assuming he knew that information was contained in the
EOI Areas document, he must have considered it feasible for the Mount Penny
Coal Release Area to be released to tender at the end of July 2008.1075
1149 What I consider to be fatal to proof of the sixth act of misconduct is that the
information conveyed to Mr Rumore, Mr Brook, Mr Grigor and Mr Irwin in late
July was not current information. On 7 July 2008, that is, prior to the 23 July
Rumore conference, Mr Macdonald was provided with updated information
from the DPI 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 2008.1076
1150 Mr Neil submitted that:
[Mr] Macdonald would clearly have known well before Moses Obeid met
Rumore on 23 July 2008 that the process was not going to be released at the
end of July 2008. If there was a Crown conspiracy as alleged, Moses Obeid
would have known on 23 July 2008 (if anything) that November 2008 was the
contemplated release date.1077
1072
See for example Exhibit A pp 1011, 1099, 1101.
1073
Exhibit A p 946.
1074
T 2485.
1075
MFI 192 p 156.
1076
Exhibit A p 1099, 1011; T 2390; MFI 190 p 51.
1077
MFI 192 p 157.
5KIPGFD[#WUV.++
1151 While the Crown does not seek to make the case that Mr Macdonald availed
himself of every opportunity to provide Edward Obeid or Moses Obeid with
every piece of confidential information pertaining to the upcoming EOI process
in respect of Mount Penny, it does appear to me to be something of an
anomaly that if he provided the DPI’s earlier (possible) timeframe for the Mount
Penny EOI process he would not update that information when a new
timeframe was proposed.
1152 It does not necessarily tell against proof of the conspiracy alleged that Mr
Macdonald neglected to update the Obeids as to the amended timeframe.
However, what does emerge clearly from the evidence directly bearing upon
proof of the sixth act of misconduct is a lack of precision or consistency in the
information the Crown alleged Mr Macdonald provided. While that does not
necessarily undermine proof of the Crown case, the vast ambiguities in the
evidence remain, in my view, deeply problematic in the Crown establishing the
sixth act of misconduct, as particularised.
1153 In my view, the evidence at various critical points in the chain of

communication set out above, together with the nature of the timeframe
information itself, is such that I am unable to rely on that evidence to resolve
the doubts that persist as to whether (and when) Mr Macdonald received the
EOI Areas document and/or, if he did, whether he had any expectation that the
information it contained meant that the “Mount Penny EOI” was to be released
at the end of July 2008. Whether Moses Obeid did provide that same
information to each of Mr Rumore and Mr Brook is another source of doubt as
is the final and critical question, whether the evidence establishes, by
inference, that Mr Macdonald provided that information to Edward Obeid or
Moses Obeid in breach of his duties of confidentiality and impartiality.
1154 I am not satisfied that the sixth act of misconduct is established.
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
5KIPGFD[#WUV.++
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,1078 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.
The timing and significance of Mr Rumore being retained to act for the Obeid
family on 23 June 2008
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.1079
1157 Although Moses Obeid was not present at that conference, by 30 June 2008
Mr Rumore regarded his clients as “the three Obeid brothers but predominantly
Moses [Obeid]”.1080 After the 23 June 2008 conference, additional conferences
were convened on 30 June 2008, 2 July 2008, 18 July 2008, 23 July 2008, 25
July 2008, 11 August 2009, 24 September 2008, 6 November 2008, 7
1078
See earlier at pars 284-291 where I note the Crown’s general submission concerning Mr Macdonald’s
communication of information to Edward Obeid and Moses Obeid.
1079
1080
T 1952, 1937.
5KIPGFD[#WUV.++
November 2008, 8 December 2008 and 22 September 2009. 1081 All additional
conferences were attended by Moses Obeid, with the exception of the
conferences convened on 24 September 2008, 7 November 2008 and 8
December 2008. During that timeframe, Mr Rumore also prepared written
advice from time to time which was largely incorporated in his email
correspondence copied to each of Moses Obeid, Gerard Obeid and Paul
Obeid.1082
1158 At the initial conference Mr Rumore was instructed that the properties to be
purchased under a “Heads of Agreement” with the Boyds would be managed
and operated as farming and grazing properties up to and including any mining
being undertaken on the land, were that to occur in the future.1083 Consistent
with those instructions Mr Rumore’s file notes of the conference record
“farming/rural (cattle + crops)”. That evidence appears to be consistent with the
instructions Mr Adlington received on 23 June 2008 to prepare a contract for
the sale of Coggan Creek by way of a $50,000 option to purchase part of that
property for $3.25 million.1084
1159 Mr Rumore was also informed, told or advised at the initial conference
(although he could not nominate who of Paul Obeid or Gerard Obeid provided
instructions about any of the aspects of the arrangements under discussion)
that it was their view that “once EOI issues re coal lease, land value increases
many fold (3 or 4 times)”.1085 Mr Rumore explained that aspect of his file note.
He said that he was told that there was a possibility of coal leases being
granted and that the property values would “significantly increase” were that to
occur.1086 Further, he said that he was told that in the event that a mining
company took an interest in only one of the properties, his clients were
interested in undertaking negotiations with that company for the sale of all
three properties and, for that reason, they were keen to ensure that everything
was handled “in concert”.1087 Possible commercial structures to achieve that
1081
Exhibit Q.
1082
1083
Exhibit Q p 995; T 2043.
1084
Exhibit A p 1009.
1085
Exhibit Q p 995.
1086
T 2102.
1087
T 2013.
5KIPGFD[#WUV.++
outcome were discussed,1088 including the use of a special purpose vehicle to

hold two-thirds of the value of the properties on trust for the Obeids;1089 that “a
unit trust would buy the properties”; and Equitexx Pty Limited (Equitexx P/L),
an “Obeid company,” would hold the units in that trust for the Obeids. 1090
1160 Mr Neil submitted that the inference to be drawn from Mr Rumore’s evidence
and his file note of the 23 June 2008 conference was that the Paul (and Gerard
Obeid) were at that time contemplating that Anglo Coal P/L might purchase the
three properties, consistent with what Moses Obeid had told Mr Shanahan and
Ms Jiminez, journalists, in December 2012 concerning what he described to
them as a “real and present threat” to the family’s quiet enjoyment of
Cherrydale Park should Anglo Coal P/L renew Authorisation 287. 1091 Not only
does that submission fail to confront the fact that Mr Rumore gave categorical
evidence that Anglo Coal P/L was not mentioned at the 23 June 2008
conference (which I should add is inconceivable if the threat were “real” and
“present”), it is a submission that carries no weight at this point in my
deliberations to verdict for other reasons. As I have already made clear, and for
reasons already developed at length, I am well satisfied that by 23 July 2008
Mr Macdonald had informed either or both of Edward Obeid and Moses Obeid
of the DPI’s designation of the Mount Penny Coal Release Area and its
pending inclusion as Area 7 in an EOI process for the granting of an EL. 1092
1161 Although (as I have noted at an earlier stage in my deliberations) the Crown
does not allege that Cherrydale Park was purchased by the Obeid family as an
act in furtherance of the conspiracy, there is very considerable force in the
Crown’s submission that the renewed interest of Moses Obeid and his brothers
in purchasing the neighbouring properties Donola and Coggan Creek in June
2008 and, in particular, Moses Obeid’s later instructions to Mr Rumore on 21
July 2008 to review the necessary contracts to facilitate that objective, 1093 was
conduct in which he engaged in furtherance of the conspiracy and a source of
1088
T 2043.
1089
Exhibit Q p 996.
1090
Exhibit Q pp 996-997; T 1949.
1091
MFI 192 p 224.
1092
See par 1155.
1093
5KIPGFD[#WUV.++
direct evidence of Moses Obeid’s knowing participation in that conspiracy. 1094

The Crown also submitted that Edward Obeid’s knowledge of those
arrangements (as he made clear in his interview with the journalists in 2012,
albeit disclaiming at that time any plan to exploit the land for coal mining)
together with his position as “the head” of the Obeid family constitutes
compelling evidence of his participation in the conspiracy.
1162 The Crown advanced the further submission that steps were taken by both
Edward Obeid and Moses Obeid in 2008 and 2009 to “distance” the Obeid
family from any continuing association with land at Mount Penny or the Bylong
Valley. Those steps included Moses Obeid’s pursuit of third party purchasers
amongst his friends and associates to be the registered proprietors of each of
those properties and the determined efforts by Edward Obeid to change the
ownership of Cherrydale Park from Locaway P/L to UPG P/L.
1163 I will deal with the evidence relied upon by the Crown in support of those
submissions later.1095
“Tianda” and Mr Fang are introduced to Moses Obeid who then introduces
them to Mr Rumore
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
1094
MFI 134/1 p 7; MFI 181 p 14.
1095
1096
Exhibit Q p 1040.
5KIPGFD[#WUV.++
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”.1100
1166 Mr Fang’s unavailability as a witness to give evidence in the trial within the
meaning of s 65 of the Evidence Act was the subject of an interlocutory ruling
in which the Crown’s application to tender extracts from Mr Fang’s evidence in
proceedings before ICAC on 3 February 2013 pursuant to ss 65(1) and 65(3) of
the Evidence Act was refused.1101 I remained satisfied, however, that the
Crown should be permitted to advance the submission at trial that Mr Fang’s
involvement with Moses Obeid, as at 30 June 2008, was because Mr
Macdonald introduced them to each other to discuss the prospect of a coal
mining project. At that time, I was not satisfied there was sufficient evidence to
permit the inference to be drawn that Edward Obeid was the conduit through
which that introduction took place. As I saw it, the comprehensive call charge
records assembled in a schedule marked MFI 21 in the pre-trial hearing (the
information ultimately tendered in the trial as Exhibit U) included direct
telephone contact between Moses Obeid and Mr Macdonald before and after
30 June 2008, displacing the need for Edward Obeid to be directly involved in
the negotiations or discussions about the potential for Tianda Resources P/L to
engage in a joint venture with his family which, on the view I took of the
evidence at that time, was almost exclusively Moses Obeid’s province.
1167 In light of that ruling, the Crown sought to establish through other evidence
adduced at the trial that it was Mr Macdonald who introduced Mr Fang to
Moses Obeid, an introduction that ultimately led to Mr Fang being included in
the meeting at Mr Rumore’s office on 30 June 2008.1102
1097
Exhibit Q p 1045.
1098
Exhibit Q p 1045.
1099
Exhibit Q p 1041.
1100
Exhibit Q p 1045.
1101
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286 at [ 60].
1102
Exhibit Q p 1045; Exhibit U.
5KIPGFD[#WUV.++
The initiation of contact between Mr Fang and Moses Obeid

1168 On 30 June 2008, Mr Fang attended a conference with Mr Rumore, Moses
Obeid, Gerard Obeid and Paul Obeid.1103
1169 The Crown submitted that I would be satisfied as a matter of inference that,
prior to that conference Mr Macdonald arranged to introduce Mr Fang to Moses
Obeid in order that they might discuss the prospect of a mining project
associated with the pending release of the Mount Penny Coal Release Area in
an EOI process for the grant of an EL. In developing that submission, the
Crown relied upon other evidence in the trial where Mr Macdonald had
introduced Mr Fang to other coal mining companies who may wish to invest in
coal mining in New South Wales, including in relation to the grant of the
Watermark EL in 2008.1104
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.1105
1171 The following periods of concentrated communication (or assumed

communication) between each of the accused and Mr Fang during that period
were relied on by the Crown. The entries in italics are, in my view, of particular
relevance.
(1) On 3 June 2008:

(a) At 2:55pm, Mr Fang called Mr Macdonald (16 seconds) 1106
(2) On 4 June 2008 (the day of the 4 June 2008 meeting between Mr
Macdonald and the DPI):
1103
1104
T 237-8, 1347-8.
1105
MFI 181 par 294.
1106
Exhibit U p 37.
5KIPGFD[#WUV.++
(a) Moses Obeid called Edward Obeid at 10:09am (4 minutes and

1 second)
(b) Moses Obeid called Edward Obeid at 2:38pm (20 seconds)
(c) Edward Obeid called Mr Macdonald at 4:29pm (9 seconds)
(d) Mr Macdonald had a scheduled meeting with Mr Fang at 5pm 1107
(e) Edward Obeid called Moses Obeid at 5:16pm (26 seconds)
(f) Mr Macdonald called Edward Obeid at 8:45pm (2 minutes and 30
seconds)1108
(3) On 6 June 2008 (the day of the 6 June 2008 meeting between Mr
Macdonald and the DPI):
(a) Edward Obeid left a voicemail for Moses Obeid at 7:55am (20
seconds)
(b) Moses Obeid called Edward Obeid at 9:05am (11 minutes and
53 seconds)1109
(c) Mr Macdonald had a scheduled meeting with Mr Fang at
11am1110
(4) On Thursday 26 June 2008:
(a) Moses Obeid called Edward Obeid at 8:09am (13 seconds)
(b) Moses Obeid called Edward Obeid at 10:01am (20 seconds)
(c) Mr Macdonald had a scheduled meeting with Mr Fang at 1pm 1111
(d) Moses Obeid called Edward Obeid at 5:48pm (30 seconds)
(e) Mr Macdonald called Mr Fang at 5:49pm (30 seconds) 1112
(5) On Friday 27 June 2008:
(c) Mr Macdonald called Mr Fang at 11:44am (30 seconds)
(d) Edward Obeid called Mr Macdonald at 12:19pm (30 seconds)
(e) Moses Obeid called Edward Obeid at 4:19pm (2 minutes and
5 seconds)
(f) Moses Obeid called Edward Obeid 5:28pm (11 seconds)
1107
Exhibit A p 879.
1108
Exhibit U p 37.
1109
Exhibit U p 37.
1110
Exhibit A p 889.
1111
Exhibit A p 1037.
1112
Exhibit U p 39.
5KIPGFD[#WUV.++
(g) Mr Macdonald called Mr Fang at 5:48pm (2 minutes and

30 seconds)1113
(6) On Monday 30 June 2008:
(a) Mr Fang attended a conference with Mr Rumore, Moses Obeid,
Gerard Obeid and Paul Obeid.1114 Although there is no evidence
as to the time that conference was held, I assume it was after the
calls in (b) and (c)(i) and probably (ii).
(c) The following concentrated communication occurred:
(i) Moses Obeid sent a text message to Mr Fang at 8:30am.
On Crown case, this is the first instance of phone contact
between Moses Obeid and Mr Fang. There is no direct
evidence of how he had Mr Fang’s telephone number and
no evidence of the content of the text message.
(ii) Mr Fang called Moses Obeid at 10:38am (1 minute and
42 seconds)
(iii) Half an hour later, Mr Fang called Mr Macdonald at
11:18am (1 minute and 43 seconds)
(d) Edward Obeid called Moses Obeid at 11:52am (4 seconds)
(e) Within an hour, Edward Obeid called Mr Macdonald at 12:40pm
(1 minute and 13 seconds)
(f) Edward Obeid called Moses Obeid at 12:59pm (7 seconds)
(g) Mr Macdonald called Edward Obeid at 1:46pm (30 seconds)
(h) Moses Obeid called Edward Obeid at 2:06pm (15 seconds) and
at 2:28pm (26 seconds)
(i) Mr Macdonald called Mr Fang at 4:10pm (30 seconds) and at
5:30pm (30 seconds)
(j) Moses Obeid called Edward Obeid at 5:41pm (41 seconds)
(k) Edward Obeid called Mr Macdonald at 7:05pm (30 seconds) 1115
(7) On 1 July 2008:
(a) Edward Obeid left a voicemail for Moses Obeid at 7:32am
(16 seconds)
(b) Moses Obeid called Edward Obeid at 7:33am (3 minutes and
46 seconds)
(c) Within ten minutes, Edward Obeid called Mr Macdonald at
7:39am (30 seconds) and at 8:28am (1 minute and 34 seconds)
1113
Exhibit U p 39.
1114
1115
Exhibit U p 39.
5KIPGFD[#WUV.++
(d) Moses Obeid called Edward Obeid at 9:07am (12 seconds)

(e) Edward Obeid called Moses Obeid at 10:28am (30 seconds)
(f) The following concentrated communication occurred:
(i) Mr Macdonald called Mr Fang at 1:21pm (30 seconds)
(ii) Less than ten minutes later, Edward Obeid called Mr
Macdonald at 1:29pm (30 seconds)
(iii) Less than five minutes later, Edward Obeid called Moses
Obeid at 1:33pm (1 minute)
(iv) Moses Obeid called Edward Obeid at 3:28pm
(47 seconds)
(v) Within fifteen minutes, Moses Obeid called Mr Fang at
3:42pm (1 minute and 11 seconds)
(vi) Mr Fang called Mr Macdonald at 5:23pm (15 seconds)
(vii) Mr Macdonald called Mr Fang at 5:34pm (30 seconds), at
5:55pm (30 seconds) and at 5:58pm (30 seconds)
(viii) Within ten minutes of the latest of those calls, Mr
Macdonald called Edward Obeid at 6:05pm (30 seconds)
(ix) Less than half an hour later, Moses Obeid called Mr Fang
at 6:20pm (4 minutes and 16 seconds)
(g) Just over an hour later, Moses Obeid called Edward Obeid at
7:35pm (14 seconds) and at 9pm (53 seconds)
(h) 16 minutes later, Mr Macdonald called Edward Obeid at 9:16pm
(1 minute)1116
(8) On 2 July 2008:
(a) Edward Obeid called Moses Obeid at 6:50am (1 minute)
(b) Mr Fang called Moses Obeid at 12:26pm (2 minutes and
22 seconds) and at 5:09pm (14 seconds)
(c) Mr Fang left Moses Obeid a voicemail at 5:12pm (18 seconds)
(d) Moses Obeid called Mr Fang at 5:13pm (5 minutes and
41 seconds)1117
(9) On 3 July 2008 (the date of the first Wentworth Hotel meeting):
(b) One minute later, Moses Obeid sent a text message to Mr Fang
at 7:18am
1116
Exhibit U p 39.
1117
Exhibit U pp 39-40.
5KIPGFD[#WUV.++
(c) Edward Obeid called Mr Macdonald at 9:26am (30 seconds) and

at 11am (35 seconds)
(d) Mr Fang called Moses Obeid at 11:13am (4 minutes and
52 seconds), the call of the longest duration
(e) Moses Obeid called Mr Fang at 11:36am (1 minute and
45 seconds)
(f) Three minutes later, Moses Obeid called Edward Obeid at
11:39am (16 seconds) and again at 11:40am (1 minute)
(g) One minute later, Moses Obeid called Mr Fang at 11:41am
(2 minutes and 51 seconds)
(h) Edward Obeid called Mr Macdonald at 11:51am (30 seconds)
(i) Approximately 15 minutes later, Edward Obeid called Moses
Obeid at 12:07pm (20 seconds) and again at 12:11pm (1 minute
and 9 seconds) and 12:23pm (30 seconds)
(j) Within half an hour, Moses Obeid sent a text message to Mr
Fang at 12:49pm
(k) Just over ten minutes later, Moses Obeid called Edward Obeid at
1:01pm (37 seconds)
(l) Edward Obeid called Moses Obeid at 2:06pm (28 seconds)
(m) Mr Fang called Moses Obeid at 2:18pm (2 minutes)
(n) Mr Macdonald called Edward Obeid at 2:56pm (30 seconds) and
at 3pm (6 minutes and 30 seconds)
(o) Within an hour, Edward Obeid called Moses Obeid at 3:55pm (30
seconds)
(p) Mr Macdonald called Mr Fang at 4:02pm (1 minute and
30 seconds) and 5:32pm (30 seconds)
(q) Edward Obeid called Mr Macdonald at 5:54pm (1 minute)
(r) Edward Obeid called Moses Obeid at 7:24pm (1 minute)
(s) Mr Macdonald called Edward Obeid at 10:27pm (30 seconds) 1118
(10) On 4 July 2008:
(a) Edward Obeid left Moses Obeid a voicemail at 7:51am
(20 seconds)
(c) Mr Macdonald called Edward Obeid at 7:56am (9 minutes)
(d) Edward Obeid called Mr Macdonald at 8:43am (30 seconds)
1118
Exhibit U p 40.
5KIPGFD[#WUV.++
(e) Mr Macdonald called Edward Obeid at 8:48am (2 minutes and 30

seconds)
(f) The following concentrated communication occurred:
(i) Mr Fang called Moses Obeid at 9:02am (2 minutes and
7 seconds) and at 9:52am (1 minute and 42 seconds)
(ii) A few minutes later, Moses Obeid called Edward Obeid at
9:55am (24 seconds)
(iii) Moses Obeid then immediately called Mr Fang at 9:56am
(1 minute and 11 seconds)
(g) Mr Macdonald called Edward Obeid at 10:15am (1 minute)
(h) Moses Obeid called Mr Fang at 10:59am (46 seconds)
(i) Edward Obeid called Moses Obeid at 11:45am (30 seconds)
(j) Moses Obeid called Edward Obeid at 11:52am (1 minute and
1 second)
(k) Edward Obeid left Moses Obeid a voicemail at 12:36pm
(21 seconds)
(l) Moses Obeid called Edward Obeid at 1:17pm (20 seconds) and
at 1:36pm (12 seconds)
(m) Mr Macdonald called Edward Obeid at 1:43pm (30 seconds)
(n) Mr Macdonald called Mr Fang at 3:06pm (1 minute and
30 seconds)
(o) Mr Fang called Mr Macdonald at 3:55pm (1 minute and
11 seconds)
(p) Mr Macdonald called Mr Fang at 4:16pm (30 seconds)
(q) Edward Obeid left voicemails for Moses Obeid at 8:36pm
(16 seconds) and 9:45pm (20 seconds)
1172 In closing submissions, both Mr Martin and Mr Neil advanced alternate (and
innocent) explanations for the degree of contact between Mr Fang and Moses
Obeid and Mr Macdonald that was given emphasis by the Crown.
1173 Mr Martin submitted that no adverse inference should be drawn from the
regular phone contact between Mr Fang and Mr Macdonald where the
evidence established that they regularly collaborated in relation to the Sydney
Symphony Orchestra and fundraising for earthquake relief in China. 1119
1119
MFI 190 p 23.
5KIPGFD[#WUV.++
1174 Mr Neil submitted that the evidence of contact between Mr Fang and Moses
Obeid should be disregarded in circumstances where Mr Fang is “unavailable
to be called as a witness and there is no evidence from him about his
relationship with Moses Obeid, the extent of any phone contact and his phone
numbers used from time to time”.1120 Referring to R v Macdonald; R v Edward
Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286 at [76], Mr Neil also
submitted that in circumstances where the Crown only relied on Mr Fang’s
phone records for 2008, the Crown cannot make good the submission that the
first telephone contact between Moses Obeid and Mr Fang was on 30 June
2008, that is, the Crown cannot exclude the possibility that they already knew
one another prior to 2008.1121
1175 Mr Neil also submitted that the Crown’s contention that Mr Macdonald
introduced Mr Fang and Moses Obeid should be rejected as contrary to the
evidence. In his submission, Mr Fang’s prominence in the Sydney business
community gave rise to the obvious and competing possibility that “any number
of people” could have facilitated the introduction.1122 Mr Neil further submitted
that the initiation of contact between Mr Fang and Moses Obeid on 30 June
2008 was “easily explicable”, absent any introduction by Mr Macdonald, on the
basis that the arrangement contemplated by the Obeids with the Boyd family
was, at least by 30 June 2008, if not earlier, unlikely to proceed and that Moses
Obeid was seeking out other potential contracting parties.1123 Mr Neil further
submitted that even were I to draw the inference that it was Mr Macdonald who
made the relevant introduction, there is no evidence as to the context in which
that introduction occurred and, that being the case, the Crown could not
exclude the reasonable possibility that it was made by Mr Macdonald on the
basis of his perception of a common personal or professional interest shared
by Mr Fang and Moses Obeid, completely independent of the pending EOI
process for the release of Mount Penny for coal exploration.
1176 In my view, Mr Neil’s submissions as to what he contended was the reasonable

possibility, not excluded by the Crown, that Mr Fang and Moses Obeid knew
1120
MFI 192 p 272.
1121
MFI 192 p 272.
1122
MFI 192 p 227.
1123
MFI 192 p 227.
5KIPGFD[#WUV.++
each other prior to 2008 or that they could have been introduced by someone
other than Mr Macdonald do not adequately address the significant increase of
closely timed phone contact between the accused and Mr Fang in late June
and early July 2008 in circumstances where Mr Fang and Moses Obeid
continued to engage in commercial negotiations from 30 June 2008. 1124
1177 Significantly, on the day of the 30 June 2008 conference with Mr Rumore, Mr
Fang, Mr Macdonald and Moses Obeid were variously in telephone contact,
with the SMS sent by Moses Obeid to Mr Fang, followed by a phone call from
Mr Fang to Moses Obeid two hours later, being the first recorded instance of
telephone contact between them in the Telephone Summary.1125 Mr
Macdonald and Moses Obeid were also both variously in contact with Edward
Obeid that day.1126
1178 On the evening of 2 July 2008, a further conference was convened at Mr

Rumore’s offices attended by Moses Obeid, Gerard Obeid, Paul Obeid and Mr
Fang. Mr Rumore was informed that it had been agreed that Great Western
Coal Pty Ltd (GWC P/L) would be a new company set up by “Unen Coal”
(sic)1127 to “bid for the mining tenements” (as Mr Rumore expressed it in his
evidence),1128 with the Obeids being granted the option to take up 30% of
GWC P/L were it to secure the right to mine for coal.1129
1179 The contractual terms and the structure contemplated by this new arrangement
with Tianda Resources P/L remained outstanding at the end of the 2 July
meeting.1130 Mr Rumore noted in his follow-up email the next morning 1131 that
the Obeids were to obtain the “purchase contracts” for Coggan Creek and
Donola, it being Mr Rumore’s understanding that contracts for the sale of those
properties had issued in the context of the potential for the Boyds to acquire
1124
1125
Exhibit U p 39.
1126
Exhibit U.
1127
T 2039.
1128
T 1957.
1129
T 1956-1957, 1961. A document was prepared by Mr Rumore to reflect the agreement. The document is
written in such a way that the option terms are contingent on GWC P/L successfully tendering for a right to
mine on the three properties and contemplates that the Obeids will “provide assistance to prepare and lodge
the tender with the Government by way of consideration.”
1130
Exhibit A p 1059.
1131
Exhibit A p 1059.
5KIPGFD[#WUV.++
the properties as part of what had been the Heads of Agreement with the
Obeids, an arrangement that had since lapsed.
1180 Negotiations between Mr Fang on behalf of Tianda Resources P/L and the
Obeids continued through the first half of July 2008.1132 Ultimately, on 18 July
2008, at a further conference attended by Mr Rumore, Moses Obeid and
Gerard Obeid, Mr Rumore was informed that the contemplated deal with
“Tianda” was “off”.1133
Mr Fang’s further dealings in relation to the Mount Penny area

1181 For completeness, although not as I see it probative of the facts in issue in the
trial, I note that Mr De Ross, General Manager of Tianda Resources P/L, gave
evidence that in October 2008, prior to Tianda Resources P/L submitting an
application for the grant of an EL at Spur Hill, Goonbri and Vickery South,
under the same EOI process that included Mount Penny, Mr Fang asked him to
“have a closer look at Mount Penny”, indicating that “it might be possible to
purchase the land of that area which might make a difference to the ability to
mine the area”.1134 Mr Fang did not explain to Mr De Ross why that possibility
arose at that time and did not provide any information as to the identity of the
landowners from whom the land around Mount Penny might be purchased.
1182 In response to Mr Fang’s request, Mr De Ross reviewed the information

relating to the Mount Penny Coal Release Area but did not change his original
assessment that it was of “less value” than the areas already selected by
Tianda Resources P/L as suitable areas for coal exploration under licence. 1135
1183 On 21 October 2008, a conference was scheduled with Mr Rumore, Moses

Obeid and Warwick Lui of Tianda Resources P/L.1136 After the conference, Mr
Lui sent an email to Mr Rumore asking for a copy of a document in relation to
the “extension of [the] call option period and revised settlement date” (clearly a
reference to Coggan Creek).1137
1132
Exhibit Q pp 1083, 1089, 1115.
1133
Exhibit Q p 1143.
1134
T 1355.
1135
T 1356.
1136
1137
Exhibit A p 2341.
5KIPGFD[#WUV.++
1184 On 22 October 2008, Mr Lui sent an email to Moses Obeid which read as
follows:
Further to our phone conversation today morning [sic], please advise me if

Monaro Mining has formed a joint venture (or any entity) with other 3rd party to
submit bid for the coal mine in Mt. Penny? If not yet, when will it be formed?
If possible, please send me the valuation report of the land by email. 1138
1185 On 23 October 2008, Tianda Pharmaceuticals Pty Ltd instructed the law firm
Shaw Reynolds Bowen and Gerathy Lawyers in a matter described in the
records of that firm as “Option – O’Brien” and “Property Coggan Creek Wollar
Road”. The file was archived on 22 September 2009 and marked as
completed/settled on 9 December 2009.1139
Did Mr Macdonald introduce Mr Fang and Moses Obeid?

1186 The Crown accepted that the evidence comprising the Telephone Summary,
including the evidence of phone contact between the accused and Mr Fang in
late June and early July 2008 set out above, went no higher than presenting
the opportunity for the relay of information. While there is some weight in Mr
Martin’s submission that Mr Macdonald would have been, at that time,
communicating about their collaborations with the Sydney Symphony
Orchestra and earthquake relief in China, in my view, even if the overall
frequency of communication between Mr Fang and Mr Macdonald is capable of
being partially explained in the way contended for by Mr Martin, given the
timing of the commencement of communication between Moses Obeid and Mr
Fang, together with the frequency of communication between Mr Macdonald
and Mr Fang, Mr Macdonald and Edward Obeid, and Edward Obeid and
Moses Obeid, and where calls between those pairings were on multiple
occasions coterminous, there is a compelling inference that the prospect of a
mining project was being discussed, in at least some of those calls.
1187 With respect to Mr Neil’s submission that the Crown could not exclude the
possibility that Mr Fang and Moses Obeid already knew one another prior to
2008,1140 again given the timing and frequency of telephone contact between
the accused and Mr Fang in late June and early July 2008, the far more
1138
Exhibit A p 2349.
1139
Exhibit N; Exhibit N1.
1140
MFI 192 p 272.
5KIPGFD[#WUV.++
compelling inference is that they were introduced to each other for the first
time, in that timeframe, by Mr Macdonald.
1188 To put it another way, it is difficult to conceive of the rational possibility that
around the time that Mr Fang attended a conference with Mr Rumore at Moses
Obeid’s invitation and where Mr Rumore was instructed that Tianda Resources
P/L was to “bid” for a “coal lease” relative to the three properties, including
Cherrydale Park, Moses Obeid would not have discussed that potentiality with
at least Edward Obeid, and probably Mr Macdonald, at a time where, as I have
already found, the Obeids’ interest in exploring the prospect of a joint venture
with a mining company had been piqued by Mr Macdonald providing
information concerning the creation of the Mount Penny Coal Release Area.
1189 I am satisfied that the confluence of the rapid upswing in communication

between the accused and Mr Fang in late June and early July 2008; Mr
Macdonald’s direction to the DPI that Tianda Resources P/L be invited to
participate in the EOI process which would include the Mount Penny Coal
Release Area,1141 and Mr Macdonald’s provision of the list of companies
including Tianda Resources P/L to Moses Obeid,1142 is highly probative of Mr
Macdonald’s appreciation that Moses Obeid was intent on pursuing the
commercial advantage from the Mount Penny Coal Release Area being
included in the pending EOI process.
1190 As the Crown submitted in closing:
The point, your Honour, in terms of what the Crown says is available in
support of proof of Ian Macdonald's appreciation, for instance, of improper
purpose, is that from time to time the Crown says there is evidence of Ian
Macdonald going further than just committing those acts of misconduct and
demonstrating an appreciation that commercial advantage was being sought
to be pursued from the prospective Mount Penny Coal Release Area. 1143
1191 I am satisfied that the strong probabilities favour me finding that Mr Macdonald
did introduce Mr Fang to Moses Obeid prior to the conference Mr Fang
attended with Mr Rumore, Moses Obeid, Gerard Obeid and Paul Obeid on 30
June 2008.1144 I am also satisfied that the introduction was for the purpose of
1141
T 835.
1142
Both facts established by the evidence relied upon in support of the seventh act of misconduct.
1143
T 3686.
1144
5KIPGFD[#WUV.++
the two men discussing the prospect of a mining project in relation to the EOI
process which, by that date, Mr Macdonald had informed the Obeids would
include a coal release area in the area of Mount Penny and in which, at Mr
Macdonald’s direction, Tianda Resources P/L would be invited to
participate.1145
1192 On 2 July 2008, Mark Morgan, solicitor for the Boyds, forwarded to Moses
Obeid various documents relating to the sale of Coggan Creek, including the
two call option agreements and pages 1-2 of each Contract for Sale. Moses
Obeid forwarded that email to Mr Rumore the following day.1146
1193 In the contract for sale for Donola executed on 6 August 2008, the words “M
MORGAN OR NOMINEE” appear crossed out next to the space for
“Purchaser” and are replaced by the handwritten text “GEBLE PTY LIMITED
AS TRUSTEE FOR ELBEG UNIT TRUST”.1147
The first Wentworth Hotel meeting between Mr Brook and Moses Obeid: 3 July
2008
1194 On 3 July 2008, Moses Obeid was introduced to Mr Gardner Brook by Mr Arlo
Selby at a scheduled meeting at the Wentworth Hotel in the Sydney CBD (the
first Wentworth Hotel meeting). This was the first of two meetings convened at
that hotel within a week. Moses Obeid and his brothers, Gerard Obeid and
Paul Obeid, attended the second meeting with Gardner Brook on 7 July 2008
(the second Wentworth Hotel meeting). Mr Selby was present throughout both
meetings. He was not called by the Crown. That being the case, there is no
evidence as to when Mr Selby approached Moses Obeid or Mr Brook to
schedule the first meeting, or what he believed, or was given to understand by
either of them, might be to their mutual advantage in meeting each other.
1195 What is clear, however, is that Moses Obeid was evidently willing to meet with
Mr Brook (at Mr Selby’s invitation) at a time when the potential for a structured
deal with the Tianda Group, through Moses Obeid’s dealings with Mr Fang,
were the subject of continuing consideration, presumably by both parties, albeit
at a time when the problematics of a successful project with Tianda Resources
1145
See later when the evidence in proof of the seventh act of misconduct is considered.
1146
Exhibit A p 1071.
1147
5KIPGFD[#WUV.++
P/L had been identified by Mr Rumore is an email sent to Moses Obeid and his
brothers on 3 July 2008 1148 after conferring with them the previous day. It is
also clear that despite the difficulties attending the structure of the deal with the
Tianda Group, and Mr Rumore’s advice to Moses Obeid identifying those
difficulties, under Moses Obeid’s instructions Mr Rumore continued to pursue
the contracts for the sale of Coggan Creek after he was advised that the Boyds
were no longer involved in the proposed acquisition of Coggan Creek or
Donola.1149
1196 As at 3 July 2008, Mr Brook was a Senior Vice President of the Asia Special
Situations Group of Lehman Brothers, working from the Sydney office. He was
first employed in that capacity in August 2007. The Sydney office was
established as part of the expansion of Lehman Brothers’ global business
when it acquired Grange Securities, a Sydney-based fixed income business
and former client of Lehman Brothers.
1197 Mr Brook’s role at Lehman Brothers was, inter alia, to identify either high yield
transactions in which Lehman Brothers’ might invest their own capital (as
opposed to a traditional investment banking model where finance was
arranged for client investors), or high yield transactions which might involve a
combination of investor funds and capital from Lehman Brothers’ balance
sheet.1150
1198 Mr Brook continued in that role until Lehman Brothers “collapsed” on 15

September 2008 upon the filing of a Chapter 11 petition for bankruptcy under
the United States Bankruptcy Code. From 23 September 2008 he was
engaged as a consultant to Monaro Mining NL 1151 as they pursued their tender
for the grant of an EL at Mount Penny, amongst other ELs it tendered for as
part of the EOI process.
1199 I am satisfied that the evidence establishes that after Mr Brook introduced
himself and Lehman Brothers to Moses Obeid as a bank open to any
1148
Exhibit A p 1059.
1149
1150
T 2804.
1151
5KIPGFD[#WUV.++
transaction that was “financially viable” and that “nothing [was] too big”,1152 and
after Moses Obeid was invited by Mr Selby to tell Mr Brook about “the farm”,
Moses Obeid spoke of a project which included what he described as “an
alliance of landowners” in the Bylong Valley interested in the potential for an
enhanced financial return by engaging (in some contractual arrangement yet to
be formalised) with a coal mining company who would, or might, apply for the
right to mine for coal over their land.
1200 What is in issue is whether by Moses Obeid agreeing to meet with Mr Brook (at
Mr Selby’s invitation) and upon meeting with him and opening discussions
about the “project” and “the farm”, preliminary to a second meeting in which
Paul Obeid led those discussions, is evidence of his participation in a
conspiracy that was in existence at that time, having been forged on the Crown
case no later than 9 May 2008.1153
1201 In the detailed submissions advanced by Mr Neil (which were in significant

respects adopted by Ms Francis and Mr Martin), I was invited to find that other
evidence in the Crown case admits of a competing explanation for Moses
Obeid not only meeting with Mr Brook on 3 July 2008 and discussing the
“project” with him, but also for Moses Obeid to have commenced negotiations
with Mr Fang along similar lines. That explanation is comprehended by what
Moses Obeid (in the presence of Edward Obeid) described in the
Shanahan/Jiminez interview in December 2012 as the “exit strategy”.
1202 I have already discussed whether, in light of the various factual findings I have
made in my deliberations thus far, the so-called “exit strategy” might provide a
competing explanation for the Obeids’ apparent interest in exploring the
potential for engaging with the Boyds in a joint venture that contemplated the
granting of mining leases under an EOI process and retaining Mr Rumore to
advise. It is implicit in the findings I have already made that by mid-June 2008,
any basis for Moses Obeid or Edward Obeid to have held any continuing
concerns about the Anglo Coal P/L “threat” had been effectively displaced
upon learning from Mr Macdonald that a new coal release area had been
designated at Mount Penny for inclusion in an EOI Process. To the extent that
1152
T 3033.
1153
See par 326.
5KIPGFD[#WUV.++
it is necessary to do so, I will add the further observation that learning of that
fact was clearly not treated as a “threat” to the continued utility of Cherrydale
Park as a rural retreat and cattle farming property; instead it was embraced by
Moses Obeid (and his brothers) in their sustained pursuit of a joint venture with
a mining company, first with Mr Fang, then with Monaro Mining NL and later
with Cascade Coal P/L.
1203 However, given the primacy given to the so-called “exit strategy” by Edward
Obeid and Moses Obeid in their interview with journalists and the use to which
that interview is put by the parties (Edward Obeid and Moses Obeid relying
upon it as giving rise to a reasonable explanation inconsistent with guilt, and
the Crown relying upon various of the representations made to the journalists
as constituting admissions against interest),1154 I will refer to that aspect of the
evidence in the trial at this point in my deliberations in some greater detail.
My ultimate rejection of the “exit strategy” as an innocent explanation

1204 The “exit strategy”, so-called, concerned what Moses Obeid represented to the
journalists was a “real and present threat” that Anglo Coal P/L would seek to
renew Authorisation 287, which was due to expire in July 2008, or, worse still,
that Anglo Coal P/L would actually seek a mining lease over the area covered
by Authorisation 287, including the land that encroached on the most fertile
pastures on Cherrydale Park. Moses Obeid told the journalists that the family
had learnt from their own researches, including gossip in the valley, that a mine
in the Bylong Valley was proposed. Moses Obeid explained to the journalists
that by his family pursuing the possibility of a joint venture with another mining
company who might acquire the EL, they could frustrate or ultimately thwart
entirely Anglo Coal P/L’s plans to mine the land and, in the event that the threat
from Anglo Coal P/L did not materialise, they would continue to pursue and
develop both Cherrydale Park and the adjoining properties, Donola and
Coggan Creek, as a large agricultural and cattle holding.
1205 As I acknowledged earlier,1155 in its closing submissions the Crown accepted

that even if, at one time in early 2008, the Obeids might have had a legitimate
concern that Anglo Coal P/L might pursue a mining lease under Authorisation
1154
1155
See par 599.
5KIPGFD[#WUV.++
287, and might seek to renew the Authorisation as a preliminary step to

commencing mining operations, they had been told, via Edward Obeid’s
enquiries of Mr Macdonald in April 2008, that there was no plan for an “Anglo
Mine”. The Crown also submitted that the so called “Anglo threat” does not
accord with the evidence of either Mr Brook or Mr Rumore where, in their
dealings with Moses Obeid, it was patent that the focus was on the Obeids
actively participating as landowners in a mining venture with a mining company
for commercial purposes.
1206 The Crown also submitted that the proposition that the Obeids’ motivation in
purchasing or arranging for the purchase of the neighbouring properties of
Donola and Coggan Creek was to secure leverage for the so-called “exit
strategy”, does not withstand scrutiny given the wealth of evidence probative of
the fact that the real motivation was to ultimately control the three properties in
order to capitalise on the benefits generated by Mr Macdonald’s successive
acts of misconduct from 9 May 2008 up to that date, including, as the Crown
saw it, most critically, the fifth act of misconduct which resulted in the creation
of the Mount Penny Coal Release Area and its inclusion in a pending EOI
process. While the force of that aspect of the Crown’s closing submission is
diminished because I have not found the fifth act of misconduct established, on
the basis of the facts as I have found them established as concerns the 6 and
16 June 2008 meetings with the DPI, the point is still well made that it was Mr
Macdonald’s provision of information about the creation of the Mount Penny
Coal Release Area that motivated the Obeids to move to acquire control of the
rural properties within or at least proximate to Cherrydale Park where they
were given to understand the new coal release area had been designated
given Cherrydale Park’s proximity to Mount Penny.
1207 Where, for the reasons which follow, I am satisfied Mr Macdonald provided
either or both of Moses Obeid and Paul Obeid (and perhaps Edward Obeid)
with Wiles Map 2 (the conduct the subject of the fourth act of misconduct), I am
able, at this time, to make an allied finding of fact that it was referable to that
map that Mr Macdonald identified where he had “strongly suggested” to the
DPI that a new coal release area should be created, that is, to the east of the
potential coal resource encompassed within the sideways S-shape near Mount
5KIPGFD[#WUV.++
Penny. With that information I am firmly of the view the Obeids would have
been in no doubt that the proposed new coal release area would include
Cherrydale Park and the neighbouring properties of Donola and Coggan Creek
even if, as I have accepted, there is no evidence that Mr Macdonald asked for
or was supplied with the boundaries of the Mount Penny Coal Release Area in
the form of Diagram X.
1208 As will become obvious from the review of Mr Brook’s evidence of what
occurred at the first and second Wentworth Hotel meetings which follows, I am
also satisfied that it was this knowledge that motivated Moses Obeid’s
simultaneous engagements, first with Mr Fang sometime prior to 30 June 2008
conference with Mr Rumore and then Mr Brook as and from 3 July 2008 before
Mr Brook’s engagement with Monaro Mining NL from 15 July 2008 on his
behalf took precedence.
1209 I will reserve consideration of the Crown’s allied submission that this same
body of evidence allows for the inference to be drawn that Moses Obeid would
not have initiated or pursued those commercial engagements (which
necessarily impacted upon the ongoing utility of Cherrydale Park as a rural
retreat and idyllic place to retire) without the sanction of his father, and that this
is a source of evidence proving Edward Obeid’s participation in the conspiracy.
As I have emphasised on multiple occasions, the question whether the Crown
has proved the participation of any of the accused in the conspiracy alleged
only arises if I am satisfied beyond reasonable doubt that the existence of the
conspiracy is proved.
1210 Mr Brook’s evidence as to representations by Moses Obeid during the first

Wentworth Hotel meeting in relation to coal resources in the vicinity of the
“family farm” was also in dispute.
1211 Mr Brook gave evidence that Moses Obeid told him that the reason the family
had bought Cherrydale Park was because they believed there was a “very
large coal resource” underneath the land.1156 Since it is no part of the Crown
case that Cherrydale Park was purchased because the Obeids had a belief
about a coal resource under the land, I place no weight on this aspect of Mr
1156
T 2809.
5KIPGFD[#WUV.++
Brook’s evidence. In any event, in large part because of the concessions Mr

Brook made in cross-examination, I am satisfied that at least at the first
Wentworth Hotel meeting, Moses Obeid spoke in qualified terms about the
potential success of the proposed project, in the sense that “they [members of
his family] had reason to believe that there may be coal under the property and
were keen to capitalise on that if that was true”.1157 Mr Brook also gave
evidence that he was told by Moses Obeid that “they [members of his family]
believed there were government tenders coming out” and that “they suspected
the property [being ‘the farm’] … would be within the area of the exploration
licence coming forward for tender” (emphasis added).1158
1212 While I accept that Moses Obeid told Mr Brook that the source of his
knowledge or belief concerning the timing of the tenders was derived from
speaking to “locals and mining professionals”,1159 it is at least implicit in the
way the Crown puts its case that amounted to deliberate dissembling. Given
the various factual findings I have made in my deliberations thus far about Mr
Macdonald’s relay of information concerning the creation of the Mount Penny
Coal Release Area, I am firmly of the view Moses Obeid was in fact
deliberately dissembling, being concerned (at least at that time) not to reveal
that his information sourced in large part from information provided by a New
South Wales government Minister about the pending release of the Mount
Penny Coal Release Area as part of an EOI process for the grant of an EL.
The significance of Moses Obeid’s representation concerning a landholders

alliance in his contractual dealings
1213 It is also of significance in refusing to give any credence to the “exit strategy”
that at the first Wentworth Hotel meeting Mr Brook was led to believe by Moses
Obeid (and later by Paul Obeid in the second Wentworth Hotel meeting) that
there was an existing landholders alliance of which their family were members.
Despite the closing submissions advanced on behalf of Moses Obeid that the
evidence reveals that in early July 2008 the family was only considering
purchasing Donola and Coggan Creek and that Mr Brook should not be
believed when he referred to Moses Obeid speaking about an existing alliance,
1157
T 3031, 3096.
1158
T 3031.
1159
T 3028.
5KIPGFD[#WUV.++
I accept as both truthful and accurate his evidence that Moses Obeid told him
that:
… they had formed a landholders alliance … 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.1160 (Emphasis added.)
1214 While these representations were themselves neither accurate nor truthful
(Donola and Coggan Creek having not been “acquired” until 8 August 2008
when Mr Rumore, on behalf of Geble P/L, executed a Contract for Sale for the
purchase of Donola and call options to acquire Coggan Creek) the relevance
resides in Moses Obeid’s representation that the landholders alliance was in
existence as bolstering the prospect of Lehman Brothers being attracted to the
proposal.
1215 These representations were also made, of course, at a time when the Special
Purpose Vehicle which was to acquire the three properties under a Unit Trust,
as contemplated by the arrangement with Tianda Resources P/L, was still
under discussion and review by Mr Rumore (and presumably still under
consideration by Mr Fang). It was only when that arrangement did not come to
pass and Mr Rumore was instructed on 18 July 2008 that the “Tianda” deal
was “off”1161 that on 6 August 2008, Mr Rumore was given firm instructions by
Moses Obeid to acquire Donola and Coggan Creek, together with instructions
that Geble P/L, which was registered on 28 July 2008, was to be used for that
purpose.1162
1216 As will be obvious from what follows later, I am also satisfied that in Moses
Obeid’s dealings with Monaro Mining NL via Mr Brook from mid-July 2008, a
relationship which was formalised by 20 August 2008 upon the execution of the
Share Option Deed between Monaro Mining NL and Voope P/L,1163 the
concept of a landholders alliance was consistently deployed.
1160
T 2809.
1161
Exhibit Q p 1143.
1162
Mr Rumore was the sole director and shareholder of Geble P/L from 28 July 2008 (Exhibit A p 1421, noting
that Exhibit C, the Crown’s Companies Summary, erroneously stated that Geble P/L was registered on 28 July
2007)) until 17 November 2008 which he held on trust for Equitexx P/L as trustee for the OFT No 2 – Exhibit C.
1163
5KIPGFD[#WUV.++
1217 In summary, I am satisfied that at the first Wentworth Hotel meeting on 3 July
2008, Moses Obeid was interested to learn from Mr Brook whether Lehman
Brothers had clients in the natural resources or mining sector with whom they
might participate in a joint coal mining venture of some kind or whether, in the
alternative, Lehman Brothers had a client that would be interested in partnering
with the so called landholders alliance, again in a joint venture of some kind,
including by applying for a coal EL over a coal release area which would
include the family’s landholdings in the Bylong Valley (and other property held
by the landholders alliance) and that by the second Wentworth Hotel meeting
on 7 July 2008 it was that strategy that was developed.
The acquisition of Donola and Coggan Creek and the question of the existence
of a landholders alliance
1218 The Crown also submitted that I would be satisfied from combination of all the
facts and circumstances adduced in evidence in its case that it was Mr
Macdonald’s ultimate relay of the information about the designation of a new
coal release area encompassing Cherrydale Park, that was the “real reason”
for what the Crown described as the steps taken by the Obeid family first to
acquire and then later to “disguise” their interest in Donola and Coggan Creek
by the various mechanisms that ultimately resulted in the title to both properties
being held by friends and associates of the Obeid family.1164
1219 Donola was purchased by Geble P/L on trust for the Elbeg Unit Trust with the
10% deposit on the purchase price of $600,000 paid using funds provided by
the Obeid Family Trust No 1.1165 The beneficiaries of the Elbeg Unit Trust were
UPG P/L as trustee for the Moona Plains Family Trust and Challenge Property
Investments Group Pty Ltd (Challenge Property Investments Group P/L), a
company owned by the Triulcio family, as trustee for the Triulcio Family Trust.
Members of that family enjoyed a close relationship with members of the Obeid
family.1166
1164
MFI 181 p 118.
1165
Exhibit A pp 1597 and 1599; Exhibit D. Prior to settlement Mr Rumore lodged a caveat on the property, the
caveatable interest being the equitable interest under the contract for sale (Exhibit AT p 24 par 2.4.5).
1166
Exhibit A p 2201; T 2008. Rocco Triulcio was “a partner with the boys in a number of other ventures”
5KIPGFD[#WUV.++
1220 In particular, Edward Obeid’s diary recorded various meetings with Rocco
Triulcio on 1 May, 7 May and 18 July 2007; 4 June, 14 November and 16
December 2008; and 22 May, 4 June, 29 July, and 10 September 2009, 1167
together with a meeting with Rocco Triulcio and Mr Macdonald at the
Wentworth Hotel on 1 June 2009.1168
1221 I also note that the general ledger for Locaway P/L listed a debit in the amount
of $300,000 dated 14 November 2007 bearing the description “loan rocs dad
for Cherrydale”.1169
1222 The purchase of Donola was settled on 22 October 2008. The balance of the
purchase price was paid using funds loaned to Geble P/L by the Triulcio Family
Trust ($162,994); Moona Plains Family Trust ($92,170) and $420,000
advanced by the Westpac Banking Corporation secured by a registered first
mortgage over the property.1170
1223 On 18 November 2008, ownership of Geble P/L passed to Mr Campo, the

Triulcios’ accountant.1171
1224 On 6 August 2008 Geble P/L (as trustee for the Elbeg Unit Trust) was granted
two Call Option Agreements for the purchase of the properties comprising
Coggan Creek.1172 The two option fees paid by the Obeid Family Trust No 1 to
TE O’Brien ($53,859) and Terrance O’Brien ($1,037) (via CBP Lawyers) on 5
August 2008 totalled $54,896.1173 The option periods expired on 6 October
2008, at which point both options had lapsed.1174 On 6 October 2008, at Mr
Rumore’s request, the option period in respect of each call option was
extended via two Deeds of Variation of Option.1175 Both option periods were
extended to 7 November 2008.1176 On 6 November 2008, Geble P/L nominated
1167
Exhibit A pp 115, 117, 121, 849, 2789, 3077, 3751, 3895, 4471, 4589.
1168
Exhibit A p 3895.
1169
Exhibit A p 325.
1170
Exhibit G pars 48-49.
1171
Exhibit C.
1172
Exhibit G.
1173
Exhibit D p 27.
1174
Exhibit G; T 2078.
1175
Exhibit G; Exhibit A pp 2113-2121.
1176
Exhibit G; Exhibit A pp 2107, 2117.
5KIPGFD[#WUV.++
Coopers World P/L as trustee for the Justin Kennedy Lewis Family Trust as its
nominee to exercise the call options.1177
1225 Meanwhile on 5 November 2008, the transfer of Donola to Geble P/L (by a
transfer dated 22 October 2008) was recorded in the Land Titles Office. 1178 Mr
Rumore acknowledged receipt of the cheques to effect settlement from “Ross”
(Triulcio, it can be readily inferred) by email on 22 October 2008.1179 On 17
November 2008, Mr Rumore ceased to be a director of Geble P/L and the
following day ceased to be a shareholder of that company.1180 The new
director/shareholder of Geble P/L, Mr Campo, was an accountant for the the
Triulcio family. Geble P/L continued to operate as trustee for the Elbeg Unit
Trust.
1226 Mr Lewis was introduced to Mr Rumore by Moses Obeid in a client conference

on 6 November 2008.1181 Mr Lewis and Moses Obeid are friends of long
standing.1182 Mr Rumore acted as Mr Lewis’ solicitor on the purchase of
Coggan Creek.1183
1227 On 6 November 2008, the option deeds for Coggan Creek were assigned to
Coopers World P/L1184 and a contract for the sale of Coggan Creek was
executed the following day naming Coopers World P/L as trustee for the Justin
Kennedy Lewis Family Trust as purchaser.1185
1228 On 7 November 2008 Mr Rumore recorded a file note detailing an “Agreement

between Lewis and Obeids” that Mr Lewis was to “sell land, take out costs and
30% of profits are to go to Obeid interests as a fee, but only [if] Monaro Coal is
the party that wins the coal concessions over the properties.” 1186 Two
Contracts for Sale dated 7 November 2008, each naming Coopers World as
trustee for the Justin Kennedy Lewis Family Trust as the purchaser, were
1177
Exhibit A pp 2447, 2449; T 2013.
1178
1179
Exhibit A p 2357.
1180
Exhibit C.
1181
Exhibit Q p 2445; T 2011-2012.
1182
1183
Exhibit A p 2465.
1184
I note that the name of Coopers World P/L was changed to Justin Kennedy Lewis P/L on 10 November
2008.
1185
Exhibit G; Exhibit A p 2707.
1186
Exhibit A p 2487.
5KIPGFD[#WUV.++
entered into for the purchase of Coggan Creek.1187 On 10 November 2008, the
name of Coopers World P/L was changed to Justin Kennedy Lewis P/L. 1188
1229 The following table is extracted from the expert report of Mr Temple-Cole,
forensic accountant, illustrating the payments relating to the call options to
purchase Coggan Creek.1189
Table 5 Payments related to options to purchase Coggan Creek Bylong
Paid
Paid to
Componen from
Date Amount Accoun
t Accoun
t
t
Obeid
Call Option
Unknow 53,859.3 Family CBP
Agreement
n 0 Trust Lawyers
fee
No.1
Call Option
05-Aug- 53,859.3 CBP TE
Agreement
08 0 Lawyers O’Brien
fee
Second Obeid
Call Option Unknow Family CBP
1,037.00
Agreement n Trust Lawyers
fee No.1
Second
Call Option 05-Aug- CBP Terence
1,037.00
Agreement 08 Lawyers O’Brien
fee
1187
Exhibit A pp 2467-2470, 2511-2512, 2638-2637, 2665-2666, 2707-2708.
1188
Exhibit C.
1189
Exhibit AT p 32.
5KIPGFD[#WUV.++
1230 Settlement of the purchase of Coggan Creek for $3.5 million was extended on
various occasions between 7 November 2008 and 2 November 2009 by
executed Deeds of Variation of Contract.1190 The transfer of the titles to
Coggan Creek dated 2 November 2009 1191 was recorded in the Land Titles
Office on 6 November 2009.1192
1231 These various arrangements are objectively established by the documentary

evidence tendered at trial and not in dispute. Many of them were the subject of
a statement of agreed facts.1193
1232 What was in dispute was the significance of the arrangements to proof of the
facts in issue. In particular, the timing of the steps taken to acquire control of
the two properties neighbouring Cherrydale Park in August 2008; the timing of
the steps taken in November 2008 to transfer the shareholding and directorship
of Geble P/L as registered proprietor of Donola; and the steps taken by Geble
P/L to nominate Coopers World P/L (later renamed Justin Kennedy Lewis P/L)
as trustee for the Justin Kennedy Lewis Family Trust as its nominee to exercise
the call option for the purchase of Coggan Creek.
1233 In the Crown’s submission, these multiple and convoluted arrangements

undertaken on Moses Obeid’s instructions were motivated by a strong desire
on his part to ensure that the benefits it was anticipated would flow from the
inclusion of the Mount Penny Coal Release Area in an EOI process for the
granting of an EL through continued and coordinated use of confidential
information provided by Mr Macdonald, would not be jeopardised, as it might
be were the Obeids’ ownership and control of the properties within the Mount
Penny Coal Release Area a matter of public record.
1234 In the Crown’s submission, the conduct of Edward Obeid and Moses Obeid in
endeavouring to distance the Obeid family name from ownership of Cherrydale
Park in various ways and the convoluted way in which both Donola and
Coggan Creek were acquired, with third parties financing the acquisitions
under the guise of acquiring rural land for recreational farming purposes, also
1190
Exhibit G.
1191
1192
1193
Exhibit G.
5KIPGFD[#WUV.++
guaranteed that their participation in the conspiracy, which they expected

would generate a significant financial advantage, would neither be exposed nor
jeopardised.1194
1235 Counsel for all three accused submitted that the same body of evidence relied
upon by the Crown as probative of their guilt supports a number of alternative
hypotheses inconsistent with the Crown case, as concerns both the timing of
Moses Obeid’s instructions to Mr Rumore to secure the acquisition of Donola
and Coggan Creek through Geble P/L (including Mr Rumore’s evidence of his
understanding of why the properties were purchased through third party
entities); Moses Obeid’s introduction of Mr Lewis to Mr Rumore as the
purchaser of Coggan Creek on 6 November 2008,1195 and the arrangements
which were later put in place, in November 2008 when, under instructions from
Moses Obeid, Mr Rumore drew up the Tripartite Landowners Deed 1196 by
which each of the owners of Cherrydale Park, Donola and Coggan Creek
agreed, inter alia, to sell their properties to the mining company that might be
granted an EL at a multiple of four times the value of each property, and the
Profit Sharing Deed under which, upon the sale of Coggan Creek, Justin
Kennedy Lewis P/L agreed to pay 30% of the profit on the sale to UPG P/L. As
to the structure and execution of the Tripartite Landowners Deed and the Profit
Sharing Deed see later at par 1924 and following.
1236 Essentially, those submissions were based upon what counsel for Edward
Obeid and Moses Obeid submitted was the entitlement of their clients to
maintain privacy in their commercial dealings in circumstances where, at least
Edward Obeid (and through him the family more generally), was a prominent
figure as a member of the Australian Labor Party and a prominent
parliamentarian.
1237 It was also submitted that, having not called either Mr Lewis or any member of
the Triulcio family in this case, the Crown could not discount the reasonable
possibility that those family friends and associates did not genuinely agree to
join with the Obeid family in an agricultural enterprise in which the properties
1194
MFI 181 pars 478, 483.
1195
Exhibit A p 2443.
1196
Exhibit A p 2487.
5KIPGFD[#WUV.++
they acquired or controlled (namely, Donola and Coggan Creek) would be

utilised to develop an extended cattle farming operation, simultaneously
providing a basis for their continuing extended and ongoing friendship as
neighbouring property owners in an area not far distant from Sydney.
1238 For reasons which will follow later in my deliberations to verdict, I do not
propose to draw an inference adverse to the Crown from not having called
either Mr Lewis or any member of the Triulcio family in its case.
1239 In those circumstances, and taking into account what I regard as the
overwhelming evidence of the pursuit by the Obeid family of a mining deal over
which they could exercise control and from which they hoped to secure a
significant financial benefit, principally through the agency of Moses Obeid (as
will be obvious from the review of the evidence which follows), I regard the
interposition of third party purchasers of the adjoining properties of Donola and
Coggan Creek as being some evidence of the existence of the conspiracy and
the desire of Moses Obeid and Edward Obeid to conceal their participation in it
(assuming, of course, that I find the existence of the conspiracy proof
reasonable doubt).
The first Wentworth Hotel meeting concludes

1240 I accept as both truthful and accurate that Mr Brook told Moses Obeid that as
he did not have any experience in natural resources and that he knew of only
one company in Lehman Brothers’ portfolio that operated as a “mining”
company, he would make enquiries both “in Australia” and “elsewhere within
the Asia Pacific region” for a mining company that might be willing to become
involved. I am able to make that finding on the basis of Mr Brook’s email of 4
July 2008 to Mr Dunlop1197 (a person known to him as associated with a
stockbroking and corporate firm advising on natural resources) in which he
seeks Mr Dunlop’s advice as to a company (preferably a private company) who
has a coal mining licence as he (Mr Brook) “want[s] to bid on a govt tender”. Mr
Brook also informed Mr Dunlop that the “timing is tight”.
1197
Exhibit A p 1081.
5KIPGFD[#WUV.++
1241 Mr Brook gave evidence, which I also accept as truthful, that the reason he
indicated a preference for a private company’s in his email to Mr Dunlop was
as follows:
At the time I really wasn’t sure whether or not private or public. That was - I
wasn’t - that wasn’t an educated question on my part to Mr Dunlop, to be
honest. I didn’t really know whether we wanted a public or a private company
but it was in time that I realised that there were virtues on both to either have a
public or private company. But in the context of that email, I thought at that
time that perhaps a private company that had a coalmining licence would be
easier to potentially form a joint venture with a landholders alliance such as the
Obeids’ landholder alliance.1198
1242 I also accept that Mr Brook told Mr Dunlop that “timing” was “tight” 1199 because
Moses Obeid had emphasised that if Lehman Brothers was interested in
working with his family in a joint venture of some kind (in a structure yet to be
settled upon) but with a view to securing a coal EL over land held by members
of the “landholders alliance”, Mr Brook understood he had to “identify a
potential mining joint venture partner as soon as possible”.1200
1243 The first Wentworth Hotel meeting on 3 July 2008 concluded with it being left to
Mr Selby to arrange a subsequent meeting or meetings, potentially including
Moses Obeid’s brother, Paul Obeid.1201
The second Wentworth Hotel meeting

1244 Mr Brook gave evidence that he was introduced to Paul Obeid and Gerard
Obeid by Moses Obeid at the second Wentworth Hotel meeting on 7 July 2008.
1245 Mr Brook gave evidence that after being introduced to Moses Obeid’s brother
he restated, for Paul Obeid’s benefit, Lehman Brothers’ capabilities as a
merchant bank, his role within Lehman Brothers and what he was “looking for
with respect to the characteristics of a potential transaction”.1202
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
1198
T 2812.
1199
1200
T 2813.
1201
T 3031.
1202
T 2815.
5KIPGFD[#WUV.++
resource underneath their property”.1203 The meeting which followed was led
by Paul Obeid, but Moses Obeid was an active participant. Gerard Obeid
contributed very little to the meeting.
Paul Obeid provides a cardboard cylinder containing “maps”

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. 1204 It ultimately
arose in the course of Mr Brook’s evidence in chief. By that time, Mr Brook had
given evidence in chief, without objection, that the “two” or “three” maps
produced from a cardboard tube were spread out on a “very large oval wooden
table”.1205 Mr Brook identified one of those maps as being “A3 or maybe larger”
and the second map as being “a little bit bigger than A4”.1206 He had no certain
recall of the third map, if there was a third map.
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.1207 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.1208
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.1209
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
1203
T 2815.
1204
T 2800-2802.
1205
T 2815.
1206
T 2815.
1207
T 2818.
1208
T 2818.
1209
T 2834.
5KIPGFD[#WUV.++
“tainted” by Mr Brook having been shown Wiles Maps 1 and 2 and given
information about them during the course of the ICAC proceedings. 1210
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.
The voir dire on the issue of the “maps”

1253 In those circumstances, I convened a voir dire to determine whether Mr Brook
should be permitted to give evidence concerning the maps he said he saw at
the second Wentworth Hotel meeting.
1254 On the voir dire, Mr Brook’s evidence given in both the public and private
hearings before ICAC in 2012, and his various dealings with ICAC investigators
both before and after that time, and as his exposure to Wiles Map 2 (and Wiles
Map 1) in the course of those engagements, enabled me to make a number of
findings of fact material to the issues raised on the voir dire:
(1) On 12 March 2012, Mr Brook participated in a private hearing before

ICAC. Extracts of the transcript of that private hearing were marked MFI
130 on the voir dire and were subsequently tendered as part of Exhibit
40 by Mr Neil for a limited purpose under s 136 of the Evidence Act.1211
The balance of the transcript remained marked for identification. 1212
(2) During the private hearing, Mr Brook was asked whether he met with
Moses Obeid on an occasion on which Moses Obeid “had mining
maps”, which he answered in the affirmative.1213 Mr Brook did not
mention any red shading or the nomination as maps of North
Bylong/Mount Penny on either of the “mining maps” he was shown by
Moses Obeid. Neither did he provide any other identifying features of
any of the “mining maps”.1214
1210
MFI 140; T 2821, 2830-2832.
1211
Exhibit 40; T 3587. Exhibit 40 comprises part of the transcript of Mr Brook’s evidence in a private hearing
before ICAC on 12 March 2012 (pp 262-263); part of the record of interview between Mr Fox and Mr Brook on
13 March 2012 (pp 1, 5, 13); and part of the transcript of Mr Brook’s evidence in a public hearing before ICAC
on 19 November 2012 (pp 966-967).
1212
MFI 136 was marked during the course of legal argument about the admissibility of Mr Brook’s evidence
about Wiles Map 2, see T 2821.
1213
MFI 136 p 217PT; T 2833.
1214
MFI 140 p 3.
5KIPGFD[#WUV.++
(3) Later in the same private hearing, Mr Brook was shown Wiles Map 1
and Wiles Map 2 by counsel assisting the Commissioner. Mr Brook was
asked by counsel assisting to “assume [he] 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”, including two maps which counsel assisting then indicated
he would show to Mr Brook.1215
(4) Mr Brook gave evidence that the map dated “30 May 2008” (Wiles
Map 2) was shown to him by a member of the Obeid family “not long”
after he first met Moses Obeid.1216 He said that Wiles Map 2 was
“definitely” shown to him.1217 He was not asked about the circumstances
in which he was shown the map or by whom. Wiles Maps 1 and 2, along
with two other documents which counsel assisting indicated were also
contained in a manila folder seized from Paul Obeid’s office in the
Locaway P/L premises, were admitted as Exhibit 2 in the ICAC
proceedings. Those documents were tendered as Exhibit X in the
trial.1218
1255 The Crown submitted, and I accepted, that when Mr Brook was first asked, on
12 March 2012, to assume Wiles Maps 1 and 2 had been validly seized by
ICAC, he gave evidence that he had seen Wiles Map 2 1219 not long after
meeting Moses Obeid for the first time. On the undisputed evidence in the trial,
that was at the first Wentworth Hotel meeting on 3 July 2008. At that point on
the voir dire I expressed the preliminary view that there seemed to be probative
value in what appeared to be an unrehearsed response to a question whether
he was shown Wiles Map 2 by a member of the Obeid family.1220
1256 Although I note Mr Brook proceeded to give evidence in the same private
hearing before ICAC that Moses Obeid showed him “a printout of a tenement”
which “showed the boundaries”,1221 I did not then, and do not now, accept that
evidence was given referable to “a map” as distinct from what he described as
“a printout”.1222 That being so, the first time Mr Brook gave evidence about
having been shown Wiles Map 2 by a member of the Obeid family (as opposed
to “a printout” showing a “tenement”) was the evidence he gave when he was
shown both Wiles Map 1 and Wiles Map 2 by counsel assisting during the
1215
Exhibit 40 p 262PT.
1216
Exhibit 40 p 262PT-263PT; T2819.
1217
Exhibit 40 p 262PT.
1218
1219
T 2834.
1220
T 2835.
1221
MFI 136 p 217PT; T 2828.
1222
T 2828.
5KIPGFD[#WUV.++
private hearing before ICAC.1223 That is, I am satisfied there was no occasion
prior to being shown both maps by counsel assisting on 12 March 2012 when
Mr Brook said he was shown “a map” by a member of the Obeid family which
resembled Wiles Map 2, referable to the colours on it, its date, title or the
red/pink hatched sideways S-shape depicted on the map.
1257 The evidence on the voir dire allowed for the following further findings of fact:
(1) On 13 March 2012 (the following day), Mr Brook participated in a record

of interview with Chief Investigator Fox also attended by Paul Grainger
from ICAC. The transcript of that record of interview was marked for
identification in the trial.1224 On that occasion, Mr Brook accepted a
series of propositions put to him by Mr Fox, including that “map two”
(being the map labelled “North Bylong, Mt Penny” - clearly Wiles Map 2)
was shown to him by Moses Obeid at the Wentworth Hotel.1225
(2) Mr Brook then proceeded to give an unprompted account to Mr Fox that
Moses Obeid showed him Wiles Map 2 because “his property” was
located in an area depicted on the map and that the map also depicted
a “contiguous area” which was “pointed to” (by Moses Obeid) as
containing “a much bigger [coal] resource”.1226 During legal argument I
accepted that Mr Brook’s use of the term “contiguous area” in that
interview was his description of what he was shown (he said by Moses
Obeid) as distinct from something he was told when the map was
shown to him.1227
(3) Eight months later, on 27 and 28 November 2012, Mr Brook participated
in a public hearing before ICAC. The transcript of that public hearing
was marked for identification in the trial.1228 On that occasion, he was
again shown Wiles Map 1 and Wiles Map 2 by counsel assisting. By
that time, both maps had been marked MFI 5 and MFI 6, respectively, in
those proceedings.1229 Those maps, or copies of them, had already
been admitted as Exhibit 2 in the ICAC proceedings on 12 March 2012
during Mr Brook’s private hearing.1230
(4) Counsel assisting again asked Mr Brook to accept that the maps were
seized under warrant from Paul Obeid’s office.1231 Mr Brook gave
evidence that Wiles Map 2 definitely “looked familiar”. On this occasion,
he told the Commissioner that he was shown the map by Moses Obeid
and Paul Obeid.1232 Mr Brook mentioned the presence of Paul Obeid
1223
T 2828.
1224
MFI 139.
1225
MFI 139 p 13; T 2829, 2833.
1226
MFI 139 p 14; T 2833-2834.
1227
T 2834.
1228
MFI 137.
1229
MFI 137 p 1690T; T 2826, 2829.
1230
Exhibit 40 p 262PT-263PT.
1231
MFI 137 p 1549T; T 2831-2832.
1232
MFI 137 p 1550T.
5KIPGFD[#WUV.++
and “possibly” Gerard Obeid at the meeting where the map was
produced.1233 Counsel assisting also put to Mr Brook that Wiles Map 2
contained what counsel described variously as “a rather distinctive pink
hatched area… which we’re calling an S on its side”1234 and a “red
hatched area which we describe as the S”1235 which Mr Brook also
confirmed was familiar to him.1236 In response to counsel’s question
whether “the Obeids” indicated to him “whether it was likely that [the
contiguous area] would ever be opened up or what they knew about
that”, Mr Brook gave evidence that he was told that the “likelihood of
being granted the contiguous area” to a particular mining area is “very
high” and that, in addition to the “initial… EL” or “tenement” (which Mr
Brook said he was told comprised “100 million tonnes [of coal]”), the
contiguous area brought the entire available coal resource to “700 to a
billion tonnes”.1237
(5) Mr Brook was invited by counsel assisting to mark with a pencil what Mr
Brook had described as “the approximate [boundaries of the] initial EL
area” on a copy of Wiles Map 2,1238 by which I take counsel assisting to
be asking Mr Brook to mark what he later came to learn was the Mount
Penny Coal Release Area. A copy of the map marked by Mr Brook was
tendered in the ICAC proceedings as J-42.1239 That document was not
tendered in the trial, unless it is the copy of Wiles Map 2 tendered in
Exhibit X. At that point during legal argument I observed there was
“nothing to suggest that Wiles Map 2, marked for identification 6 before
the Commission, had any markings on it at the time it was shown to Mr
Brook”.1240
(6) Nine months later, on 15 August 2013, Mr Brook participated in the first
of four further Records of Interview with Mr Fox.1241 Those interviews
were convened after the ICAC proceedings had concluded.1242 The
transcript of the interview conducted on 15 August 2013 was marked
MFI 138, MFI 138/1 and MFI 138/2 in the trial. Those transcripts
remained marked for identification. The transcripts of the balance of
those interviews were not produced in the trial.
(7) In the 15 August 2013 interview, Mr Brook said that at the “Wentworth
Lounge”, at an “oval shaped table”,1243 Paul Obeid, “not Moses”,1244
produced from what Mr Brook accepted from Mr Fox was a “cardboard
tube”,1245 “two, possibly three maps” which were “geological map
1233
MFI 137 p 1690T.
1234
MFI 137 p. 1550T; T 2831-2832.
1235
MFI 137 p 1690T; T 2826.
1236
MFI 137 p 1550T; T 2829.
1237
MFI 137 p 1692T.
1238
MFI 137 pp 1691T-1692T; T 2826.
1239
MFI 137 p 1693T.
1240
T 2827.
1241
MFI 141 par 3.
1242
T 2818.
1243
MFI 138/1 p 12.
1244
MFI 138/1 pp 14-15; T2839.
1245
MFI 138/1 p 31.
5KIPGFD[#WUV.++
size”.1246 At that point Mr Brook was shown Wiles Map 2 by Mr Fox who
drew Mr Brook’s attention to the heading “North Bylong Mount Penny
area” on the map.1247 Mr Brook indicated “this looks like the map they
showed me”. He said that it was a map he had marked (clearly a
reference to having been asked during the public hearing in November
2012 to mark with a pencil on a copy of Wiles Map 2).1248 Mr Brook went
on to say that Paul Obeid identified on that map that the Obeids’
property was in the vicinity of where the words “Mount Penny” appear
on the map1249 together with the area to the “south, south west and
directly north” (presumably of Cherrydale Park), over which “they had
formed a land alliance”1250 and the location of the “adjacent area” or
“contiguous area”.1251 In that interview, Mr Fox again confirmed with Mr
Brook that Wiles Map 2 was recovered during the execution of the
search warrant.1252
(8) On 20 August 2013, Mr Brook signed a sworn statement. The statement
was prepared during the interviews conducted at ICAC premises with
Mr Fox on 15, 16, 19 and 20 August 2013. Mr Brook’s statement was
marked MFI 141 in the trial. In the statement, Mr Brook provided a
further account of what transpired at the second Wentworth Hotel
meeting in that he said that Paul Obeid produced “at least two, possibly
three maps… from a tube”.1253 The maps were “bigger than A4”.1254 Mr
Brook recalled Paul Obeid gesturing on Wiles Map 2 to the words
“Mount Penny” and saying “that’s where our farm is”, describing the “red
cross-hatched area directly north and south of the words ‘Mount Penny’”
as the subject of the “land alliance” and the “‘adjacent (red cross
hatched) area’ to the West” as “thermal coal rich”.1255
The voir dire concludes
1258 At the conclusion of legal argument I dealt with the admissibility of Mr Brook’s
evidence by allowing the Crown to ask non-leading questions to seek to
establish whether Wiles Map 2 was produced and discussed at the second
Wentworth Hotel meeting; what was said (if anything) about what the map that
was produced at that meeting depicted, including the location of Cherrydale
Park and the red cross-hatched area adjacent to the property. I proposed that
course of action on the basis that Mr Brook’s evidence would be received
provisionally with a view to ruling on admissibility after his evidence
1246
MFI 138/1 pp 14-15.
1247
MFI 138/1 p 15; T 2839.
1248
MFI 137 pp 1691; T-1692T; T2826.
1249
MFI 138/1 p 16.
1250
MFI 138/1 p 16.
1251
MFI 138/1 p 19; T 2839.
1252
MFI 138/1 p 30.
1253
MFI 141 p 8.
1254
MFI 141 p 8.
1255
MFI 141 pp 8-9.
5KIPGFD[#WUV.++
concluded.1256 The question of admissibility was not revisited. Accordingly, his

evidence in the trial was admitted. The evidence on the voir dire was, however,
available to the parties when addressing the credibility and reliability of Mr
Brook’s evidence.
Mr Brook’s evidence about the “maps”
1259 On the resumption of his evidence in chief, the Crown elected not to show
either of Wiles Map 1 or Wiles Map 2 to Mr Brook, whether in the form of
copies of those documents that were tendered as part of Exhibit A, or in the
form of the maps at that time marked MFI 39 as the documents seized, under
warrant, from the Locaway P/L premises, (and which ultimately were admitted
as part of Exhibit X after the ruling on admissibility1257), or in any other form.1258
1260 When his evidence in the trial resumed, Mr Brook had already given evidence,
without objection, that Paul Obeid produced “two” or “three” maps from a
“cylinder” and that the maps were placed on a “very large oval wooden
table”,1259 that one of the maps was “A3 or maybe larger” and the second map
was “a little bit bigger than A4”.1260
1261 When his evidence resumed, Mr Brook gave evidence that the map that was “a
little bigger than A4”1261 was “in black and white”.1262
1262 Mr Brook described the black and white map as:
… more of a close-up image of his immediate property area [Cherrydale Park],

and then the other two properties which formed part of his alliance… it also
showed that there was a railway line going to the north of their property of one
of their partners and they described how valuable that is with respect to having
a railway link adjacent to a potential mining resource. 1263
1263 It was not suggested by the Crown that this was Wiles Map 1.
1264 Mr Brook then gave evidence referable to that map, that Paul Obeid “also
mentioned that [Cherrydale Park] had water and water rights, which would be
1256
T 2835-2837, 2841-2842.
1257
1258
T 2816.
1259
T 2815.
1260
T 2815.
1261
T 2815.
1262
T 2848.
1263
T 2848.
5KIPGFD[#WUV.++
vital for any future type of exploration and mining activity”. 1264 In cross-
examination, Mr Brook confirmed that Paul Obeid said that “access to water
rights would or could be crucial for mining operations” and that the railway line
north of Cherrydale Park “was good logistically for a mining operation”. 1265
Other evidence in the trial demonstrates the railway line as intersecting
Coggan Creek.
1265 Mr Brook then gave evidence that the larger map had “some green areas
towards the top of the map and there was like a red or pink hatched area”. 1266
He gave evidence that the “red or pink hatched area” was discussed during the
second Wentworth Hotel meeting.1267 Mr Brook recalled that he thought there
were words on the map which “definitely” included “Mount Penny” and
“Bylong”.1268 He went on to say he was certain of the words “Mount Penny”.1269
1266 He gave evidence that Moses Obeid “handed” the conversation about the map
to Paul Obeid who “went into depth with respect to where his property was
located on the map”,1270 indicating an area “pretty much in the middle of the
map”.1271 Mr Brook went on to say that Paul Obeid told him that:
… based on their investigations, due diligence, consulting with specialists in

the area, and also he referred to some old miners in the area and that sort of
thing, that they believed, firmly, that there was maybe up to 100 million tonnes
under that particular part of the Mount Penny area of which his property sat on
top of.1272
1267 With respect to the “colour hatched area” on the larger map, Mr Brook said that
Paul Obeid said “very clearly” that:
… the adjacent area is where the large coal - they believed, based on their
investigations and due diligence, they believed that the adjacent area was
where the real high quality coal was and much more than the area that is
immediately under their land, and also the land to which made up the property
alliance that they had put together that they had described to me.1273
1264
T 2846.
1265
T 3036.
1266
T 2844.
1267
T 2844.
1268
T 2844.
1269
T 2844.
1270
T 2844.
1271
T 2845.
1272
T 2846.
1273
T 2846.
5KIPGFD[#WUV.++
1268 Mr Brook gave evidence that Paul Obeid indicated the adjacent area, referable
to the red hatched area, was north-west of their property:
Q. The adjacent area, were you given information as to where that was?
A. Well, he indicated it directly on the map and it followed a sort of a north,
north-west trajectory from where his property is up around, I believe, a ridge
line and then back around again, best described as a wiggly line, up and
around sort of a - maybe, I don't know, maybe half of an infinity symbol or
maybe half an S or something like that. You know, like an S on its side or - it
went up and around and he believed that was where the main ore body was
with respect to the overall opportunity for them.
Q. How, if at all, did that part that you have just described relate to the red
hatched area?
A. Well, that was the red hatched area that he pointed out. He said that where
his property was and that of the other property in his alliance, he said that
would be stage one. But then he told me that in the event they started mining
on that, that it's very, very likely that if they could prove a resource there and
start mining that they would be given permission to then exploit the adjacent
area which I afterwards learnt in technical terms.1274
1269 It is the Crown case that the larger map (in colour) taken to the second
Wentworth Hotel meeting by Paul Obeid and produced by him was a copy of
Wiles Map 2. It is also the Crown case that Mr Macdonald caused that map to
be provided to Edward Obeid, Moses Obeid or a member of their family in
breach of his Ministerial duties of confidentiality and/or impartiality, and in
furtherance of the conspiracy alleged, being the conduct particularised as the
fourth act of misconduct.
1270 Mr Neil cross-examined Mr Brook extensively on his identification of maps he

was shown during the second Wentworth Hotel meeting. Mr Neil showed Mr
Brook three maps, identified in these proceedings as MFI 142-144. These
maps were not tendered in the trial.1275 Mr Brook gave evidence he was not
shown any of the maps in MFI 142-144, or any part of those documents, at the
second Wentworth Hotel meeting.1276
1271 Before considering Mr Neil’s submissions directed to whether the Crown has
proved the fourth act of misconduct, as ultimately particularised, 1277 given the
1274
T 2846-2847.
1275
MFI 142 – Original - Map - Diagram of EL No 6676 - marked; MFI 143 – Original - Map faxed 20/06/08 -
Tamworth P&A - marked EL6676 and A287; MFI 144 – Original – Bylong 8933-III-S - Topographic map with
post-it notes attached.
1276
T 3049-50, 3053.
1277
Leave was granted to amend the particulars of the fourth act of misconduct during the course of the trial -
see R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 14) [2020] NSWSC 1948.
5KIPGFD[#WUV.++
specific challenge he mounted to the reliability of Mr Brook’s description of the

larger map produced at the second Wentworth Hotel meeting (which Mr Neil
submitted undermined the Crown case that what was produced was a copy of
Wiles Map 2) it is necessary to consider whether what Mr Brook described in
his evidence as the “adjacent area”1278 (that is, an area within the red hatched
area on the larger map produced at the second Wentworth Hotel meeting) is
what other witnesses in the trial have referred to interchangeably as a
“contiguous zone”, “contiguous area” or an “adjacent area” referable to the
Coal Allocation Guidelines.
The significance of the “contiguous” or “adjacent” area to the question

whether Wiles Map 2 was produced at the second Wentworth Hotel meeting
1272 The Coal Allocation Guidelines,1279 to which reference has already been made
at par 703 and following above, provide for the direct allocation of “substantial
additions to existing mines” described as “adjacent to existing mining projects”
in certain circumstances, without competitive tendering but with minimum
financial contribution to be negotiated.1280
1281
1273 The Crown submitted the following:
The DPI’s approach to such adjacent areas, as explained by Mr Coutts 1282

and Mr Mullard1283, was as outlined in the Guidelines… Namely, if existing
mine reserves were nearly depleted and granting the adjacent area would
ensure the continuation of mining (with attendant benefits such as continued
employment opportunity in the area); the avoidance of duplication of
infrastructure and/or if geological constraints meant that no other mine could
develop the resource. The addition of a contiguous zone would ordinarily be
considered toward the end of the life of a mine, eg 20 years. (Emphasis
added.)
1274 I accept the concept of an “adjacent area” was generally known in the coal
mining industry as a “contiguous zone”.
1275 Mr Bowman, a consultant to Monaro Mining NL prior to their application for an

EL at Mount Penny, gave evidence of his familiarity with the term “contiguous”
including the commercial significance of “contiguous zones”:
1278
T 2847.
1279
Exhibit A pp 692.001 – 692.006.
1280
1281
MFI 181 par 358.
1282
T 333-334.
1283
T 623-624, 949, 950, 1010.
5KIPGFD[#WUV.++
Generally it had quite a significant commercial application because if you had

a resource, a mine of a certain size, and you added a significant resource to it,
you had a far more valuable property.
On the other hand, too, there were sometimes games played where you got
allocated an area and then you argue that no-one else could mine it because it
was contiguous with your area, so you then got it added to your area. So…
you can block [another potential applicant].1284
1276 Mr Grigor, as Chairman of Monaro Mining NL, gave the following evidence
about a “contiguous right”:
Well, if you own a licence already and the ore body that you’re mining or
working on continues over the boundary, there’s some - I understand there is
some priority of preference; that if you apply for that, to enable the mining to
continue on a contiguous block, or a tenement, that there’s some concessions
in costs and approval processes.1285
1277 The Crown submitted that Mr Macdonald was well aware of the method of
making a direct allocation of an adjacent area, having done so earlier in 2008
for EL 7091 granted to Wilpinjong Coal Pty Limited on 3 March 2008. 1286 Mr
Macdonald had consented to that allocation on 20 June 2007. 1287
1278 The Crown did not, however, seek to prove that Mr Macdonald was told by Mr
Mullard that the excision of the eastern portion of the potential open cut area
depicted on Wiles Map 2 to create the Mount Penny Coal Release Area would
also create a contiguous zone (or an adjacent area) in the west. Nor did the
Crown seek to prove that that potentiality was the subject of any discussion or
commentary in either of the meetings on 4 or 6 June 2008. Rather the Crown
submitted in closing that:
Reducing the larger North Bylong area to the smaller Mount Penny area had
the effect of creating an obvious contiguous zone – namely the coal in the
western portion of the “potential open cut area” in Wiles Map 2”. 1288
1279 Neither did the Crown advance any submission that the potential increase in
the commercial value of the Mount Penny EL 7406, by reason of it being
adjacent or contiguous to an unallocated large coal resource in the Bylong
Valley to the west, was information Mr Macdonald provided to the Obeids. It is
the Crown case, however, that Mr Macdonald caused either Edward Obeid or
1284
T 1458.
1285
T 1836.
1286
T 1117-1118.
1287
Exhibit 26.
1288
MFI 181 par 355
5KIPGFD[#WUV.++
Moses Obeid or another member of the Obeid family to be provided with a

copy of Wiles Map 2 in breach of his duties of impartiality and/or confidentiality
and as an act in furtherance of the conspiracy alleged. That is, it is the Crown
case that Mr Macdonald caused Wiles Map 2 (and Wiles Map 1) to be provided
having agreed with Edward Obeid and Moses Obeid, no later than 9 May 2008,
that he would commit acts of misconduct in connection with the granting of an
EL at Mount Penny for the improper purpose of advancing their private
interests or the interests of their family or associates. It is also the Crown case,
as I understand it, that in furtherance of achieving that objective, Mr Macdonald
provided Wiles Map 2 (or caused it to be provided) in order that it might be
used by Moses Obeid (or his brothers) in their dealings with Mr Brook
(assuming that Mr Macdonald was informed that discussions with Lehman
Brothers were on foot, either when he made the map available as to which
there is no direct evidence) or that it was made available, in Moses Obeid’s
dealings with Mr Fang (also as to which there is no direct evidence).
1280 As I have already discussed, although there is evidence that the proposed
arrangement with Tianda Resources P/L was current at about the same time
as the second Wentworth Hotel meeting, and although I have found as a fact
that it was Mr Macdonald who introduced Mr Fang to Moses Obeid as a
potential contracting partner in a mining deal before Moses Obeid met with Mr
Brook for the first time, there was no evidence that Wiles Map 2 was provided
to Moses Obeid or his brothers for that purpose. Mr Fang was not called in the
trial. Mr Rumore gave no evidence that he was shown the map at any time.
1281 In the Crown’s submission, for the purposes of resolving the issues at trial, it is
not to the point whether at any time in the future the area adjacent or
contiguous to what became the Mount Penny EL 7406 would be granted by
direct allocation to the holder of that EL. What is relevant is that, as at 7 July
2008, Moses Obeid (and Paul Obeid) obviously appreciated the value of the
coal adjacent to or contiguous to what they gave Mr Brook to understand was
the coal beneath the land held by the landholders alliance, and that their
understanding was informed directly by reference to the larger of the maps
produced at the meeting held that day. In the Crown’s submission, this
supports a finding that the larger of the two maps produced by Paul Obeid from
5KIPGFD[#WUV.++
the cardboard cylinder was in fact a copy of Wiles Map 2, and that the
contiguous or adjacent area which Mr Brook said he was told was adjacent to
“the farm”, and the other two properties making up the landholders alliance,
was the coal in the western portion of the “potential open cut area” on that
map.1289
The relationship between the contiguous/adjacent zone and “Stage 2” of the

project as advanced by Mr Brook in his dealings after 7 July 2008
1282 Mr Brook also gave evidence that Moses Obeid subsequently provided him
with more information about the volume and quality of coal in the contiguous
zone, and that references to “Stage Two” of the Mount Penny project in
documents prepared by him in the process of seeking financial backing from
Lehman Brothers for Monaro Mining NL’s application for the grant of an EL at
Mount Penny and later in negotiating a joint venture with Cascade Coal P/L,
were informed by what he had been given to understand, at the second
Wentworth Hotel meeting, was the location of the full complement of coal
resources available as part of a prospective mining project.
1283 On 18 July 2008, Mr Brook sent an email to Mr Marten Touw, head of fixed
income at Lehman Brothers, copied to Mr Rodney Pryor, a Lehman Brothers
analyst, informing him, inter alia, of the Mount Penny project. In the body of
that email, Mr Brook described the Mount Penny coal resource as consisting of
90Mt of thermal coal “plus” an “adjacent 600 m/t” (emphasis added) of “high
grade” coal.1290 Mr Brook gave evidence that the “adjacent 600m/t” of coal in
the email was a reference to the area pointed out to him on the larger map at
the second Wentworth Hotel meeting as the contiguous area.1291 He went on to
give evidence that the detail as to the volume of coal in the contiguous area
was provided to him by Moses Obeid “after the second [Wentworth Hotel]
meeting at subsequent meetings”1292 “around about the date” he sent the
email. He gave the following evidence:
In meeting with Moses Obeid on one of our catch-ups over coffee, he gave me
progressively more detail about what he thought the resource under his
1289
Exhibit A p 833.
1290
Exhibit A p 1151.
1291
T 2862.
1292
T 2863.
5KIPGFD[#WUV.++
properties looked like and so I had new information which I was

communicating with Mr Touw and Mr Pryor.1293
1284 In cross-examination, Mr Brook suggested that Moses Obeid provided that
information to him in “written form” in “notes” he could no longer locate. 1294
Ultimately, he accepted it was possible he obtained that information from the
research he “was able to obtain by public access”.1295
1285 On 22 September 2008, Mr Brook sent an email to Mr Yin of Tianci Inc

attaching Schiavo Map 3 and indicating that “Stage One” of the Mount Penny
project related to “100 Mt High Grade Thermal Coal” followed by “Stage Two”
which related to “700 Mt High Grade Thermal Coal”.1296 Mr Brook gave
evidence that Moses Obeid provided him with that information “over coffee”. 1297
He adhered to that evidence in cross-examination.1298 He said he was given to
understand “Stage one was in reference to the anticipated initial exploration
licence which was imminently going to be put up for tender … Stage two was
with reference to the anticipated contiguous area adjacent to the first
stage”.1299
1286 On 18 October 2008, in an email to Mr Rampe, CEO of Monaro Mining NL,

copied to Mr Grigor, Chairman of Monaro Mining NL, Mr Brook again referred
to “Stage Two of Mount Penny”1300 as a “reference to the anticipated
contiguous area adjacent to stage 1”.1301
1287 Email correspondence between Mr Brook, Mr Rampe and Mr Grigor on 24

October 2008 again refers to “Stage one” and “Stage two” of the Mount Penny
project.1302 In that email, Mr Brook said, “The concept of Stage 2 is based on
the expectation of a large continuation of the ore body”.1303 Mr Brook gave
1293
T 2862.
1294
T 3086-3087.
1295
T 3104-3105.
1296
Exhibit A p 2061.
1297
T 2911; T 2958.
1298
T 3229.
1299
T 2912.
1300
Exhibit A p 2317.
1301
T 2915.
1302
1303
Exhibit A p 2366.
5KIPGFD[#WUV.++
evidence that was a reference to the same concept of “stage two”, namely the
exploitation of the coal resource in the contiguous zone.1304
1288 Mr Rampe gave the following evidence about Mr Brook’s reference to

“Stage 2”:
I believe he is referring to obtaining additional mining rights adjacent to areas

of interest that have already been identified and as part of any agreement. So
what I think they’re saying is that if you have an agreement on a particular
resource that has been identified, then there is some sort of contiguous
extension of that agreement to resources that may be found nearby or
adjacent to the principal one that can be secured by title. 1305
1289 In the correspondence between Mr Brook, Mr Rampe and Mr Grigor on 24
October 2008, Mr Brook also indicated to Mr Rampe and Mr Grigor that he had
“been in contact with the parties who control the subject land for what I call
Stage One”.1306 Mr Brook gave evidence that was a reference to his contact
with Moses Obeid.1307
1290 By reply email, Mr Grigor indicated to Mr Brook, “We must stop short of
say[ing] there is a guarantee of a contiguous right … We need to make sure
that any contiguous licence comes under an area of influence clause so we
don’t get cut out”.1308 Mr Grigor gave the following evidence about that email:
A. Well, if you own a licence already and the ore body that you’re mining or
working on continues over the boundary, there’s some - I understand there is
some priority of preference; that if you apply for that, to enable the mining to
continue on a contiguous block, or a tenement, that there’s some concessions
in costs and approval processes.
Q. When you refer in your evidence to “apply”, you're talking about to the
department?
A. Yes.
Q. At that point in time, being 24 October 2008, what, if anything, was your
understanding as to a contiguous area in relation to Mount Penny?...
A. I didn’t really have any understanding. Ore bodies continue going. I didn't
have any geological knowledge or information as to whether it is realistic to
expect that mining could continue in that direction. That contiguous right was
something raised in the discussions with the Chinese because they just
wanted to get things as big as possible, but it was never something that came
1304
T 2918.
1305
T 1585.
1306
Exhibit A p 2366.
1307
T 2918.
1308
Exhibit A p 2365.
5KIPGFD[#WUV.++
up for discussion except to do with the discussions around the possibility of

those Chinese parties coming in.1309
1291 On 26 October 2008, Mr Brook sent an email to Mr Yin of Tianci Inc which he
then forwarded to Moses Obeid.1310 Attached to that document was a
document titled “Draft - Mt Penny MOU - GB rev”, styled as a Memorandum of
Understanding between “Monaro Mining NL” and an unspecified “Chinese
Partner”.1311 Under the title of “Background”, the following was indicated by Mr
Brook:
Monaro recognises that areas outside the boundaries of the Project may also
contain coal resources. These areas are to be defined by an Area of Influence
(“AOI”), dealings on which will also be incorporated into this MOU. The
location and boundaries of the AOI are attached as Annexure 1. 1312
1292 Annexure 1 is not part of the available evidence in Exhibit A.
1293 Mr Brook gave evidence he was “the main author of that document” and that
he forwarded it to Moses Obeid to keep “him abreast” of “progress with respect
to representing Monaro and trying to attract a financial or strategic investor” to
support Monaro Mining NL’s application for the grant of an EL at Mount Penny
EL.1313 Mr Brook had by that time told Moses Obeid that with the collapse of
Lehman Brothers he would “continue acting as an intermediary to try and
broker a deal” between the landholders alliance and Monaro Mining NL and
would keep Moses Obeid “abreast of [his] activities” in carrying out the
consultancy agreement with Monaro Mining NL.1314
1294 Mr Brook also gave evidence about a draft Memorandum of Understanding

between Monaro Mining NL and Shenyang Tianci Yulong Industrial Inc. dated
10 November 2008.1315 Again under the title of “Background”, the following was
indicated:
Monaro recognises that areas outside the boundaries of the [Mount Penny
Coal Release Area] Project may also contain coal resources. These areas are
to be defined by an Area of Influence (“AOI”), dealings on which will also be
1309
T 1836-1837.
1310
Exhibit A p 2381.
1311
Exhibit A p 2383.
1312
Exhibit A p 2383.
1313
T 2919.
1314
T 2906.
1315
5KIPGFD[#WUV.++
incorporated into this MOU. The location and boundaries of the AOI are
attached as Annexure 1.1316
1295 Again, Annexure 1 is not part of the available evidence in Exhibit A. Mr Brook
gave evidence that it depicted the location and boundaries of the project and
the area of influence referred to in the MOU.1317
1296 Mr Rampe confirmed that document bore his signature. He gave evidence the
document was drafted “to secure funding” for Monaro Mining NL’s EOI
application for the Mount Penny Coal Release Area.1318
1297 The concept of the “area of influence” was referred to again on 16 May 2009 in
an email from Mr Rampe to Mr Brook.1319 Mr Rampe proposed various
amendments to the agreement between Voope P/L and Monaro Mining N/L,
including that the agreement “encompass an ‘Area of Influence’ (AOI) for each
licence awarded to [Monaro Mining NL]”, the boundary of which “will be 100km
from any boundary of the awarded licence”.1320
1298 The contiguous area was ultimately the subject of the Letter of Joint Venture
Agreement between Cascade Coal P/L and Buffalo Resources P/L dated 5
June 2009. That document stated the following:
In addition the JV will pursue the grant and issue of relevant Exploration
Licences and Mining Approvals over the area contiguous to the [Mount Penny
Coal Release Area] and detailed on the attachment hereto currently known as
EL 6676 or any portion thereof (“Contiguous Area”).1321
1299 Mr Brook gave the following evidence:
Q. What conversation, if any, did you have in negotiations with representatives

from Cascade on this topic of contiguous area?
A. I had a conversation with Richard Poole where I insisted that the definition
of the contiguous area was specific and to that end I insisted that they use the
database. I cannot recall the name of the database or the industry database
that they were able to retrieve the information, but I insisted that we had that it
be clear and no ambiguity that we were referring to the contiguous area
adjacent to the exploration licence to which was the main subject as in stage 1
of this joint venture, so I had a very specific and direct conversation with
Richard Poole about that and he agreed.
1316
Exhibit A p 2839.
1317
T 2921.
1318
T 1585-1586.
1319
Exhibit A p 3724.
1320
Exhibit A p 3724.
1321
Exhibit A p 4131.
5KIPGFD[#WUV.++
Q. What, if anything, had you discussed with Moses Obeid about insisting on
this topic being addressed in the letter of agreement?
A. I told Moses that I would ensure it was my job, I told him that I would
ensure that the agreement included the contiguous area and that it was
defined clearly so that there couldn't be any misunderstandings with respect to
the agreement being forward.
Q. What discussion, if any, did you have with Moses Obeid about why this
would or should be included in the letter of agreement?
A. I told Moses that my experience in business is that if you leave anything
opaque, it can bite you down the path, so it was my role, and I took it seriously,
to ensure that the Obeids' interests were preserved and that because the
commercial objective here was not just the first exploration licence, but it was
the contiguous exploration licence which was believed to hold more coal, so I
told Moses I would do my best to ensure that the agreement with Cascade
included the evolution of the mine, including the contiguous area.
Q. What discussion, if any, did you have with representatives from Cascade
about the potential resource in the contiguous area?
A. I don't I do not recall having a conversation talking about the potential in
situ size and resource of the contiguous area.1322
1300 In cross-examination, Mr Brook gave evidence that the document which
appears in Exhibit A1323 as an attachment to the agreement with Cascade Coal
P/L was not the map which was originally attached to the agreement.1324 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”.1325 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.1326
Is the fourth act of misconduct established?

1301 Following an amendment to the fourth act of misconduct in the course of the
trial (the Crown accepting that the case it opened could not be made out) the
fourth act of misconduct, as amended, is in the following terms:
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
1322
T 2987-2988.
1323
Exhibit A p 4136.
1324
T 3092.
1325
T 3093.
1326
MFI 192 p 154.
5KIPGFD[#WUV.++
(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.
(Emphasis added.)
1302 In making that amendment, the Crown must be taken to have accepted that it
could not prove that the large copies of Wiles Map 1 and Wiles Map 2 Mr
Gibson requested Mr Mullard supply to the Minister’s office after the 4 June
2008 meeting (which were provided the following day), were A3 in size (the
size nominated in the unamended fourth act of misconduct). Mr Gibson’s
evidence was that the large maps he took receipt of on 5 June 2008 were
“about a metre” in length,1327 larger than the A3 copy of Wiles Map 2 in Exhibit
X, the version of Wiles Map 2 located during the execution of the Locaway P/L
search warrant in November 2011. The Crown must also be taken to have
accepted that it could not make a case that the maps were provided by Mr
Macdonald on or after 5 June 2008, the date particularised in the unamended
fourth act of misconduct.
1303 The Crown case as closed (after leave was granted to amend the fourth act of
misconduct) extends the timeframe within which it was alleged Mr Macdonald
“caused” a copy of both maps to be provided to the accused (or either of them
or a member of their family) to a period of two months between 9 May 2008
and 9 July 2009. That timeframe was fixed referable to first date when Wiles
Map 1 was available to Mr Macdonald,1328 and the second date to encompass
the second Wentworth Hotel meeting when Wiles Map 2 was produced.
1304 The Crown also advanced its case in closing that I would be satisfied that in
the period 9 May to 9 July 2008, Edward Obeid,1329 Moses Obeid,1330 or
another member of the Obeid family received from Mr Macdonald a copy of
Wiles Map 1 and Wiles Map 2 as an overt act by either or both of Edward
Obeid and Moses Obeid in furtherance of the same conspiracy.
1327
T 2534.
1328
Exhibit A p 757.
1329
MFI 134/1 par 8(c).
1330
MFI 134/1 par 11(b).
5KIPGFD[#WUV.++
1305 Neither in the particulars served on the accused in the course of the trial or in
closing submissions did the Crown seek to make a case that the maps, or
either of them, were received by Edward Obeid or Moses Obeid directly from
Mr Macdonald, as distinct from either of the accused receiving the maps
indirectly via another member of their family to whom the maps were directly
provided by Mr Macdonald.
1306 In addition, neither in the Crown case as particularised nor in closing

submissions was it clear whether, were a member of the Obeid family other
than Edward Obeid or Moses Obeid the person who Mr Macdonald caused to
be provided with the maps (for example, Paul Obeid who, on the Crown case,
had possession of Wiles Map 2 at the second Wentworth Hotel meeting on 7
July 2008 and in whose physical possession both maps were located in
November 2011) how, why and by what means that person provided the maps
to either or both of Edward Obeid and Moses Obeid, and whether that would
be sufficient to amount to Mr Macdonald “causing” the maps to be provided to
either or both of them.
1307 It is the Crown case, however, that at least by 7 July 2008, Moses Obeid was
familiar with Wiles Map 2 and what it depicted when, according to Mr Brook, he
confirmed what Paul Obeid was explaining was the significance of the map by
animatedly pointing to it and the contiguous area depicted on it.1331
1308 It also remained the Crown case that both Wiles Map 1 and Wiles Map 2 were
subsequently located during the execution of the Locaway P/L search warrant
in Paul Obeid’s office.1332 The maps seized under warrant were exhibited in the
trial as part of Exhibit X after a ruling of the legality of the search and the
admissibility of a number of documents seized under the warrant, including the
maps.1333
1309 The Crown advanced the following submission:
As to how the maps came to be there [at the Locaway P/L premises in
November 2011] and when the documents came into the Obeids' possession,
the Crown refers, in particular, to the evidence of Gardner Brook that at his
meeting with Moses, Paul and Gerard Obeid at the Wentworth Hotel in early
1331
MFI 181 par 348.
1332
MFI 181 par 219.
1333
R v Macdonald; R v Edward Obeid, R v Moses Obeid (No 13) [2020] NSWSC 1947.
5KIPGFD[#WUV.++
2008, Paul Obeid unfurled several maps, including one with a red
crosshatched S which is a very distinctive shape appearing on Wiles Map 2.
The Crown recognises that it is and can only be a matter of available
inferences but submits that there is a strong inference available that these
maps, which had been created by the DPI and emailed to Mr Macdonald's
office in May 2008, were provided by Ian Macdonald to the Obeids about that
time, certainly by early July 2008 when Mr Brook saw [Wiles Map 2].1334
1310 The Crown prosecutor also accepted in closing arguments that the Crown
could not prove the medium or format in which Mr Macdonald caused either of
the maps to be provided, or the circumstances in which that occurred. The
Crown did not, however, expressly abandon the submission, advanced in its
written closing submissions that, given Mr Macdonald’s computer illiteracy, “it
would have been relatively straightforward for [him] to obtain administrative
assistance in order to get copies of the maps (in electronic or hard copy form),
which he then conveyed to the Obeids”.1335 While that might be a submission
worthy of some consideration given that the maps were ultimately located at
the Locaway P/L premises on 23 November 2011 with no explanation as to
how they got there, I note that Mr Gibson, as Mr Macdonald’s Deputy Chief of
Staff, was not asked whether he facilitated the provision of the maps or their
transmission electronically to anyone, much less to an email address
associated with a member of the Obeid family. The Crown has produced no
email trail of that kind and has called no one else from within the Minister’s
administrative staff to give evidence that they received a request or direction to
render that assistance to the Minister or that they copied or printed maps for
the Minister.1336
1311 Mr Neil submitted that it is matter of pure speculation that Mr Macdonald or

anyone on his behalf arranged for the electronic transmission of the maps (or
either of them) or that he arranged for (or caused) hard copies of the maps in
A4, A3 or larger size to be provided to the accused or a member of the
accused’s family.
1334
T 3644.
1335
MFI 181 par 234.
1336
I note that Selina Rainger, Mr Macdonald’s “private secretary”, was not called by the Crown to give
evidence. Mr Martin and Mr Neil sought a Jones v Dunkel direction in respect of Ms Rainger (T 3802; MFI 192
pp 91, 93).
5KIPGFD[#WUV.++
1312 Mr Martin’s submissions focused on the Crown’s failure to establish that Mr

Macdonald was ever in physical possession of Wiles Map 1. In his further
submission, he emphasised that the only hard (paper) copy of Wiles Map 2
provided to Mr Macdonald was, according to Mr Gibson, “about a metre
long”1337 and that it was marked up at the 6 June 2008 meeting (that is, larger
than the A3 map seized under warrant at the Locaway P/L premises). Mr
Martin also emphasised that Mr Macdonald lacked the technological skill to
print or otherwise electronically transfer the version of Wiles Map 2 emailed to
Mr Gibson after Mr Gibson sent the “2 things mate email” after the meeting on
6 June 2008.1338
1313 As is obvious from the way the fourth act of misconduct is particularised, the
Crown also alleged that Mr Macdonald provided Wiles Map 1, or caused it to
be provided to the accused or a member of their family, also in breach of his
duty of confidentiality. It was, however, no part of the Crown case that Wiles
Map 1 was produced at the second Wentworth Hotel meeting. The Crown
case, so far as concerns Wiles Map 1, is that it was located with Wiles Map 2
during the execution of the search warrant at the Locaway P/L premises in
November 2011, and that I would infer from that fact that it was provided (or Mr
Macdonald caused it to be provided) within the same timeframe as Wiles Map
2. I was invited by Mr Neil in his closing submissions to revisit the
circumstances in which I was satisfied that Wiles Maps 1 and 2 were located
and seized in the execution of the search warrant from the Locaway P/L
premises in November 2011. I decline that invitation. For the reasons set out in
detail in the interlocutory judgment,1339 I am satisfied that an A3 copy of each of
Wiles Map 1 and Wiles Map 2 were located together with various other
documents in a yellow manila folder marked “Dulux” within a yellow envelope
marked “To be collected Gerard Obeid” from a desk located at the rear of Paul
Obeid’s office at the Locaway P/L 1340 premises on 23 November 2011.
Accordingly, I am satisfied that both Wiles Maps 1 and 2 were in the physical
custody and control of Paul Obeid as at November 2011.
1337
T 2534.
1338
MFI 190 p 41.
1339
1340
The company which purchased Cherrydale Park in 2007.
5KIPGFD[#WUV.++
1314 While that is some evidence from which to infer that at least Wiles Map 2 was
in Paul Obeid’s physical custody and control on 7 July 2008 at second
Wentworth Hotel meeting (given that he arrived and left with a map that
conforms visually with what I am satisfied is the somewhat unique configuration
and colour of Wiles Map 2) that fact will be established as a matter of
overwhelming inference if I am satisfied that Mr Brook was in fact shown Wiles
Map 2 in the course of his discussion with Paul Obeid and Moses Obeid
concerning 100Mt of coal beneath Cherrydale Park and the adjoining
properties1341 and the more valuable coal resource in the adjacent (or
contiguous) zone.
Was Wiles Map 2 produced to Paul Obeid at the second Wentworth Hotel
meeting?
1315 During the Crown’s closing arguments, the Crown prosecutor relied upon the
way in which Wiles Map 2 was deployed in the course of the second
Wentworth Hotel meeting in support of the Crown case that Wiles Map 2 was
provided by Mr Macdonald to the Obeids at or close to that date, in order that
they might attract a potential investor in Lehman Brothers or an equity partner
to a coal mining project that had the potential to confer a very substantial
financial benefit on the Obeid family. That being the case, in the Crown’s
submission it did not matter whether Paul Obeid’s nomination of the adjacent
or contiguous area to Mr Brook enthusiastically promoted by Moses Obeid and
the meeting and, on Mr Brook’s evidence, in his dealings with Moses Obeid
that followed it, was “speculative”.1342
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 copied of Wiles
Map 2 or the copies of those documents that were at that point in the trial
marked MFI 39 (and which ultimately were admitted as part of Exhibit X), as
the documents seized under warrant from the Locaway P/L premises, or in any
other form.1343 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
1341
T 2846.
1342
T 3097.
1343
T 2816.
5KIPGFD[#WUV.++
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.
1317 It is, however, of equal significance that Wiles Map 2 was not produced during
the course of Mr Brook’s lengthy cross-examination by Mr Neil.1344 Mr Neil
relied instead upon what he submitted was Mr Brook’s failure to refer to a
number of critical and obvious features of Wiles Map 2, including the legend on
the side of the map on which the red hatched area was depicted as a “potential
open cut area” or the fact that the map was dated 30 May 2008 and headed in
bold “Map 1”. Mr Neil also drew to attention to the fact that in cross-
examination Mr Brook said the map he was shown at the meeting had “no
measurements with respect to the resource or anything about mining that I
could tell”,1345 despite the red/pink hatched area showing, to scale, a very
significant potential coal resource.
The issue of Mr Brook’s credibility on the question whether Wiles Map 2 was
produced at the second Wentworth Hotel meeting and more generally
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
1344
Mr Brook was shown a number of other maps in cross -examination which he said were not the maps he
was shown at the second Wentworth Hotel meeting. These maps were marked for identification (MFI 142,
143, 144) but not tendered in evidence.
1345
T 3043.
5KIPGFD[#WUV.++
of misconduct was deployed by him (as he claimed on Moses Obeid’s behalf)

in his dealings with Monaro Mining NL.
1320 Mr Brook gave evidence in the trial over seven days. He gave evidence via
audio visual link from a hotel in Batam, Indonesia over objection. 1346 Although
Mr Brook was a competent and compellable witness if he were within the
jurisdiction, if he had not agreed to cooperate with the ODPP and the Court by
making himself available to give his evidence via audio visual link, he would not
have been available to be called as a witness in the Crown case.
1321 In closing submissions, the Crown invited me to be “cautious” in my

assessment of Mr Brook’s credibility and reliability.1347 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.
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
1346
On 9 October 2020, I made an order pursuant to s 22C of the Evidence (Audio and Audio Visual Links) Act
1998 (NSW) that Mr Brook give evidence by an audio visual link from Indonesia. T 2591.
1347
MFI 180 par 45.
5KIPGFD[#WUV.++
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.1348
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.1349 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.1350 Although Mr Brook claimed no recollection of a telephone
conversation with Mr Fox on 18 May 2012 (after he had given evidence in the
1348
Mr Neil relied on Fennell v The Queen [2019] HCA 37 at [81] where the Court acknowledged the fallibility
and plasticity of memory and the possibility of contamination of recollection and the influences of internal bias
on memory and R v Clout (1995) 41 NSWLR 312 where Kirby A-CJ addressed the need as for the jury’s
attention to be drawn to those same considerations where the evidence was not “peripheral”.
1349
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1296 at [53] -[59].
1350
T 3109.
5KIPGFD[#WUV.++
private hearing) in which he enquired whether he was in ICAC’s “gunsights”

and where he offered himself as an “ally”,1351 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’”1352 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”.1353
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
1351
Exhibit 29.
1352
Exhibit 30.
1353
Exhibit 31.
5KIPGFD[#WUV.++
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.
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.
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
5KIPGFD[#WUV.++
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.
1332 The question which next presents is whether confidentiality relevantly attached
to either or both of Wiles Map 1 and Wiles Map 2. That question, in turn,
requires a review of the circumstances the maps were produced by Ms Wiles
and for what purpose. That issue was addressed by me in detail earlier in this
judgment, as to which see par 767 and following in respect of Wiles Map 1 and
par 897 and following in respect of Wiles Map 2 above.
Submissions of the Crown on the confidentiality of Wiles Map 1

1333 The Crown submitted that Wiles Map 1 was confidential, as and from 9 May
2008, because it was incorporated as part of a Ministerial Briefing. 1354 The
Crown advanced the general submission in closing that I would be satisfied
that all “material from the DPI to the Minister’s office” (including Wiles Map 1
and Wiles Map 2) was inherently confidential both in fact and as a matter of
law.1355
1334 In respect of Wiles Map 2, the Crown submitted that it was confidential
because it was also part of a Ministerial Briefing and was a “working document
for a potential coal release area”.1356
1335 Mr Mullard gave evidence that he did not provide the email chain of 9 May
2008, Wiles Map 1, or the Ministerial Briefing in which Wiles Map 1 was
embedded, to anyone outside the Department because those documents were
as he described as “part of a ministerial enquiry”.1357 He said that although:
… there was nothing fundamentally confidential in terms of the information that

is shown on [Wiles Map 1], because it is all available publicly. But, because it
1354
MFI 181 par 220.
1355
MFI 181 par 221. See MFI 181 par 138.
1356
MFI 181 par 220.
1357
T 661.
5KIPGFD[#WUV.++
was the basis of a ministerial submission, we would not make it available to

people outside unless the Minister had approved it, or it could be subject to a
freedom of information request and that could very well be successful because
fundamentally there is nothing on the map that couldn't be accessed by
anyone.
1336 In cross-examination by Mr Neil, Mr Mullard agreed that the information per se
in Wiles Map 1 was not confidential, neither was the information on the map
sensitive, and that the map contained “purely factual material”. 1358 He gave
evidence that the map “possibly” lost its quality of confidentiality when the EOI
process concluded at the earliest, or later when EL 7406 (the Mount Penny EL)
was granted in October 2009.1359
1337 Ms Wiles gave evidence that she did not provide a copy of “Wiles Map 1” to
anyone outside the Department “because it’s confidential data within the
Department”.1360 In cross-examination, Ms Wiles again gave evidence that
“because [Wiles Map 1] was being created for the Department, it was in-house,
it was confidential”.1361 However, she accepted with respect to the information
contained in Wiles Map 1 that “everything on this map would be publicly
available for anybody that wanted to pull up the map, but not this actual
map”.1362
1338 Mr Hawkes gave evidence that, in respect of requests from the Minister’s office
generally:
Appropriate confidentiality and replies or responses of information should only

go to the person that requested the information; and I’m talking about the
person that requested the information, whether it be in the department or the
Minister's office, plus any appropriate higher level or delegated officers that
should be also aware of the information.1363
1339 In respect of Ministerial Briefings, Mr Hawkes gave evidence that:
… each of those documents was a template and there was a signature path
and a final recipient as such. Then those documents were signed off by
appropriate delegation and then the document was sent to the Minister's office
for appropriate use within the Minister's office.1364
1358
T 1105.
1359
T 1115.
1360
T 2169.
1361
T 2200.
1362
T 2201.
1363
T 1133-1134.
1364
T 1134.
5KIPGFD[#WUV.++
1340 Mr Larkings gave evidence that he did not provide a copy of his email of 9 May
2008 or its contents Wiles Map 1 to anyone outside of the Department or
outside the Minister’s office because he understood them to be confidential or
sensitive.
1341 Mr Gibson gave evidence that the Ministerial Briefing was “a commercially
sensitive document and therefore … it should not be made available to the
public”1365. In respect of Wiles Map 1, he gave evidence that “it should be
afforded the same protection” as the Ministerial Briefing.1366 He did not provide
copies of either the Ministerial Briefing or Wiles Map 1 to anyone outside the
Minister’s office.
Submissions of the Crown on the confidentiality of Wiles Map 2

1342 The Crown also relied on the following evidence in regard to the confidentiality
of Wiles Map 2:
(1) Mr Mullard gave evidence that the information depicted on Wiles Map 2,
including the potential open cut area, was not confidential information
per se.1367 However, he explained that because of the purpose for which
Wiles Map 2 was prepared, namely a Ministerial meeting, the map itself
was confidential. In cross-examination, he accepted the proposition that
a person who did not understand the context in which Wiles Map 2 was
created would not understand that confidentiality attached to it.1368 He
conceded that it “possibly” lost its confidential status once the EOI
process concluded.1369
(2) Ms Wiles also considered Wiles Map 2 to be confidential essentially for
the same reason as Mr Mullard explained. She gave evidence that she
did not provide the map to anyone outside the DPI for that reason. 1370
(3) Mr Gibson likewise did not provide a copy of Wiles Map 2 to anyone
outside the Minister’s office because he considered it to be
“commercially sensitive and not for public consumption”.1371
Submissions of the accused as to whether Wiles Map 1 and/or Wiles Map 2
were confidential
1343 Without conceding that Mr Macdonald provided or caused to be provided either
of the maps the subject of the fourth act of misconduct, Mr Martin submitted
1365
T 2465.
1366
T 2465.
1367
T 1039, 1107, 1109.
1368
T 1039-1040.
1369
T 1114-1115.
1370
T 2180.
1371
T 2474.
5KIPGFD[#WUV.++
that s 365(1)(e) of the Mining Act permitted Mr Macdonald to release

confidential information in connection with the administration and execution of
the Act. He submitted it was “reasonable” for the Minister to release information
(pursuant to s 365) where, for example, that information was provided to a
global investment bank to pursue joint ventures with companies who might
invest in mining or exploration in New South Wales.1372
1344 Having cross-examined Mr Mullard with a view to establishing that anyone in

receipt of Wiles Map 2 would need to understand the context in which that map
was prepared, namely as part of a Ministerial Briefing, in order to appreciate
the confidentiality which attached to it, Ms Francis submitted that there was a
paucity of evidence that Edward Obeid did anything with any documents
alleged to be confidential, including, relevantly, Wiles Map 1 and Wiles Map
2.1373
1345 Mr Neil submitted that, in circumstances where there was no written policy to
determine which information could be publicly disclosed about the upcoming
EOI process, and where the scope of any obligation of confidence on
Ministerial and Departmental staff was not established by the evidence in any
event,1374 the ambiguity in the evidence as to what could and could not be
disclosed is patent and, for that reason, no adverse inferences could be drawn
from the provision of the information in question to Moses Obeid 1375 and that, in
any case, the Crown had not established the scope of Mr Macdonald’s
obligation of confidentiality as it arises under the Ministerial Code of Conduct.
1346 The Crown accepted that if, after considering all the evidence, there remains,
in my assessment, a reasonable possibility that even if Mr Macdonald caused
Wiles Map 1 and Wiles Map 2 to be provided to Edward Obeid, Moses Obeid,
or another member of their family, it was not as an act in furtherance of the
conspiracy charged but for some other reason or motivation (including, I
interpolate, as an act in furtherance of a different conspiracy), that conduct
would carry no weight in proof of the existence of the conspiracy. Neither would
1372
T 3777. Mr Neil made the substantively the same submission at MFI 192 p 185.
1373
T 3820-3821.
1374
MFI 192 p 194.
1375
MFI 192 p 182.
5KIPGFD[#WUV.++
it allow for a finding that the receipt of the maps, or either of them, by Edward
Obeid or Moses Obeid was evidence capable of establishing their participation
in the conspiracy.1376
Is the fourth act of misconduct established and, if so, was it committed in

furtherance of the conspiracy?
1347 In circumstances where I am unable to comfortably reason to a finding that
Wiles Map 1 was provided by Mr Macdonald to Edward Obeid, Moses Obeid,
or another member of their family during the currency of the conspiracy, it is
unnecessary to consider whether the necessary quality of confidence attached
to that document when it was provided by Mr Macdonald (as I am confident it
was) whenever that occurred. That the Crown has not proved the provision of
Wiles Map 1 as an act of misconduct committed in furtherance of the
conspiracy is not fatal to proof of the fourth act of misconduct.
1348 In considering whether the information embedded in Wiles Map 2 or the map
itself is confidential, two questions arise:
(1) Does Mr Macdonald’s duty of confidentiality as it arises under the

Ministerial Code of Conduct alone render that information confidential?
(2) If not, does the map have the necessary quality of confidence when the
Ministerial Code of Conduct is considered together with the principles
which inform:
(a) the equitable duty of confidence; and
(b) the general duty of confidence owed by Ministers of the Crown in
the way I have considered those principles earlier.1377
1349 In analysing the question that way, if I am satisfied Wiles Map 2 was
confidential in the hands of Mr Macdonald as the Minister for Mineral
Resources when it was provided to Edward Obeid, Moses Obeid or another
member of their family (that is, on some date between 1 June and 7 July 2008),
it will not strictly be necessary to consider whether that information was also
communicated in breach of Mr Macdonald’s Ministerial duty of impartiality,
since a wilful breach of his Ministerial duties and obligations will be made out in
any event.
1376
T 3612.
1377
See par 280.
5KIPGFD[#WUV.++
1350 If, on the other hand, it is necessary to consider whether Mr Macdonald

breached his duty of impartiality as I have interpreted that duty in the Ministerial
Code of Conduct,1378 breach of that duty may also be informed by the fact that
in providing the information, Mr Macdonald, in the language of Clause 4.2 of
the Ministerial Code of Conduct, conferred a “private advantage”1379 on the
recipient of the information in circumstances where the evidence establishes
that Wiles Map 2 was provided to Mr Macdonald in the office he held as
Minister for Minister Resources and where the map, in specie, was not
otherwise publicly available, even if at the time it was provided (again, as late
as 7 July 2008) it did not retain the quality of confidence in the strict sense.
1351 Similarly, if I am not satisfied that Wiles Map 2 was confidential in the hands of
Mr Macdonald as the Minister at the time it was provided to Edward Obeid,
Moses Obeid or another member of their family, again in the strict sense of the
information having the necessary quality of confidence before a breach of a
duty of confidentiality is made out, I will need to consider whether the provision
of that information is capable of constituting, and in fact constitutes, a breach of
Mr Macdonald’s Ministerial duty of impartiality.
1352 To restate it, the Ministerial Code of Conduct provides as a general obligation:
1. Ministers will perform their duties impartially, disinterestingly [sic] and in the
best interests of the people of New South Wales (emphasis added). 1380
1353 The Crown advanced no submission as to how I should reason to a finding that
of the five acts of misconduct alleged to have been committed in breach of both
the duties of confidentiality and impartiality (the fourth and the sixth to the
ninth) any was committed in breach of the duty of impartiality only, that is, what
approach I should take if I find the relevant information does not have the
necessary quality of confidence to inform a finding that the provision of the
information was in breach of Mr Macdonald’s duty of confidentiality.
1354 That is a question which I have resolved can only be meaningfully answered
referable to the circumstances in which the particular information was provided,
again assuming that fact is established.
1378
1379
Exhibit A p 7452.
1380
Exhibit A p 7447.
5KIPGFD[#WUV.++
1355 The lack of clarity in the evidence as to when Wiles Map 2 was provided by Mr
Macdonald and the reason he provided it, creates in my mind a measure of
uncertainty as to whether the information in Wiles Map 2 was confidential at the
time it was provided by Mr Macdonald (whenever that was prior to 7 July 2008)
referable to the purposive test in Clause 4.2 of the Ministerial Code of Conduct
(on the Crown case the source of the duty of confidentiality). That clause
provides that information in the possession of a Minister must not be “used” to
gain a private advantage. I am left with that residual degree of uncertainty
despite the use which was made of the map at the second Wentworth Hotel
meeting to promote the commercial viability of a coal mining project to Mr
Brook.
1356 I am however of the firm and settled view that Mr Macdonald’s provision of
Wiles Map 2 to a member of the Obeid family for their private use was contrary
to the disinterested and impartial way in which he was obliged to deal with
information he obtained from time to time as the Minister for Mineral Resources
in circumstances where he knew from his dealings with the DPI from as early
as 4 June 2008 through to and including 17 June 2008, and in any case well in
advance of 7 July 2008 (the latest date by which Wiles Map 2 could have been
provided), that the Obeids owned property in the area of Mount Penny in the
Bylong Valley, the area depicted on Wiles Map 2 as incorporated within the
available coal resource. I am further satisfied Mr Macdonald’s provision of
Wiles Map 2 was a wilful breach of his duty of impartiality, it being provided in
the knowledge that land at Mount Penny which included their rural holdings in
that area, was or was likely to be released as a new coal release area and
where the map visualised that coal resource as part of a larger coal resource.
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.
5KIPGFD[#WUV.++
1358 Accordingly, I am satisfied the fourth act of misconduct is established. I am

also satisfied that Mr Macdonald would not have misconducted himself in that
way were it not for the improper purpose alleged by the Crown.
The second Wentworth Hotel meeting concludes

1359 In cross-examination, Mr Brook said while Moses Obeid was his “main liaison”
and the only member of the Obeid family with whom he had ongoing
commercial dealings after the second Wentworth Hotel meeting, at that
meeting, it appeared to him that Paul Obeid was the “senior figure” who
“understood the issue better than anyone else”.1381 However, he went on to
give the following evidence:
… my impression was that Moses very much took the lead of his brother with
respect to which direction to go and which direction they wished me to go with
respect to my negotiations and activities in so forth as Monaro is
concerned.1382
1360 Mr Brook confirmed that at the second Wentworth Hotel meeting, after the
conversation focussing on the larger map, there was further discussion during
which Moses Obeid and Paul Obeid effectively jointly requested him to see
whether one of Lehman Brothers’ clients that might be in the coal business
might enter into a joint venture with “the landholders” to tender for an EL or, if
not, whether he knew of another company that may wish to do so. He said that
Paul Obeid and Moses Obeid were both “very enthusiastic” about the potential
involvement of Lehman Brothers in a coal mining venture.1383
1361 At the conclusion of the meeting, Mr Brook said Paul Obeid “rolled” up the
maps and “put them back in his cylinder”.1384
Mr Brook’s actions after the second Wentworth Hotel meeting

1362 On 7 July 2008, following the second Wentworth Hotel meeting,1385 Mr Brook
emailed Mr Wong, his superior based in the Hong Kong office of Lehman
Brothers, enquiring about “clients” of Lehman Brothers who might be
“interested in securing off-take of high grade thermal coal”, in respect of a coal
1381
T 3097.
1382
T 3098.
1383
T 2849.
1384
T 2849.
1385
T 2851.
5KIPGFD[#WUV.++
resource “thought to be circa 100m/t” with “Government tenders coming

up”.1386 Mr Brook gave evidence that he made that enquiry on the basis of
information he had been given by Paul Obeid and Moses Obeid at the meeting
that day and that he made the approach to Mr Wong following through with his
undertaking to the Obeids that he would take up enquiries with Lehman
Brothers with a view to identifying whether any of Lehman Brothers’ customers
might be interested in a joint venture of the kind contemplated. 1387
1363 It was never made clear in the evidence the basis upon which Mr Brook also
represented in the email to Mr Wong that it was proposed that Lehman
Brothers form a “partnership with an established Aussie coal miner” 1388 when,
as I understand the way the Crown puts its case, no Australian coal mine was
nominated or mentioned in the second Wentworth Hotel meeting. It may be
that this is simply an indication of Mr Brook’s capacity to endeavour to sweeten
up a proposal for the consideration of his superiors at Lehman Brothers, or a
reflection of his tendency to hyperbole or because he has, for other reasons,
not given an entirely truthful account of everything he was told at the meeting
or a combination of all three motivations. These are questions I do not need to
resolve.
The seventh alleged act of misconduct

1364 The seventh act of misconduct is particularised by the Crown as follows: 1389
On or after 7 July 2008, Macdonald caused Edward Obeid, Moses Obeid or

another member of the Obeid family, to be provided with:
and in breach of his duty of confidentiality as the list was confidential.
1365 It was the Crown case as particularised in the Revised Statement of Particulars
that on or after 7 July 2008 Edward Obeid,1390 Moses Obeid1391 or another
1386
Exhibit A p 1107.
1387
T 2851.
1388
Exhibit A p 1107.
1389
MFI 134/1 par 3(g).
1390
MFI 134/1 par 8(e).
5KIPGFD[#WUV.++
member of the Obeid family either received the document titled “Company EOI
2 July 2008” containing a list of companies proposed to be invited to participate
in the EOI (the 2 July 2008 list) from Mr Macdonald, or he provided them with
the information on that list.
1366 It was the Crown case in closing that the 2 July 2008 list was information
Moses Obeid provided to Mr Brook on 9 July 2008 in a handwritten list (the
handwritten list).1392 It was also the Crown case that the timing of Moses
Obeid’s provision of that information to Mr Brook permits me to find, as a
matter of inference, either that the 2 July 2008 list was in Moses Obeid’s
possession by 9 July 2008 or that the form and content of the handwritten list,
in his handwriting, allows me to draw the further inference that either that list,
or the information it contained, sourced from Mr Macdonald.
1367 It was not the Crown case that Mr Macdonald provided Moses Obeid with the
final, settled list of the 44 companies ultimately invited to participate in the EOI
process, or the identity of the companies on that list. The composition of the list
of 44 companies ultimately invited to participate in the EOI process was refined
by the DPI over several months 1393 and finalised by 9 September 2008. On that
date, Mr Macdonald approved the release of EOI packages for the eleven coal
allocation areas1394 and letters of invitation were sent to those companies
invited to participate in the EOI.1395
1368 The seventh act of misconduct, as particularised, is that the 2 July 2008 list
contained a list of companies proposed to be invited to participate in the EOI
process, not that those companies, would, in fact, be invited to participate.
1391
MFI 134/1 par 11(f).
1392
MFI 181 pars 368, 374-381.
1393
An initial list of companies was emailed by Ms Moloney to Mr Mullard (copied to Mr Holmes) on 18 July
2008 (Exhibit A p 1141). Four lists were then exchanged between Mr Mullard and Ms Moloney on 23 July 2008
(Exhibit A pp 1196-1197; 1201; 1219; 1221-1222). Mr Mullard also sent one of those lists to Ms Madden
(Exhibit A p 1203) who then sent it to Mr Munnings (Exhibit A p 1207) Mr Gibson gave evidence Mr Munnings
provided him with a “hard copy” of that document which he then provided to the Minister (T 2491). Also on 23
July 2008, a Ministerial Briefing Note was issued which contained a further a list of companies (Exhibit A p
1248). Mr Coutts gave evidence that a further list was submitted “to the Minister’s office” in “around August”
for “feedback” (T 350). A “penultimate” (T 1074) list was contained in a Director -General Briefing Note dated 9
September 2008 (Exhibit A p 1966; T 1075-1077). A final list (not in evidence) then “refined” the list included in
that Briefing Note (T 365).
1394
T 364.
1395
Exhibit A pp 1991.
5KIPGFD[#WUV.++
1369 The Crown accepted that if, after considering all the facts and circumstances
relevant to proof of the seventh act of misconduct, there remains, in my
assessment, a reasonable possibility that Mr Macdonald provided the list of
companies or information on that list, not as an act in furtherance of the
conspiracy alleged but for some other reason or motivation, even were I
satisfied that it constituted an act of misconduct in the legal sense, it would
carry no weight in proof of the existence of the conspiracy. Neither would it
allow for a finding that the receipt of that information by either the accused
would be capable of establishing the participation of either or both of them in
the conspiracy.1396
The evidence relevant to the preparation of the 2 July 2008 list

1370 At, or shortly after,1397 a meeting at Parliament House on 17 June 2008
convened by Mr Macdonald 1398 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
process1399 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”.1400
1371 In cross-examination by Mr Martin, Mr Mullard accepted that Mr Macdonald,

possibly through Mr Gibson, asked him “to ask the [D]epartment to compile a
list of all interested companies known to the [D]epartment that met the criteria
of small companies being interested in coalmining in general”. 1401
1372 At Mr Mullard’s request, various iterations of that list were prepared by Ms

Moloney utilising the Coal Register.1402
1396
T 3612.
1397
MFI 181 par 360.
1398
Exhibit A p 965.
1399
T 708, 833, 834.
1400
In cross-examination with leave by the Crown, Mr Mullard a ccepted that request for the list of companies
was made either by Mr Macdonald through Mr Gibson or by Mr Macdonald “directly”. See T 834.
1401
T 962.
1402
Exhibit AN; T 833, 1073. In preparing the list, Ms Moloney also referred to companies with existing titles in
the Western Coalfield: T 2267 and 2300.
5KIPGFD[#WUV.++
The Coal Register as the primary source from which the list was compiled
1373 Ms Moloney gave evidence she prepared and maintained the Coal
Register,1403 a spreadsheet in which she recorded companies which had
expressed an interest in coal resources in New South Wales, areas and
coalfields in which those companies had expressed interest (and other indicia),
including whether a company was ultimately allocated any of the coal
resources in which it had expressed interest.1404 The Coal Register was also
used by Ms Moloney to record the date and outcomes of meetings of the Coal
Allocation Committee, an internal DPI committee which assessed the
expressions of interest recorded on the Coal Register. Mr Mullard gave
evidence that various people within the Department had access to the Coal
Register, including members of the Coal Allocation Committee, Mr Agnew and
other members of the Titles Section, Mr Holmes of the Mineral Development
Group and Ms Moloney.
Was the Coal Register confidential?

1374 Ms Moloney gave evidence the outcome of Coal Allocation Committee
meetings were “confidential”, as was the Coal Register itself.1405 Information as
to the areas in which coal companies had expressed interest was also
“considered… confidential”.1406 Mr Mullard confirmed that the Coal Register
was not publicly available because it contained “expressions of interest by
companies that may contain commercial in confidence information”. 1407 Mr
Mullard also gave evidence that the DPI did not provide the Coal Register to
the Minister’s office in specie, but that the Department did utilise the Coal
Register to “brief” the Minister by informing him, from time to time, that
particular companies had expressed an interest in particular coal resources in
particular areas.1408
1403
T 2240, 2243.
1404
T 2244-2246.
1405
T 2245.
1406
T 2246.
1407
T 621.
1408
T 669.
5KIPGFD[#WUV.++
The earlier draft lists of companies created by the DPI

1375 On 19 June 2008 the first two iterations of the list of companies proposed to be
invited to participate in the EOI were prepared by Ms Moloney. Ms Moloney
emailed both lists to Mr Mullard that day.1409 She gave evidence that the
information contained in those lists was derived from the Coal Register. 1410
1376 The first version of the list of companies (comprising 19 companies) reads as
follows:
Companies which have registered [with the DPI] an interest in a coal allocation
in the Western Coalfield:
● Enhance Place Pty Ltd
● White Mining
● Kimba Resource
● Shield Energy Ltd
● Monaro Mining NL
● Bloomfield Collieries Pty Ltd
● Xstrata
Coal Companies with current titles in the Western Coalfields
● Centennial Coal
● Wallerawang Collieries
● Anglo Coal
● Boulder Coal
● Clarence Colliery Pty Ltd
● Lithgow Coal Company
● Coalpac Pty Ltd
● Genders Mining (Oakbridge)
● Xstrata
● Moolarben Joint Venture (White Mining)
● Peabody1411
1377 A second (updated) version of that list (comprising 14 companies) was sent by
email to Mr Mullard by Ms Moloney half an hour later. It reads as follows:
1409
1410
T 2267.
1411
Exhibit A p 969.
5KIPGFD[#WUV.++
Companies which have registered [with the DPI] an interest in a coal allocation
in the Western Coalfield:
● White Mining
● Kimba Resource
● Centennial Coal
● Boulder Coal
● Coalpac Pty Ltd
● Genders Mining (Oakbridge)1412
1378 Xstrata, which was included in both sub-categories in the first list, was not
included in either subcategory in the second (updated) list. Anglo Coal,
Moorlarben Joint Venture (White Mining) and Peabody, which were included in
the second category in the first list, were not included in the second list. Mr
Mullard gave evidence that the “large” companies included in the first draft of
the list (namely Anglo Coal, Xstrata, Moolarben Joint Venture (White Mining)
and Peabody) were removed because the Minister wanted to “restrict” the EOI
process as it related to the eleven small to medium coal release areas to the
smaller to medium sized mining companies.1413
The 2 July 2008 list

1379 On 2 July 2008, responsive to Mr Gibson’s request of Mr Mullard to “expand
the list”1414 to include more small companies, a third version of the list of
companies was prepared by Ms Moloney and emailed to Mr Mullard. 1415
1412
Exhibit A p 973.
1413
T 712.
1414
T 835.
1415
Exhibit A p 1051.
5KIPGFD[#WUV.++
1380 The updated version of the list was titled “Company EOI 2 July 2008”. It
expanded the list of 14 companies prepared by Ms Moloney on 19 June 2008
to a list of 38 companies by the inclusion of a third category of 24 companies
namely “Other small companies which have expressed an interest elsewhere in
the State” (companies which had expressed interest in the Gunnedah Basin or
the Hunter Coalfield1416). It is this list of 38 companies that is the subject of the
seventh alleged act of misconduct.
1381 Ms Moloney gave evidence that she prepared the 2 July 2008 list with
reference to the Coal Register.
1382 The 2 July 2008 list reads as follows:
Companies which have registered an interest in a coal allocation in the

Western Coalfield:
● White Mining
● Kimba Resource
● Centennial Coal
● Boulder Coal
● Coalpac Pty Ltd
● Genders Mining (Oakbridge)
Other small companies which have expressed [an] interest elsewhere in the
State.
● Whitehaven Coal Mining
● Gloucester Coal
● Tianda Resources
● PalarisMining Total Mining Management Services.
1416
T 714-715.
5KIPGFD[#WUV.++
● Gunnedah Resources Limited

● Creek Resources Pty Ltd
● Independent Coal Pty Ltd
● Hunter Valley Mining Corporation
● Atlas Coal Enterprises Pty Ltd
● Manata Resources Pty Ltd
● Earth Technics Pty Limited
● Simitar Resources Pty Ltd
● ResCo Services P/L
● Dellworth Pty Ltd
● Mirrabooka South Pty Limited
● White Mining
● Spur Hill Joint Venture
● Kemmis Coal Pty Ltd
● Newcastle Coal Company
● Hydromining Coal Australia
● Caloon Mining Pty Limited
● Gujarat NRE Australia
● Gallipoli Mining
● RMI (Resource Management International) 1417
1383 Tianda Resources P/L was included in the 2 July 2008 list under the new
subheading “other small companies which have expressed interest elsewhere
in the State”.1418 It was not included in either of the first list or the updated list
prepared on 19 June 2008. The inclusion of the third category of companies in
the 2 July 2008 list was at Mr Macdonald’s direction. The inclusion of Tianda
Resources P/L, specifically, was also at his direction although there is no
evidence as to precisely when that direction was given.1419
1384 In chief, Mr Mullard explained he was given to understand by Mr Gibson that

“the Minister wanted to open [the EOI process] up to virtually all small
companies, not necessarily those who had just registered an interest in the
1417
Exhibit A p 1053.
1418
Exhibit A p 1053.
1419
T 835.
5KIPGFD[#WUV.++
Western Coalfield”.1420 In cross-examination by Mr Neil, Mr Mullard agreed the

“evolution” of the list of companies “was driven by the Minister” who wanted
“more [coal exploration] areas” and “more companies” to be reflected in the
list.1421
The form in which the 2 July 2008 list was provided to the Minister
1385 Mr Gibson gave evidence that the 2 July 2008 list was “provided to the
Minister’s office in a form of a ‘briefing note’ from the [D]epartment”. 1422
1386 Mr Neil submitted that “the only Ministerial Briefing containing a version of the
list was the briefing prepared on 23 July 2008,”1423 that is, after 8 July 2008
when on the Crown case Mr Macdonald provided Moses Obeid with the 2 July
2008 list or the information on it, the conduct the subject of the seventh act of
misconduct.
1387 I do not accept that submission for the following reasons:
(1) The terms “Ministerial Briefing”, “Information Brief” and “Briefing Note”
were used, to some extent, interchangeably and imprecisely throughout
the trial.
(2) Mr Gibson explained that a “briefing note” was distinct from an
“information brief” but did not otherwise explain their distinguishing
features.1424 The Ministerial Briefings which appear throughout Exhibit A
are headed with a page titled “NSW DPI-MR Ministerial Briefing”.1425 Dr
Sheldrake gave evidence that a Ministerial Briefing Note or Ministerial
Letter took the form of a document headed “DPI – Minerals Ministerial
Letter”.1426
(3) It appears that the term “briefing note” may be used to describe
documents which were provided to the Minister which were not
formatted as a formal Ministerial Briefing.
(4) The Ministerial Briefing dated 23 July 2008 1427 to which Mr Neil referred
was formatted as a Ministerial Briefing as distinct from the “briefing
note”1428 described by Mr Gibson.
1420
T 714.
1421
T 1073.
1422
T 2490.
1423
MFI 192 p 163; Exhibit A p 1248.
1424
T 2458.
1425
See for example Exhibit A pp 867-875, 1239-1249.
1426
T 2329; Exhibit A p 2319.
1427
1428
T 2490.
5KIPGFD[#WUV.++
1388 In circumstances where I am otherwise satisfied from Mr Gibson’s evidence

that the 2 July 2008 list was provided to the Minister’s office and to the Minister
at the first available opportunity,1429 the precise form that the document took is
immaterial.
The 7 July 2008 meeting with the Minister
1389 Mr Mullard gave evidence that, on 7 July 2008, (incidentally the same day as
the second Wentworth Hotel meeting), at a meeting at the Minister's office
attended by Messrs Macdonald, Coutts, Mullard and Gibson together with Dr
Sheldrake,1430 a “list” of companies proposed to be invited to express interest
in the proposed EOI process was discussed.1431
1390 There is no evidence from the attendees of that meeting that it was the 2 July
2008 list which was produced at that meeting,1432 or that that list was under
discussion at the meeting. However, Mr Mullard’s evidence in cross-
examination with leave,1433 taken together with his evidence in chief that he
provided the 2 July 2008 list to the Minister’s office,1434 Mr Gibson’s evidence
that he provided that list to Mr Macdonald,1435 and Mr Mullard’s further
evidence that the list of companies which was produced at that meeting was
discussed among the attendees, allows me to find as a fact that Mr Macdonald
saw the 2 July 2008 list and discussed its contents with those in attendance at
the meeting.
Opportunity for Mr Macdonald to provide the 2 July 2008 list or the information
on it to the Obeids
1391 On 7 July 2008, Moses Obeid contacted (or attempted to contact) Mr
Macdonald by telephone on three occasions: the first call, to Mr Macdonald’s
mobile phone, at 11:42am, was 7 seconds; the second call, to Mr Macdonald’s
1429
T 2490.
1430
Exhibit A p 1093.
1431
T 716.
1432
Dr Sheldrake took handwritten notes of that meeting. His notes include the words “get list together” under
the heading “action” (Exhibit A p 1099). He did not recall what was discussed at the meeting or what his notes
referred to.
1433
T 836-838.
1434
T 835.
1435
T 2490.
5KIPGFD[#WUV.++
mobile phone at 2:19pm, was for 6 seconds; the third call, to Mr Macdonald’s
office at 2:30pm, was for 1 minute and 13 seconds.1436
1392 More significantly, on 8 July 2008, the day after the second Wentworth Hotel
meeting, a meeting with Moses Obeid at Sydney Hospital Cafe was scheduled
in Mr Macdonald’s electronic diary for 12:30-1pm.1437 That meeting, as
scheduled, was preceded by three telephone calls Moses Obeid made to Mr
Macdonald between 8:04am and 10:38am. The first call was to Mr
Macdonald’s mobile phone and the second and third calls were to Mr
Macdonald’s office. The first call was for 2 minutes and 30 seconds; the
second call for 31 seconds; and the third call for 1 minute and 51 seconds. 1438
Moses Obeid also placed a call to Edward Obeid’s mobile at 12:03pm. That
call extended over 17 seconds. Moses Obeid placed a further call to Edward
Obeid’s mobile at 2:24pm for 1 minute and 36 seconds.1439
1393 The Crown submitted it is open for me to find that it was at the Sydney Hospital
Cafe, as scheduled in Mr Macdonald’s diary (a meeting preceded by three
telephone calls), that Mr Macdonald provided Moses Obeid with the 2 July
2008 list, or information as to the identity of the companies on that list, from
which Moses Obeid compiled a handwritten list which he provided to Mr Brook
the following day.1440
1394 That submission gathers force in the context of other facts which I am satisfied
are established by the evidence. They include the following:
(1) By 16 June 2008,1441 well in advance of 8 July 2008, the Mount Penny
Coal Release Area had been designated by the DPI as “Area 7” for
inclusion in the proposed EOI process for the release of small to
medium coal resources with a view to attracting small to medium coal
mining companies into the industry. The structure and content of the
EOI process and its projected release date had been the subject of
discussion with Mr Macdonald between 16 June and 8 July 2008.
(2) The larger map produced by Paul Obeid at the second Wentworth Hotel
meeting on 7 July 2008 and discussed with Mr Brook with the active
participation of Moses Obeid was Wiles Map 2. For the reasons already
1436
Exhibit U pp 40-41.
1437
Exhibit A p 1109.
1438
Exhibit U p 41.
1439
Exhibit U p 41.
1440
MFI 181 p 95.
1441
T2265.
5KIPGFD[#WUV.++
given, I am satisfied Mr Macdonald provided Wiles Map 2 or caused it to

be provided in breach of his duties of confidentiality and/or impartiality.
(3) Mr Rumore had been retained to act for Moses Obeid and his brothers
Paul Obeid and Gerard Obeid on 23 June 2008. The instructions he
was given at that time and in the weeks that followed before Monaro
Mining NL was introduced to him via Mr Brook as a contracting party on
30 July 2008, supports the fact that after the second Wentworth Hotel
meeting, Moses Obeid and his brothers continued to actively pursue a
deal with a mining company for the potential exploitation of what they
understood to be a substantial coal resource underlying Cherrydale
Park and the neighbouring properties of Donola and Coggan Creek,
with a view to entering into a joint venture with that company.
(4) By 30 June 2008, Moses Obeid instructed Mr Rumore that it was
intended that the Tianda Group would replace the Boyds, a company Mr
Rumore’s conference notes record that Moses Obeid described as
“associated with one of [the] ultimate bidders for coal
development/lease of mining tenement”.1442 Mr Fang attended client
conferences with Moses Obeid, Gerard Obeid and Paul Obeid and Mr
Rumore on 30 June 20081443 and 2 July 2008 at which the terms of a
potential joint venture were discussed.1444 The 2 July 2008 list included
Tianda Resources P/L at Mr Macdonald’s request. Although by 18 July
2008 Mr Rumore was instructed that the “deal” contemplated with
“Tianda” was “off”,1445 that does not undermine my finding that Mr
Macdonald introduced Mr Fang and Moses Obeid, most likely during
June 2008, and, having facilitated that introduction, he directed that
Tianda Resources P/L be included on the list of companies proposed to
be invited to participate in the upcoming EOI process.
The handwritten list
1395 Mr Brook gave evidence that on 9 July 2008, either in a coffee shop in
Darlinghurst1446 or later at a hotel in Kings Cross,1447 Moses Obeid “handed”1448
him a handwritten list of 15 mining companies, on the Crown case a subset of
the 2 July 2008 list provided to Mr Macdonald and discussed at the 7 July 2008
meeting.1449 The handwritten list is formatted as follows:
* ENHANCE PLACE PTY LTD

* FELIX RESOURCES
* KIMBA RESOURCES
1442
Exhibit Q p 1039.
1443
Exhibit Q p 1045.
1444
Exhibit Q p 1055.
1445
Exhibit Q p 1143.
1446
T2852.
1447
T3144.
1448
T2852.
1449
T3685.
5KIPGFD[#WUV.++
* SHIELD ENERGY LTD

* MONARO MINING, NL
* BLOOMFIELD COLLIERIES
* CENTENNIAL COAL
* WALLERAWANG COLLIERIES
* BOULDER COAL
* CLARENCE COLLIERY P/L
* LITHGOW COAL COMPANY
* COALPAC PTY LTD
* GENDERS MINING (OAKBRIDGE)
* TIANDA RESOURCES
* DONALDSON COAL P/L1450
Was the handwritten list in Moses Obeid’s writing?
1396 Putting to one side the provenance of the information on the handwritten list,
the question which immediately presents is whether I am satisfied the
handwritten list was in Moses Obeid’s handwriting.
1397 Ms McKerrell, a handwriting expert, undertook a forensic document and

handwriting examination at the request of ICAC and prepared a report dated 30
January 2013.1451 Mr Fox provided Ms McKerrell with two “questioned
documents”. The first questioned document, Q1, was referred to in Ms
McKerrell’s report as “the list”. The second questioned document, Q2, was
referred to as the “memorandum of understanding”. Q1 is the scanned
handwritten list which Mr Brook emailed to himself on 10 July 2008.
1398 At the outset of her analysis, Ms McKerrell was provided with various specimen
handwritten documents she compared to the handwriting on Q1 and Q2. Due
to what she regarded as deficiencies in the specimen documents which were
initially made available to her, she requested additional specimen documents
from ICAC. She confirmed that for the purposes of her ultimate opinion the only
specimen documents used for comparative purposes are the documents S1 to
S5 in Annexure B of her report, each is a confirmed example of Moses Obeid’s
handwriting.
1450
Exhibit A p 1113.
1451
Exhibit AB.
5KIPGFD[#WUV.++
1399 Ms McKerrell explained that her analysis began by examining S1 through to

S5. She proceeded on the assumption that, in respect of each specimen
document, a single writer completed the entire document. She examined the
reproduced specimen documents macroscopically and the original specimen
documents both macroscopically and microscopically. She concluded that
there was “no evidence of multiple writers within that specimen base”.1452 She
then undertook comparative examinations of the handwriting in the questioned
documents and the handwriting in the specimen documents, including “the
direction and the number of the pen strokes, the shape of the letters, the
relative placement, size and height relationships, the spacing, the slant,
apparent fluency, pen pressure and its variation”.1453
1400 In an email to Mr Fox dated 27 November 2012, Ms McKerrell offered the

preliminary view that it was “probable that the questioned handwriting on [the
handwritten list] was written in original form by the writer of the Moses Obeid
specimen [documents]”.1454
1401 In re-examination, Ms McKerrell explained that the conclusion reached in her

report, that it was “highly probable” (emphasis added) that the handwriting on
the list was Moses Obeid’s, was on the basis of a more detailed analysis 1455 as
follows:
Q. Can you help me understand how you went from one level of satisfaction to
an elevated level of satisfaction?
A. So considerable more comparative examinations were done. So the more
detailed examinations looked at the direction of the pen strokes in the
specimens, how they were formed, the shapes of them and then going through
and comparing every single letter in the questioned handwriting to the
question - to the specimen handwriting and determining whether or not the
similarities fell within the range of variation of the specimens and whether any
differences observed were significant differences or whether they could be just
falling outside of the range of variation that was observed within the specimen
base.
Q. But you were still examining the documents macroscopically, because it
was a copy, and you were still appointing your analysis to the pictorial form of
the letters in each of the documents - the specimen documents plural and the
questioned document singular?
1452
T 3457.
1453
T 3459.
1454
T 3466-3467.
1455
T 3470.
5KIPGFD[#WUV.++
A. Yes, the comparison was on the pictorial features. I did examine the
specimens microscopically to determine what the structure of the letters was.
Q. Yes?
A. And then the comparison with the questioned was based on the pictorial
features of the questioned and the specimen.1456
1402 In cross-examination by Mr Neil, Ms McKerrell rejected the proposition that she
was influenced by unconscious bias because she understood that Mr Fox had
asked her to “determine whether or not [Moses] Obeid wrote the [questioned]
document”, because Moses Obeid was named in the instruction letter and
because the name “Moses Obeid” appeared in the handwritten text of the
specimen documents.1457
1403 Ultimately, Ms McKerrell confirmed in her evidence that she remained of the
opinion that it was “highly unlikely” that the handwriting on the handwritten list
was that of a person other than Moses Obeid.1458
1404 Having considered the evidence of Ms McKerrell, and taking into account and
accepting Mr Brook’s evidence that he was given the list by Moses Obeid, I am
satisfied that Moses Obeid is the author of the handwritten list.1459 That
question leaves open the related and critical question whether I am satisfied
that Mr Macdonald provided the 2 July 2008 list or the information on it to
Moses Obeid from which he created the handwritten list and, if he did, whether
he breached either or both of his duties of impartiality or confidentiality in doing
so.
What is the significance, if any, of the variations between the 2 July list and the
handwritten list as concerns the provenance of the handwritten list?
1405 The 15 companies on the handwritten list replicated the companies in the first
and second categories of the 2 July 2008 list. Enhance Place Pty Ltd, which
was listed in each of the first and second categories of 2 July 2008 list, was
only listed once in the handwritten list. The handwritten list also included
Tianda Resources P/L which one of the companies in the third category in the
2 July 2008 list at Mr Macdonald’s direction. It also included two companies,
1456
T 3471.
1457
T 3466.
1458
T 3469.
1459
Exhibit AB.
5KIPGFD[#WUV.++
Felix Resources and Donaldson Coal P/L, neither of which were included on
the 2 July 2008 list or the earlier drafts of that list.
1406 Donaldson Coal and Felix Resources were the subject of limited evidence in
the trial.
1407 Donaldson Coal was identified by Mr Coutts as a smaller but successful mining
company.1460 Mr Coutts also gave evidence that Felix Resources started out as
a small mining company1461 and grew into a “medium to large company”.1462 In
December 2007, Felix Resources was granted two mining leases in respect of
the Moolarben coal mine project.1463
1408 Mr De Ross, General Manager of Tianda Resources P/L, gave evidence that
Mr Macdonald facilitated an introduction between Tianda Resources P/L and
Felix Resources P/L. Those companies discussed the possibility of a “joint
venture” on the Watermark EOI process in 2007.1464 Tony Hewson, Mr
Macdonald’s former Chief of Staff, was also a consultant to Tianda Resources
P/L and Felix Resources P/L in 2008.1465
1409 There is no evidence as to why “Felix Resources” and “Donaldson Coal” were
included by Moses Obeid in the handwritten list when neither was included in
the 2 July 2008 list and where there is no evidence as to why the remaining
companies on the 2 July 2008 list were not included in the handwritten list.
The form and content of the various lists of companies in evidence
1410 The first three draft lists1466 of companies prepared by the DPI set out at par
1376 and following above bear stylistic and formatting consistencies both with
each other and with the handwritten list.1467
1411 The first three DPI draft lists and the handwritten list are each presented in
bullet point form in a single column. All four documents commence with a bullet
point which reads “Enhance Place Pty Ltd”. In the first three DPI documents,
1460
T 396.
1461
T 377.
1462
T 390.
1463
Exhibit W p 28.
1464
T 1348; Exhibit G.
1465
T 1360-1361.
1466
Exhibit A pp 969, 973, 1053.
1467
Exhibit A p 1113.
5KIPGFD[#WUV.++
the second bullet point reads “White Mining”. In the handwritten list, the second
bullet point reads “Felix Resources”. At all relevant times during the currency of
the alleged conspiracy, White Mining Ltd was a member of the Felix Resources
group.1468
1412 The third bullet point in each of the first three DPI drafts and in the handwritten
list reads “Kimba Resources”, followed by “Shield Energy Ltd”, “Monaro Mining
NL” and, in sixth place, in the first three DPI drafts by “Bloomfield Collieries Pty
Ltd” and in the handwritten list by “Bloomfield Collieries PL”. The next bullet
point in the first DPI draft, “Xstrata”, is omitted from the subsequent DPI drafts
and the handwritten list, consistent with the manner in which the list was
progressively refined by the DPI.
1413 The next bullet point in each of the four documents reads “Centennial Coal”,
followed by “Wallerawang Collieries”. The first DPI draft then lists “Anglo Coal”,
which was omitted from the subsequent DPI drafts and the handwritten list,
again consistent with the manner in which the list of companies was refined by
the DPI.
1414 The next bullet point listed in the three DPI drafts and the handwritten list reads
“Boulder Coal”, followed by “Clarence Colliery Pty Ltd” in the three DPI drafts
and “Clarence Colliery P/L” in the handwritten list, followed by “Lithgow Coal
Company”, then “Coalpac Pty Ltd”. The next company listed in the three DPI
drafts, “Enhance Place Pty Ltd”, is not repeated in the handwritten list, it being
the first company already included on that list. The three DPI drafts and the
handwritten list then list “Genders Mining (Oakbridge)”.
1415 At this point, the content of the handwritten list departs from the format and
content of the three DPI drafts. The next bullet point in the handwritten list
reads “Tianda Resources”, followed by the last bullet point on that list which
reads “Donaldson Coal P/L”.
1416 The handwritten list does not include the subheadings from each of the initial
three DPI drafts, namely “Companies which have registered an interest in a
coal allocation in the Western Coalfield” and “Coal Companies with current
1468
Exhibit G p 5.
5KIPGFD[#WUV.++
titles in the Western Coalfields”,1469 nor does it include the third subheading
from the 2 July 2008 list, namely “Other small companies which have
expressed [an] interest in elsewhere in the State”.1470
1417 The next several lists of companies prepared by the DPI (the list emailed to Mr
Mullard by Ms Moloney on 18 July 2008,1471 the lists emailed between Ms
Moloney, Mr Mullard, Ms Madden and Mr Munnings on 23 July1472 and the
Ministerial Briefing dated 23 July 2008 1473) were formatted in substantively the
same way as the preceding draft lists.
1418 The final list of companies prepared by the DPI appears as part of the Director-
General Briefing dated 9 September 2008 in a page headed “Potential Listing
of Companies to be Invited to Submit an Expression of Interest in the Small
and Medium Coal Allocation Areas”.1474 In that list, 38 companies are again
listed in a single column in bullet point form, albeit listed in alphabetical order
without the subheadings used in the previous iterations of the list.
1419 Where the form and content of the handwritten list of companies closely mirrors
the form and content of each of the draft lists, and where the inconsistencies
between the 2 July 2008 list and the handwritten list are, in my view, capable of
being explained by the relationship between Felix Resources and White Mining
and by the evolving nature of the list as Mr Macdonald’s requests were
factored into the proposed list of invitee companies, there is a compelling
inference that the information contained in the handwritten list was compiled by
Moses Obeid with reference to the 2 July 2008 list or the information on it,
likely with some input from Mr Macdonald. Since the first list on which Tianda
Resources P/L appears is the 2 July 2008 list, and Tianda Resources P/L then
appears on the handwritten list of companies, that provides a further basis for
finding that it was compiled with reference to the 2 July 2008 list, as opposed to
the two earlier iterations of the list produced by Ms Moloney on 19 June 2008.
1469
1470
Exhibit A p 1053.
1471
Exhibit A p 1141.
1472
Exhibit A pp 1196-7, 1201, 1205, 1209, 1219, 1221-1222.
1473
Exhibit A p 1248.
1474
Exhibit A p 1966.
5KIPGFD[#WUV.++

1420 Mr Martin submitted that the evidence did not allow for a finding that Mr
Macdonald either directly or indirectly provided Moses Obeid with the 2 July
2008 list as a document, there being no evidence that Moses Obeid was in
possession of the document at any relevant time.1475 Mr Martin also submitted
that even were I satisfied that Mr Macdonald provided the 2 July 2008 list to
Moses Obeid because I was satisfied the handwritten list was prepared
referable to it, the Crown has not established that the handwritten list Mr Brook
emailed to himself (or the information on it), was confidential in the relevant
sense. Mr Martin submitted that the information contained in the handwritten
list, namely the identity, by name, of some small to medium coal mining
companies in New South Wales, was not confidential, given the discrepancies
between the various draft lists and that the Crown only nominates the 2 July
2008 list as the version Mr Macdonald provided Moses Obeid in breach of his
Ministerial duties of confidentiality and impartiality.
1421 Mr Martin further submitted that Mr Macdonald was, in any event, entitled to
release information pursuant to s 365 of the Mining Act and that there was a
reasonable possibility the list related to Authorisation 287 and Authorisation
342 held by Anglo Coal P/L which was due to expire in July 2008 and “the very
real prospect that they may go to an expression of interest or other tender”.1476
1422 I have already dealt with the construction and operation of s 365 of the Mining
Act contended for by Mr Martin and Mr Neil when dealing with what is
comprehended by the duty of confidentiality in the Ministerial Code of
Conduct.1477 Insofar as Mr Martin suggested the list of companies was in some
way relevantly connected with Anglo Coal P/L’s Authorisations, or might have
been, there is no evidence in the trial to support that proposition.
1423 Without conceding the Crown had established the seventh act of misconduct,
Mr Neil submitted that no inferences can be drawn adverse to Moses Obeid
from his preparation of the handwritten list from any list Mr Macdonald made
available to him or any information Mr Macdonald had provided in some other
1475
MFI 190 par 221.
1476
T 3771.
1477
See pars 247-258.
5KIPGFD[#WUV.++
form. Mr Neil submitted that providing a list of small or medium companies who
might be interested in mining in New South Wales (what Mr Neil submitted was
a proper characterisation of the 2 July 2008 list) would not be a breach of Mr
Macdonald’s Ministerial duties and obligations of confidentiality and impartiality.
Even providing a list of companies who might be invited to tender in any EOI
process might have been nothing more than “a misguided attempt by the
Minister to promote the EOI process”.1478
1424 Mr Neil also submitted that the 2 July 2008 list “was never considered by [Mr]
Macdonald to be a list of companies to be invited to tender [in the EOI
process]”.1479 He submitted that the discrepancies between the 2 July 2008 list
and the handwritten list allow for the inference that the handwritten list was
prepared for a purpose other than as a list of companies Moses Obeid
understood (from what he was told by Mr Macdonald) were proposed to be
invited to participate in an upcoming EOI process, and that in any case the 2
July 2008 list was a “starting point” rather than a settled list of invitees.1480
1425 I do not accept that submission. As I have also observed, it is not, and could
not be, the Crown case that Mr Macdonald provided Moses Obeid with the
final, settled list of companies invited to participate in the EOI process, since
that list was not finalised until 9 September 2008 when the EOI process was
launched. The Crown case, as particularised, is that Mr Macdonald provided a
particular list, or information on that list, of the companies proposed to be
invited to participate in the EOI process and which was confidential information
since the mining companies, at that point, were being assessed for their
suitability to be invited to participate in the pending but unannounced EOI
process.
1426 The Crown also submitted that each of the draft lists of companies prepared by
the DPI, including relevantly the 2 July 2008 list, was directed to the same
purpose, namely to compile a list of companies proposed to be invited to
participate in the upcoming EOI process.
1478
MFI 192 p 173.
1479
MFI 192 p 167.
1480
MFI 192 p 165.
5KIPGFD[#WUV.++
1427 Mr Neil further submitted that, upon receipt of the 2 July 2008 list or the
information it contained, Moses Obeid did not act in a manner consistent with
having been provided with a “list of tenderers”.1481
1428 Again, that submission misrepresents the Crown case as particularised. The
Crown does not allege that Moses Obeid was provided with a settled list of
invitee companies who might submit an EOI in relation to one or more EL, only
that he was provided with a particular list, or information on that list, of
companies proposed to be invited to participate in the EOI process. It is not
indispensable to proof of the seventh act of misconduct that each of the
companies on the handwritten list, and only those companies, were ultimately
invited to participate; that case was never put by the Crown.
1429 Mr Brook gave evidence he was told by Moses Obeid on 9 July 2008 that “one”
or “some” of the companies on the list were those who “may be invited to
tender for an exploration licence by the Government shortly”.1482 In cross-
examination, Mr Brook conceded that the effect of the words Moses Obeid in
fact said was that “companies on the list might be suitable companies to use to
joint venture with on any tenders that might come up”.1483
1430 Finally, Mr Neil submitted that the 2 July 2008 list was “no more than a list of
small and medium companies in NSW interested in mining.” 1484 In his
submission, Mr Macdonald directed the DPI to create a list of companies to be
invited to participate in the EOI process which was limited only “in the sense
that the people to be invited were small to medium companies”, 1485 not in the
sense that “only some small companies would be invited”.1486 The unstated
conclusion is presumably that an “outsider”, the term repeatedly used in closing
submissions to describe Moses Obeid,1487 could undertake their own research
to compile a list of small to medium coal mining companies operating in New
South Wales.
1481
MFI 192 p 167.
1482
T 2852.
1483
T 3145.
1484
MFI 192 p 69.
1485
T 1046.
1486
MFI 192 p 166.
1487
MFI 192 pp 53, 69.
5KIPGFD[#WUV.++
1431 In my view, it defies rational analysis that were an “outsider” to undertake their
own research for that purpose, that person would be able to create a list so
closely resembling the form and substance handwritten list (which itself closely
resembled the 2 July 2008 list) for the following reasons.
1432 Firstly, notwithstanding Mr Macdonald’s desire that the list of companies invited
to participate in the EOI process be “expansive and inclusive rather than
exclusive”1488 (as submitted on behalf of Moses Obeid), what constitutes a
small to medium coal mining company is plainly not a matter capable of being
objectively determined by an “outsider”, particularly in circumstances where the
EOI process was ultimately reopened to more companies who complained of
having been excluded from the initial EOI process.
1433 Secondly, the 2 July 2008 list was prepared with reference to the confidential
Coal Register. Information as to which companies had registered an EOI in a
coal resource was treated confidentially by the DPI and was not accessible to
the public.
1434 I am well satisfied that the information in the handwritten list could only have
originated from the Coal Register or from one of the draft lists which the DPI
prepared at Mr Macdonald’s request using the Coal Register. I am also
satisfied there is no evidence capable of raising the reasonable possibility that
Moses Obeid compiled a handwritten list of companies directly referencing the
confidential Coal Register.
1435 Thirdly, the 2 July 2008 list included companies such as Monaro Mining NL and
Tianda Resources P/L which did not have an established reputation as coal
mining companies operating in New South Wales and would not be readily
identified by an “outsider” as likely contenders for the EOI process. Mr Brook’s
research into Monaro Mining NL revealed to him that it was “publicly known”
that Monaro Mining NL was “lobbying the DPI and interested in coal” 1489 but
that in terms of that company’s infrastructural capacity to establish a coal mine,
it had been spread “very thin with respect to managing multiple uranium mining
1488
MFI 192 p 166.
1489
T 3149.
5KIPGFD[#WUV.++
projects around the world”.1490 Mr De Ross, General Manager of Tianda

Resources P/L, gave evidence that when he joined the company it had “a
number of mining tenements, principally exploration tenements, mainly for
uranium scattered around Australia” with an additional focus on “iron ore and
coal”.1491 He also gave evidence that the company had no mining “experience
or infrastructure within the organisation to call on to actually create a mining
company”.1492
1436 In any event, a prerequisite to an “outsider” conducting their own research to

compile a list of companies proposed to be invited to participate in the
upcoming EOI process would be that person’s knowledge of the upcoming EOI
process.
1437 I regard Mr Brook’s evidence as consistent with the Crown case as

particularised, that is, that the list of companies from which Moses Obeid
compiled the handwritten list contained potential invitee companies.
Did Mr Macdonald provide the 2 July 2008 list (or the information it contained)
to Moses Obeid?
1438 Having regard to the time at which I am satisfied Moses Obeid supplied the
handwritten list to Mr Brook, namely on 9 July 2008 two days after the second
Wentworth Hotel meeting, and having regard to what occurred at that meeting,
I am comfortably satisfied that it was provided to assist Mr Brook to identify and
approach a mining company which might be a suitable candidate to enter into a
joint venture with the “landholders alliance” in order to secure what Moses
Obeid knew or believed was the potential for an EL at Mount Penny to be
released via a closed tender process encompassing rural land which the Obeid
family owned or were in the process of acquiring or controlling.
1439 The related issue of Moses Obeid’s state of knowledge as to whether the
tender would be open, limited, or closed is also in contest. Mr Brook gave
evidence that at the first Wentworth Hotel meeting, Moses Obeid gave him to
understand that “an open public tender” would be taking place. 1493 Mr Brook
1490
T 2854.
1491
T 1346.
1492
T 1347.
1493
T 3027.
5KIPGFD[#WUV.++
gave further evidence in cross-examination that by the time of his initial

discussions with Mr Grigor (Chairman of Monaro Mining NL) in mid-July, he
had formed the view “based on [his] conversations in the industry and [his]
analyst’s work, that it seemed to be that the term ‘open’ was not correct and…
it was to be a limited tender”.1494
1440 Taken together with Mr Brook’s evidence that Moses Obeid told him that the
handwritten list contained companies which “may be invited to tender for an
exploration licence”,1495 the question whether Moses Obeid represented to Mr
Brook that the tender process would be open or limited is immaterial. In my
view Mr Brook’s actions upon receipt of the handwritten list are the most telling
evidence as to why the handwritten list was compiled and given to him and
what Moses Obeid understood was the nature of the 2 July 2008 list from
which I am satisfied he prepared the handwritten list.
1441 On 10 July 2008, Mr Brook emailed to himself a scan of the handwritten list. 1496
He then said he undertook his own “desktop due diligence” of the 15
companies on the list from which he identified Monaro Mining NL as the most
appropriate candidate to approach.1497
1442 On 15 July 2008, Mr Brook attended upon Mr Rampe, CEO of Monaro Mining
NL, at Monaro Mining NL’s Sydney office (unannounced).1498 He told Mr
Rampe inter alia, that Monaro Mining NL was a company that he understood
might be a potential candidate to be invited to tender for a coal EL. It was the
only company on the handwritten list that Mr Brook approached.
1443 Mr Brook’s evidence of what Moses Obeid told him about the content of the
handwritten list and the representations he made to Mr Rampe on 15 July 2008
are consistent with the Crown case that the handwritten list included 13 of the
companies the DPI proposed to invite to participate in the EOI. Mr Brook’s
evidence, couched in terms of probability, in particular that Monaro Mining NL
was a potential candidate which, according to Moses Obeid, may be invited to
1494
T 3143.
1495
T 2852.
1496
Exhibit A p 1111; T2851-2852.
1497
T 2853-T2854.
1498
5KIPGFD[#WUV.++
tender, reflects the status of the 2 July 2008 list from which the handwritten list
was compiled.
Was the provision of the 2 July 2008 list (or the information on it) in breach of
Mr Macdonald’s duties of confidentiality and/or impartiality and, if so, was that
act of misconduct committed in furtherance of the conspiracy?
1444 The Crown alleged that the seventh alleged act of misconduct constituted a
breach of Mr Macdonald’s Ministerial duties and obligations of impartiality “as
he knew the Obeid family owned property in a location proposed to be included
in the EOI process” and a breach of Mr Macdonald’s Ministerial duties and
obligations of confidentiality because the list of companies contained in the
document titled “Company EOI 2 July 2008” was confidential.1499
1445 Mr Mullard gave evidence that the version of the list included in the Director-
General Briefing of 9 September 2008 included companies “who had spoken to
the Minister or the Minister's office saying they would like to be on the list”.1500
Mr Mullard’s evidence indicates that although the imminent release of the
eleven coal release areas to tender had, by that stage, come to be known,
expected, or anticipated at a general level within the coal mining industry, there
is no evidence capable of establishing the reasonable possibility that the same
level of industry-wide knowledge of the prospective EOI process was known by
the time Mr Brook emailed himself the handwritten list on 10 July 2008.
1446 To the contrary. On 7 July 2008, Ms Hibbs sent an email on Mr Mullard’s behalf
to Mr Bowman, responsive to Mr Bowman’s enquiry on behalf of Monaro
Mining NL about the outcome of its EOI in a coal resource in what Mr Mullard
described as “the Lithgow region, the Western Coalfield”. The email stated the
following:
The department is in the process of undertaking a review of the geology and

coal resource potential of the area. Hence no further action will be taken until
these results are finalised.1501
1447 Mr Mullard gave evidence that the email sent on his behalf did not disclose that
Monaro Mining NL was “under consideration to be invited” to participate in the
upcoming EOI process for eleven small to medium coal release areas in the
1499
MFI 134/1.
1500
T 1075.
1501
Exhibit A p 1103.
5KIPGFD[#WUV.++
Western Coalfield because “it wasn’t public [information] at that time” and “until
a decision had been made, [the DPI] wouldn’t have conveyed that”. 1502
1448 In contrast to Wiles Maps 1 and 2, I am satisfied the 2 July 2008 list was
confidential in the hands of DPI officers and the Minister’s staff because at the
time I am satisfied Mr Macdonald provided the information to Moses Obeid, it
related to a pending EOI process. I am of that view notwithstanding the
possibility that some of the information on that list, as with some of the
information in Wiles Map 1 and Wiles Map 2, could, theoretically, have been
gleaned from publicly available information and resources.
1449 For completeness I also note the following:
(1) Mr Gibson gave evidence he did not provide the 2 July 2008 list to
anyone outside of the Minister’s office because he considered it to be “a
commercially sensitive document and it should be protected as
such”.1503
(2) Ms Moloney gave evidence the 2 July 2008 list contained information
from the Coal Register which she considered to be confidential and that
in the “context” of what the DPI was “working on,” namely a “possible
expression of interest which would have been a competitive release”,
information as to which would have been highly valuable, the list of
companies was “confidential”.1504
(3) Mr Mullard gave evidence the 2 July 2008 list “was part of the working
papers for the EOI and I regarded that as not publicly available”. 1505
(4) Mr Coutts gave evidence the list of companies was confidential up until
the public launch of the EOI process because the very fact the DPI was
considering launching an EOI process was confidential.
1450 As to the confidentiality of the 2 July 2008 list of companies in the hands of the
Minister at the time he provided it (or the information on it) to Moses Obeid, I
am well satisfied at that time and in those circumstances, that information was
confidential. It is clear to my mind beyond question that in the densely
concentrated period of activity between Mr Macdonald’s receipt of the 2 July
2008 list (during the 7 July 2008 meeting) and Moses Obeid’s compilation of a
handwritten copy of a subsection of the companies on that list which he
provided to Mr Brook on 9 July 2008, that, in breach of his obligations under
1502
T 718.
1503
T 2491.
1504
T 2268.
1505
T 716.
5KIPGFD[#WUV.++
Clause 4.2 of the Ministerial Code of Conduct, Mr Macdonald used information

he obtained in the public office he held as Minister to confer a private interest
on Moses Obeid and his family. I am also in no doubt that the information in the
2 July 2008 list of companies conferred a significant benefit on the Obeids as
the owners of Cherrydale Park (a fact of which Mr Macdonald was aware)
when allied with the fact that when he received the information Moses Obeid
was already aware that a coal release area was to be released to tender at
Mount Penny.
1451 Moses Obeid immediately capitalised on the benefit conferred by his receipt of
that information by providing the handwritten list to Mr Brook who then
approached Monaro Mining NL on the Obeids’ behalf, equipped with the
additional bargaining power of “sharing” with Monaro Mining NL knowledge
about the upcoming EOI process and Monaro Mining NL’s status as a potential
invitee, even if as Mr Brook claims, he was not told by Moses Obeid the
information was confidential. The point is I am satisfied Moses Obeid knew the
list of companies was confidential and that it was provided in breach of Mr
Macdonald’s Ministerial duties and obligations. His concealing of the source of
his information from Mr Brook is eloquent of that fact.
1452 Regardless of the confidential status of the 2 July 2008 list, I am also well
satisfied that the provision of that information to Moses Obeid, at a time when
the EOI process had not been publicly announced, was in breach of Mr
Macdonald’s Ministerial duty of impartiality. In circumstances Mr Macdonald
knew of the Obeids’ ownership of Cherrydale Park and that a new coal release
area named Mount Penny had been identified by the DPI at Mount Penny
excised from the eastern portion of the potential open cut resource depicted on
Wiles Map 2, the provision of the list of companies was clearly inconsistent with
Mr Macdonald’s obligation to exercise his office honestly and impartially and in
the public interest. For those reasons, I am also satisfied that Mr Macdonald
committed the seventh act of misconduct in furtherance of the conspiracy, that
is, he would not have committed it were it not for the improper purpose alleged
by the Crown.
5KIPGFD[#WUV.++
Dealings between Mr Brook (including as on behalf of Lehman Brothers), the

Obeid family, and Monaro Mining NL
1453 Following the second Wentworth Hotel meeting on 7 July 2008 and the third
meeting between Moses Obeid and Mr Brook on 9 July 2008 (when, as I have
found as a fact, Moses Obeid provided Mr Brook with the handwritten list of
mining companies) Mr Brook dealt extensively with Moses Obeid, on behalf of
the Obeid family, in pursuit of a deal with a mining company. This was at a time
when there is every indication that negotiations with Tianda Resources P/L had
not progressed and where, with the provision of confidential information from
Mr Macdonald in the form of the list of companies (or the information on that
list), Moses Obeid was in a position, using Mr Brook as an intermediary, to
approach a company (other than Tianda Resources P/L) who he understood
was to be invited to participate in the EOI process for the granting of an EL at
Mount Penny.
1454 I note that Mr Rumore’s continued enquiries of Moses Obeid and his brothers
by emails on 4 July 2008 1506 and on 14 July 20081507 as to the progress of
negotiations with Mr Fang and Tianda Resources P/L went unanswered 1508
until 18 July 2008 when Mr Rumore was instructed in a client conference with
Moses Obeid and Gerard Obeid that the “deal with Tianda is off”, 1509 coincident
with Mr Brook’s approach to Monaro Mining NL and the positive reception he
received first from Mr Rampe, the CEO, and then Mr Grigor, the Chairman.
1455 As will be obvious from the chronological unfolding of Mr Brook’s dealings with
Moses Obeid from 7 July 2008, those dealings extended beyond the collapse
of Lehman Brothers on 15 September 2008 1510 and beyond 31 January 2009,
when on the Crown case, the conspiracy had been fully executed, through to
September 2010 when Mr Brook divested himself of his interest in the joint
venture agreement with Cascade Coal P/L.1511
1506
Exhibit A p 1083.
1507
Exhibit A p 1115.
1508
Save for a file note Mr Rumore made of a phone conference with Gerard Obeid on 4 July 2008. Gerard
Obeid advised him “the deal with Mr Fang had changed yet again” and that the Obeids were going to “use next
week to try and renegotiate the deal… they may in fact take the options [in relation to Coggan Creek] in their
own name at this stage but they [may] look for a six month settlement” (Exhibit A p 1089).
1509
Exhibit Q p 1143.
1510
T 2804.
1511
See pars 1764-1765.
5KIPGFD[#WUV.++
1456 Mr Brook’s evidence as to the various entities on whose behalf he acted at

particular times over that extended period, the capacity in which he acted, and
representations he made to those entities (ostensibly to advance their
interests)1512 necessitates taking a cautionary approach before accepting his
evidence where it is contradicted by other evidence. Where his evidence is
objectively supported by other evidence which I do accept, or inferences that
might be drawn from that evidence, that cautionary approach can be relaxed.
1457 The concerns I have about Mr Brook’s reliability and credibility, 1513 additional to
those already considered in the context of his evidence relating to Wiles Map 2,
will emerge in the course of the narrative of his various dealings with
representatives of Monaro Mining NL which follows and, later, with
representatives of Cascade Coal P/L on behalf of Moses Obeid.
Mr Brook undertakes “desktop due diligence” of the handwritten list of

companies
1458 Having received the handwritten list of companies from Moses Obeid on 9 July
2008, Mr Brook gave evidence that he conducted what he described as
“desktop due diligence” as he “googled” each company on the list and
conducted searches on the Lehman Brothers database.1514 He gave evidence
that he “formed views” about which of the listed companies might be of interest
to Lehman Brothers to approach.1515 Using his self-styled “desktop due
diligence” into Monaro Mining NL’s “business, their exploration activities, their
prior press releases and statements, annual statements, and also their
financial position”,1516 he determined that Monaro Mining NL was “financially
weak” and for that reason they would likely be receptive to “a knock on the
door from a bank like Lehman Brothers who, he would be able to represent,
were “working with a landholders alliance with respect to a forthcoming
Government tender”.1517
1512
T 3152, 3164, 3171-3173.
1513
See pars 1318-1331 where I deal with the reliability of his evidence in relation to the production of Wiles
Map 2 at the first Wentworth Hotel meeting.
1514
T 2853.
1515
T 2853.
1516
T 2854.
1517
T 2854.
5KIPGFD[#WUV.++
Mr Brook approaches Monaro Mining NL

1459 Having identified Monaro Mining NL as the most viable candidate, Mr Brook
telephoned Monaro Mining NL’s office to arrange an appointment. On 15 July
2008 he met with Mr Mart Rampe, CEO of Monaro Mining NL, at their Sydney
office.1518
1460 Mr Brook gave evidence (largely confirmed by Mr Rampe) that he told Mr

Rampe that Lehman Brothers had been approached by a landholders alliance,
who believed that there was coal beneath their properties. He said he told Mr
Rampe that the landowners had learnt that there was “a Government tender
coming up for the application for exploration licences” and that Monaro Mining
NL had “come up” as a “potential candidate to be invited to tender by the
Government”.1519 He said he told Mr Rampe that the “landholders were very
prominent, high profile New South Wales, Sydney business people” and that
they wanted to “remain anonymous”.1520
1461 Mr Brook gave evidence he was under strict instructions from Moses Obeid
that his family’s identity in its involvement in any transaction was to be
completely anonymous at all times.1521 He gave evidence that Moses Obeid
told him his family “are a high profile, wealthy family [and] that his father is a
high profile figure in Australian politics in New South Wales, and they
preferred… to keep a low profile … with respect to their commercial
dealings”.1522
1462 The Crown submitted that Moses Obeid’s insistence on anonymity to Mr Brook,
together with the fact that his family was not named in the agreements
prepared by Mr Rumore on his instruction, may, in other circumstances, have
been legitimate. The Crown submitted, however, that I will be satisfied, in the
circumstances of this trial, that the primary reason for Moses Obeid’s
insistence on anonymity was to conceal the fact Mr Macdonald was the source
of information (he knew was confidential information) which had identified
Monaro Mining NL as a potential invitee in a closed tender process for the
1518
T 2853-2854, 3105.
1519
T 2855.
1520
T 2855.
1521
T 2855.
1522
T 2855-2856.
5KIPGFD[#WUV.++
granting of an EL at Mount Penny, and that Mr Macdonald was also the source
of other “inside information” about the designation of the coal release area and
the land it encompassed, including Cherrydale Park. Since I am satisfied that
Moses Obeid sought and received the confidential information in the
handwritten list from Mr Macdonald and that he used that information to pursue
a business relationship with Monaro Mining NL, the Crown’s submission carries
force.
1463 Mr Brook gave further evidence (also confirmed by Mr Rampe) that Mr Rampe
was apparently not surprised to be told that Monaro Mining NL was on “the list
to receive an invitation to apply for an exploration licence” because, according
to Mr Rampe, Monaro Mining NL had been lobbying the DPI for some time for
that very purpose.1523
Monaro Mining NL’s dealings with the DPI in 2007 and 2008
1464 Mr Martin submitted that Monaro Mining NL’s dealings with the DPI in 2007
and 2008, as confirmed in Mr Mullard’s evidence, Ms Moloney’s evidence and
the correspondence between Monaro Mining NL and the DPI tendered in the
trial, raised the reasonable possibility that the DPI was the source of
information about the upcoming release of the Mount Penny area of the Bylong
Valley to tender and that Monaro Mining NL was aware of that fact in that way,
thereby undermining the Crown’s submission that Mr Macdonald’s enquiries of
the DPI in May and June 2008 came from “left field”.1524
1465 In advancing that submission, Mr Martin relied in particular on Mr Bowman’s

evidence. Mr Bowman was engaged by Monaro Mining NL in May 2007 as a
consultant to prepare a report addressing the prospect of Monaro Mining NL
extending its corporate interests into coal exploration.1525
1466 On 19 May 20081526 a meeting was held at the DPI attended by Mr Mullard, Ms
Moloney, Mr Rampe and Mr Bowman at which Monaro Mining NL gave a
1523
T 2856.
1524
MFI 181 p 55.
1525
Exhibit A pp 99-113; T 387-388, 1424-1427.
1526
Exhibit A pp 783-806; T 965, 1427.
5KIPGFD[#WUV.++
presentation1527 in relation to their interest in securing seven remnant areas in

the Western Coalfield near Lithgow based upon Mr Bowman’s report.
1467 It was a matter of dispute at trial whether the evidence established that the
Bylong Valley and/or Mount Penny were discussed at that meeting. The
evidence relevant to that issue can be summarised as follows:
(1) The written text of Monaro Mining NL’s presentation did not mention the
Bylong Valley or Mount Penny.
(2) The report prepared by Mr Bowman summarising the meeting did not
mention the Bylong Valley or Mount Penny.1528
(3) Mr Mullard gave evidence that Monaro Mining NL’s “expressions of
interest” at that time did not “relate to the Bylong Valley” and rejected
the proposition that the conversation at the meeting “drifted on to the
topic of the unallocated area in the Bylong Valley”.1529
(4) Mr Bowman gave evidence that he would be “very surprised” if the
Bylong Valley was discussed given the report he had furnished to
Monaro Mining NL.1530
(5) Mr Rampe accepted that the Bylong Valley was discussed.1531
(6) Ms Moloney accepted that the Bylong Valley was “one of the areas
being tossed around” at the meeting.1532
1468 The Crown submitted I would give no weight to the proposition, accepted by Mr
Rampe and Ms Moloney in cross-examination, that the Bylong Valley was
discussed at the meeting. The Crown submitted that the passage of time since
19 May 2008, coupled with the risk that their evidence was subject to the
suggestion put by the leading questions asked in cross-examination
undermined the weight of that evidence. The Crown submitted the fact that Mr
Mullard had no recollection of the Bylong Valley being mentioned and that
Monaro Mining NL’s seven areas of interest were in the Lithgow area (many
miles from the Bylong Valley) and, further, that in May/June 2008 when the DPI
commenced identifying small/medium areas suitable for release at the request
of Mr Macdonald, the Bylong Valley was not in the DPI’s contemplation
because “it was a large area requiring further exploration” is evidence
1527
1528
Exhibit A p 807.
1529
T 964.
1530
T 1492.
1531
T 1681.
1532
T 2287-2288.
5KIPGFD[#WUV.++
deserving of far greater weight.1533 The Crown placed additional reliance on Mr

Rampe’s letter to Mr Mullard of 2 June 2008 confirming Monaro Mining NL’s
interest in the allocation of ELs for coal in remnant areas in the Western
Coalfield around Lithgow.1534
1469 Mr Martin also relied on a report produced by Mr Rampe’s consulting company

Harvest Scientific Services Pty Ltd (Harvest Scientific Services P/L) for Monaro
Mining NL in November 2008.1535 In Mr Martin’s submission, the Harvest
Scientific Services P/L report revealed that, in April 2008, that is, prior to the
commission of the first and second acts of misconduct, Monaro Mining NL was
commissioning research on environmental impediments to exploration and
mining in the area which came to be designated at the Mount Penny Coal
Release Area.1536 He submitted that those searches were conducted utilising
information provided by the DPI.1537
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”. 1538 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.1539
1533
MFI 181 pp 48-49.
1534
Exhibit 9.
1535
Exhibit 18.
1536
MFI 190 p 29.
1537
MFI 190 p 30.
1538
T 1419.
1539
T 1425.
5KIPGFD[#WUV.++
1471 For that reason, I regard Mr Rampe’s comment to Mr Brook in July 2008 that
he was not surprised to learn that Monaro Mining NL was on “the list”1540 to
mean a notional list he understood was prepared or maintained by the DPI, 1541
it being no part of the Crown case that he was shown any DPI list which
included Monaro Mining NL or that he was shown the handwritten list of
companies Moses Obeid provided to Mr Brook.1542
Mr Brook’s further dealings with Monaro Mining NL

1472 On 16 July 2008, the day after Mr Brook’s initial meeting with Mr Rampe, Mr
Brook met with Mr Grigor in his capacity as the Chairman of Monaro Mining
NL. Mr Grigor gave evidence that he arranged the meeting “as soon as
possible” after Mr Rampe informed him of Mr Brook’s approach. 1543 The
meeting was convened at Lehman Brothers’ Sydney office.
1473 Mr Brook summarised the meeting with Mr Grigor as follows:
When I first met Mr Grigor, I relayed to him that I had been approached by a
landholders alliance who believed there was coal underneath their land
potentially and there was potentially going to be tenders coming up for
exploration licences and they, through their sources and research, had reason
to believe that Monaro may be approached and, to that extent, the landholders
alliance wanted Lehman Brothers to see if we could support some type of joint
venture with respect to the landholders participating with respect to the
outcome of the bid and at an operational level of a potential mine in the
future.1544
1474 Mr Brook said that Mr Grigor was “genuinely enthusiastic” about the
opportunity to have Lehman Brothers financially support Monaro Mining NL’s
entry to the New South Wales coal market, in circumstances where Mr Grigor
knew the company had no prospect of tendering for a coal EL without almost
100% financial backing. Mr Brook said that during the meeting he reaffirmed
the landholders’ insistence on anonymity.1545
1475 Mr Grigor agreed Mr Brook told him that he represented landowners that
owned rural property that was prospective for coal and they were interested in
“teaming up with a coal… company with the view to that company putting in
1540
T 2856.
1541
Exhibit AN; Exhibit 19.
1542
T 3113-3114.
1543
T 1786.
1544
T 3089.
1545
T 2857.
5KIPGFD[#WUV.++
bids for coal licences”.1546 He also gave evidence of various other

representations Mr Brook made during the meeting, including that he gave Mr
Grigor to understand that he had approached Monaro Mining NL because he
had “been in contact with the Mines Department” and that Mr Brook could
confirm that the DPI saw Monaro Mining NL as a “respectable company to deal
with so, hence, he contacted Monaro Mining”.1547 Mr Grigor also gave evidence
Mr Brook told him that “if Monaro Mining was to bid and be successful in its
application, he was looking at angles to make sure that his client [the
landholders] would participate in the development … of any mine that may
come out of that in the future”.1548
1476 Mr Grigor said that although he had some contact with Mr Brook following the
meeting on 16 July 2008, on his instruction as Chairman, most of the
responsibility for developing the project was left with Mr Rampe.1549 This is in
contrast with Mr Rampe’s evidence that, after initially meeting with Mr Brook he
left Mr Grigor to deal with Mr Brook.
1477 I gained the distinct impression that from time to time, in the course of Mr
Rampe and Mr Grigor giving evidence at the trial, they both sought to downplay
their respective roles in the developing relationship between Mr Brook and the
company and what they knew (or did not know because they did not ask) about
the EOI process which they were given to understand was pending before it
was publicly launched on 9 September 2008, and how Mr Brook’s clients had
come to learn that their land was within a new coal release area which was to
be included as one of the areas for release in that process.
The 18 July 2008 conference with Mr Rumore and the first mention of Mr Brook
and Monaro Mining NL
1478 On 18 July 2008, Mr Rumore was instructed at a conference attended by
Moses Obeid, Gerard Obeid and Paul Obeid, that the “deal with Tianda” was
“off”.1550 Mr Rumore’s handwritten file note of the conference also records Mr
Brook’s contact details and Monaro Mining NL as the mining company Lehman
1546
T 1786.
1547
T 1787.
1548
T 1789.
1549
T 1790.
1550
Exhibit Q p 1143.
5KIPGFD[#WUV.++
Brothers was proposing to support financially in a mining project with the

Obeids.
1479 Mr Rumore’s file note of the 18 July 2008 conference also refers to Lehman
Brothers having been granted an option of 60% in “Monaro Coal” (the wholly
owned subsidiary of Monaro Mining NL in whose name it was proposed the
applications for the grant of an EL would be lodged) which was available to be
exercised on condition that:
(1) Monaro Coal P/L “wins [right] to mine pursuant to [winning the] EOI
[process]”.1551
(2) The three “Obeid” properties were purchased at a multiple of three or
four times the valuation of those properties at the time the option was
exercised.1552
(3) Lehman Brothers “directs” Monaro Coal P/L to “issue 15% shares” to
Lehman Brothers and “45% shares to Obeid”.1553
1480 The source of that information was not the subject of any evidence. I proceed,
however, on the assumption it came from Mr Brook. He was not questioned as
to the basis upon which he replied that “Lehman Brothers had been granted an
option” in Monaro Mining NL’s wholly owned subsidiary when, as other
evidence shows, Mr Brook had not consulted with his superiors at Lehman
Brothers as at 18 July 2008 about that.
1481 Mr Brook was, however, in the process of informing his superiors within
Lehman Brothers about the progress of various discussions he was having with
various parties in New South Wales including, relevantly so far the trial is
concerned, what he described in correspondence as the “second deal” (being a
joint venture with Monaro Mining NL 1554 concerning “90MT of thermal coal… +
adjacent 600MT”).1555
1551
Exhibit A p 1143.
1552
Exhibit Q p 1144.
1553
Exhibit Q p 1144.
1554
Exhibit A p 1151.
1555
See pars 1272-1300 as to the significance of contiguous area in the context of the second Wentworth Hotel
Meeting and Wiles Map 2.
5KIPGFD[#WUV.++
The “false” paper trail is created

1482 On 22 July 2008, a number of emails were exchanged between Mr Brook and
Mr Grigor attaching drafts of a letter ostensibly written by Mr Grigor and
addressed to Mr Brook but amended by Mr Brook.1556
1483 In the first email from Mr Grigor to Mr Brook,1557 Mr Grigor attached a draft
letter addressed to Mr Brook1558 which contained details of a proposal whereby
Lehman Brothers would act “not in its capacity as a corporate advisor, [but] as
an associate”1559 to assist Monaro Mining NL in an upcoming “closed tender”
for “the granting of [ELs]” in which Monaro Mining NL would bid via a wholly-
owned subsidiary.1560 The letter goes on to propose that in the event that the
tender is successful Lehman Brothers would secure equity by obtaining shares
in the subsidiary.
1484 By return email,1561 Mr Brook attached an amended version of that letter.1562

The letter reads, in part, that “Monaro is seeking the support of Lehman
Brothers to tender for certain thermal and coking coal tenements, which are
expected to be promoted via a closed tender within the next 30 days”. Mr
Brook gave evidence that he included that information in the amended letter
having been provided the information from Moses Obeid.1563
1485 The amended letter went on to seek Lehman Brothers’ participation as a

principal with Monaro Mining NL in the tender process in exchange for which it
would be issued an option “for 60% of the issued shares in the bid company
Special Purpose Vehicle… exercisable upon a bid being successful”.1564 That
proposal is broadly consistent with Mr Rumore’s instructions in the 18 July
2008 conference with Moses Obeid and Gerard Obeid where he was informed
that Lehman Brothers would be granted an option in respect of “60%” of
1556
As set out at par 1132 and foll owing, this correspondence contained information as to the timeframe for
the Mount Penny EOI process the subject of the sixth act of misconduct.
1557
Exhibit A p 1167.
1558
Exhibit A p 1169.
1559
Mr Grigor gave evidence that this was to address what he saw as a “confli ct of interest” arising from Mr
Brook’s relationship with the Landowners. See T 1899.
1560
Exhibit A p 1169.
1561
Exhibit A p 1171.
1562
Exhibit A p 1173.
1563
T 1791. As to which see my consideration of the sixth act of misconduct at par 1132 and following.
1564
Exhibit A p 1173.
5KIPGFD[#WUV.++
“Monaro Coal” (a wholly owned subsidiary of Monaro Mining NL) which was
only exercisable once Monaro Coal P/L were granted the right to mine
pursuant to the EOI process.1565
1486 The final version of the amended letter included minor amendments to the
previous drafts and concluded by making clear that no assistance of any kind
would be provided by Lehman Brothers until the proposed Share Option Deed
proposed was finalised.1566
1487 Mr Grigor confirmed that Monaro Mining NL instructed solicitors from Clayton
Utz (namely, Felicity Cuthbertson and Barry Irwin) to draft a Share Option
Deed. Mr Grigor agreed that Monaro Mining NL sought this advice because Mr
Brook had indicated that Lehman Brothers’ financial support was conditional on
an executed Share Option Deed.
1488 Mr Brook rejected the proposition that he created a “false paper trail” by his
“authoring” of the 22 July 2008 letter in order to misrepresent the provenance
of the proposed transaction with Monaro Mining NL to his superiors at Lehman
Brothers,1567 by claiming that Monaro Mining NL had approached Mr Brook
rather than the other way around. Mr Brook was also questioned on the
apparent contradiction between his actual role as the instigator of the proposed
arrangements and the representation in the amended letter that Monaro Mining
NL’s proposal was as follows:
In return for Lehman Brothers participation with MRO through the tender
process, we propose that Lehman Brothers would be issued an option for 60%
of the issued shares in the bid company Special Purpose Vehicle (SPV). The
option would be issued to Lehman Brothers for $1 and would only be
exercisable upon a bid being successful. Lehman Brothers would have the
right to transfer all or part of its option or shares post conversion.
The option could also be exercisable over a direct equity in the licence as
opposed to shares in the subsidiary company, at your election.
At all times, including once a bid is won, Lehman Brothers would maintain the
right of first refusal to provide or arrange capital for the purpose of developing
a mine asset. Lehman Brothers will be under no obligation to provide any
capital or advice at any time.1568
1565
Exhibit Q p 1143.
1566
Exhibit A p 1179.
1567
T 3148.
1568
Exhibit A p 1179.
5KIPGFD[#WUV.++
1489 He gave evidence that he made the amendments to the letter drafted by Mr
Grigor because it was his view that “it would be best if we had a paper trail that
showed that the origination of this conversation came from them to us, instead
of us soliciting a conversation with them, given that the landholders were not
actually clients of Lehman Brothers at that stage”.1569
1490 Mr Brook went on to say:
The Obeids wanted their involvement to be confidential. It made more sense

that a junior miner, which was publicly known to be lobbying the DPI and
interested in coal and migrating from uranium exploration to coal exploration,
would initiate a conversation with an international investment bank, so for the
purposes of window dressing, more or less, because this was not material to
the outcome, or any outcome potentially anyway, this just made more sense to
me, in my experience, and it was something that people within the firm were
complicit with. And it had no bearing on the integrity of the approach, who
knocked on whose door first, sir.1570
1491 Despite Mr Brook’s evidence to the contrary, I am satisfied that he deliberately
misled Lehman Brothers as to the circumstances in which he promoted Monaro
Mining NL as a mining company who were seeking financial backing from
Lehman Brothers, in what Lehman Brothers was told was Monaro Mining NL’s
application to the New South Wales government for the grant of a coal EL. The
fact that this was done with Mr Grigor’s complicity does not minimise the
impact of the letter on Mr Brook’s credibility.
1492 In my view, none of the explanations Mr Brook gave for asking Mr Grigor to
endorse that false representation were credible. On the other hand, his real
motivation in falsely representing the circumstances of Monaro Mining NL
seeking the financial backing of Lehman Brothers is opaque, to say the least. It
might be thought he was concerned to conceal from his employers that he had
been approached by some anonymous “landowners” who had given him “the
insight” to approach Monaro Mining NL in advance of the public launch of the
closed tender process for the grant of a coal EL at Mount Penny, lest he be
pressed to explain the actual circumstance in which that approach was made. I
regard Mr Brook’s somewhat disingenuous evidence that Moses Obeid “gave”
him the handwritten list of companies to “research” to see who might fit
1569
T 2865.
1570
T 3149.
5KIPGFD[#WUV.++
Lehman Brothers’ profile to approach,1571 his use of “desktop due diligence” to

identify Monaro Mining NL as the only suitable candidate as highly
questionable. However, it was no part of the Crown case that Mr Brook knew
either the provenance of the list or that the “inside” information came from a
government Minister. It is also possible that Mr Brook was motivated to conceal
from Lehman Brothers that he had formed a relationship with “the landowners”,
or Moses Obeid for other reasons, including a private financial motive in
keeping his employers “in the dark” about the closeness of that developing
relationship.
1493 For reasons likely inherent in electing to prosecute the three accused for the
conspiracy and without framing the indictment as including “divers others”, the
Crown did not seek to make the case that Mr Brook was in a conspiratorial
relationship with Moses Obeid, at least not a co-conspirator in the conspiracy it
elected to prosecute. The accused, for obvious reasons, did not explore that
question. Nor did they seek a direction in respect of Mr Brook under s 165(1)(d)
of the Evidence Act.
1494 Neither did the Crown seek to make the case that any member of the Board of
Monaro Mining NL or its CEO, Mr Rampe, were criminally complicit, either in
the conspiracy charged or in some other criminal enterprise as might be
suggested by the uncritical alacrity with which they accepted Mr Brook’s
unsolicited overtures that Monaro Mining NL, a company with no established
reputation as a coal mining company and no capital base to support an
enterprise of that kind, might consider making an application for an EL before
the EOI process for the grant of that EL was publicly announced, and to
engage in detailed contractual negotiations with an alliance of unnamed
landowners for a joint venture before that date.
1495 I note in that connection that there is no evidence that Mr Brook, Mr Grigor or
Mr Rampe knew any of the accused as at 9 May 2008, the date by which I am
satisfied the conspiratorial agreement was forged.
1496 Despite some misgivings that I held in the trial as to the full extent of Mr Rampe
and Mr Grigor’s relationship with Mr Brook, where neither the Crown nor the
1571
T 2853.
5KIPGFD[#WUV.++
accused sought to agitate what might have been their actual state of their
knowledge about the circumstances in which Mr Brook approached Monaro
Mining NL and the reason for their ready and uncritical engagement with him
on behalf of unnamed “landowners” thereafter, that issue went unaddressed.
1497 In the result, an enquiry I might have undertaken into the full complex of Mr
Brook’s motivations in his dealings with both Moses Obeid and Mr Rampe and
Mr Grigor over the course of many months from mid-2008, and what Mr Brook
actually knew about the source of the information Moses Obeid was
progressively providing him with from early July 2008, became an arcane
exercise. I am able to find as a fact, however, that Mr Brook was driven at all
times to extract from his dealings with Moses Obeid, Monaro Mining NL and
later Cascade Coal P/L the best possible financial outcome for himself. The
potential for these motivations to impact adversely on his credibility will be
discussed later in my deliberations to verdict.1572
23 July 2008: The initial Brook-Rumore-Obeid meeting and Lehman Brothers’

rejection of Mr Brook’s proposal
1498 On 23 July 2008, Mr Brook attended a meeting with Mr Rumore, Moses Obeid,
Gerard Obeid and Paul Obeid followed by a teleconference with Mr Pryor and
Mr Wong. These events are outlined below.
1499 Relevantly for present purposes, at that conference Mr Rumore was given
instructions about a proposed arrangement involving Lehman Brothers, by this
time reflected in the letter of 22 July 2008 that Mr Grigor had ostensibly drafted
for Lehman Brothers’ consideration.1573 That letter was apparently tabled at the
conference.
1500 Mr Rumore was also advised that Clayton Utz had been retained to act for
Monaro Mining NL.1574 He was instructed to vet the Share Option Deed
proposed in the letter between Monaro Mining NL and Lehman Brothers to
ensure the Obeids’ interests as landowners were protected. Mr Rumore’s file
note reads:
1572
1573
1574
At 9pm on 23 July 2008, Mr Irwin, solicitor at Clayton Utz, confirmed instructions to act for Monaro Mining
NL in an email sent to Mr Grigor as Chairma n (Exhibit A p 1295).
5KIPGFD[#WUV.++
Finalise Monaro option by 29/7/08 (as date for opening of Govt’s E.O.I
campaign).1575
That entry is relied upon by the Crown as evidence in proof of the sixth act of
misconduct with which I have already dealt.
1501 I also note at this point that whatever urgency attached to the preparation of
the Share Option Deed as at 23 July 2008, if indeed there was any urgency to
it at all at that time, must have been relaxed because it was ultimately not
finalised for another month. However, and in circumstances where I am not
satisfied the sixth act of misconduct is proved, I am of the view that the
essence of Mr Rumore’s instructions was that the Deed was to be finalised
prior to the public announcement of the EOI process. That is consistent with
the information in Mr Grigor’s letter on 22 July 2008, which stated that that
Monaro Mining NL proposed “to draft the necessary Option Agreements as
soon as possible in anticipation of tenders opening”,1576 that is, prior to the EOI
process commencing. As it happened, the Share Option Deed was finalised
prior to the public announcement of the EOI process on 9 September 2008 by
a period of almost three weeks.
1502 Mr Rumore’s file note of the 23 July 2008 conference also recorded the
following:
[Lehman Brothers are] likely to accept Monaro’s offer tomorrow; will then send
me copies + get preparation of option started.1577
1503 Of significance so far as the unfolding structure of the mining project is
concerned (a project which I am satisfied was initiated when Mr Brook made
the unsolicited approach to Monaro Mining NL), is the creation of a special
purpose vehicle which it was proposed would be used as the contracting entity
with Monaro Mining NL. That Special Purpose Vehicle was Voope P/L.
1504 Mr Rumore also prepared detailed conference notes headed “Notes re

arrangement with respect to Monaro Coal (Aust) and three properties at Bylong
Valley”. The conference notes make it clear, in respect of the proposed Share
Option Deed between Monaro Mining NL and Lehman Brothers, that Monaro
1575
Exhibit Q p 1252.
1576
Exhibit A p 1179.
1577
Exhibit Q p 1252.
5KIPGFD[#WUV.++
Coal P/L was the wholly owned subsidiary which would bid for the Mount
Penny EL.1578
1505 The conference notes also record the terms upon which it was contemplated,
at that date, that the option for 60% of the shares in Monaro Coal P/L was
exercisable as following:
(1) Once Monaro Coal P/L wins the right to mine on, inter alia, the three
Bylong Valley properties (Cherrydale Park, Donola and Coggan Creek).
(2) Once there is an agreement to purchase those properties at a multiple
of the valuation at the time the mining lease is granted to Monaro Coal
P/L.
(3) When the option is exercised Lehman Brothers direct Monaro Mining NL
to issue 15% of the shares in Monaro Coal P/L to Lehman Brothers or
its nominee and 45% of the shares to the SPV.1579
1506 The conference notes also record that the agreement between Lehman
Brothers and the “landholders” provided that if Monaro Mining NL were granted
the right to mine over the three Bylong Valley properties, Lehman Brothers or
its nominee would acquire those properties at the agreed consideration. 1580
1507 The Crown relied upon a number of telephone calls passing between Moses
Obeid and Mr Brook and between Moses Obeid and Mr Macdonald on 23 July
2008.1581 The calls between Moses Obeid and Mr Brook appear to have been
in advance of meeting with Mr Rumore and do not seemingly advance proof of
the Crown case. On the other hand, the calls between Moses Obeid and Mr
Macdonald, one of which was at 10:43am for a duration of 2 minutes and 22
seconds, and between Moses Obeid and his father, one of which was at
4:52pm for 5 minutes, and later that evening a 14 minute call followed by an 11
minute call between Edward Obeid and Mr Macdonald (initiated by Edward
Obeid) are relied upon as evidence of an opportunity for the accused to update
each other as to the outcome of the conference with Mr Rumore that day
and/or to discuss his ongoing advice after Lehman Brothers was introduced as
the entity to finance Monaro Mining NL’s bid.
1578
Exhibit A p 1261.
1579
Exhibit A p 1261.
1580
Exhibit A p 1261.
1581
Exhibit U.
5KIPGFD[#WUV.++
1508 Over the next month, there was what the Crown described in its submissions
as “back and forth”1582 between Mr Rumore and Mr Irwin as the Share Option
Deed between Monaro Mining NL and Voope P/L was progressively prepared.
Four drafts of that document, prepared between 25 July and 12 August 2008,
were tendered in the trial. A final Share Option Deed, replicating the fourth
draft, was executed on 20 August 2008.1583
1509 A great deal of evidence was adduced in what can only be described as
painstaking detail by the Crown in proving the various iterations of that
agreement. It is necessary to set out that evidence, albeit in summary, and its
significance to the Crown case. Before doing so, however, it is important to
note Mr Brook’s dealings with Lehman Brothers after the 23 July 2008
conference with Mr Rumore.
The Brook-Wong teleconference on 23 July 2008

1510 After the conference with Mr Rumore, Mr Brook forwarded to Mr Wong (his
superior in Hong Kong) a proposal, prepared with the support of his Sydney-
based colleague Mr Pryor, according to which Lehman Brothers would support
Monaro Mining NL’s bids for “certain tenements that are expected to come up
for closed government tender in the next few days”.1584 The proposal, which
extended over many pages, records the following:
Monaro has also (unofficially) identified a party whom is currently the holder of
land parcels which are anticipated to be crucial to the successful development
of coal tenements. The “land related” party is seeking to participate in the
ownership of a mine and accordingly provide favourable to terms to any land
reclamation in the event a mining license is awarded. To this end, it is
proposed that Lehman Brothers would receive a 20% option over the shares in
a successful JV bid SPV with Monaro, and a further option for 40% of the SPV
shares would be issued to the land related party. 1585
1511 Mr Brook was questioned extensively about Mr Wong’s rejection of the
proposal and what he (Mr Brook) did in response to that rejection.
1512 Mr Brook gave evidence that Mr Wong rejected “that version of the
proposal”1586 because he was concerned that Monaro Mining NL did not have
1582
MFI 181 p 104.
1583
1584
Exhibit A p 1267.
1585
Exhibit A p 1281.
1586
T 3005.
5KIPGFD[#WUV.++
the expertise to undertake coal exploration. That being the case, Mr Brook said
that he set about “trying to find a party that had the expertise” to “partner with
Monaro”.1587 He explained in cross-examination that he was learning very
quickly that unlike other projects in which he had been involved, “mining and
exploration… are very highly dependent, not just on the resource but also the
expertise and the experience of the management”, hence Mr Wong’s “concerns
that Monaro had no experience with respect to coal and no experience with
respect to developing a mine”.1588
1513 Mr Brook gave evidence that he understood his role with respect to further
development of the proposal as being to use his position as a senior person at
Lehman Brothers to identify potential financial partners and strategic partners
for the Monaro Mining NL transaction and to also assist the Obeids.1589 He said
that, in that capacity, he was acting for “one hundred per cent Lehman
Brothers”.1590 He said he “made no secret” either “internally or externally” of his
continued efforts in relation to the deal following Mr Wong’s rejection of it.1591
1514 Mr Brook said he saw Lehman Brothers’ role in the potential transaction as
being either “a funder” or “an intermediary arranger”.1592 He said that his role at
Lehman Brothers was to “originate” transactions “for all parts of the bank, not
just the Asia Special Situations Group”, headed by Mr Wong, and that he “saw
there was a potential opportunity there for the bank to make fees, if not in
brokering a deal between parties, including bringing in a financial party or
another mining interest”.1593
1515 In cross-examination, Mr Brook maintained that Mr Wong had “full knowledge”

of his continued efforts in that respect.1594 In re-examination, Mr Brook was
taken to a series of emails exchanged, with the first email in the series sent at
5:33pm on 23 July 2008 from Mr Brook to Mr Wong.1595 Mr Brook confirmed
1587
T 3007.
1588
T 3129.
1589
T 3008.
1590
T 3008.
1591
T 3008.
1592
T 3005.
1593
T 3159.
1594
T 3008.
1595
Exhibit AA.
5KIPGFD[#WUV.++
that the emails related to the proposal Mr Brook had outlined to Mr Wong
earlier that afternoon. In particular, Mr Brook was taken to extracts in the
emails where he indicated to Mr Wong that he would “meet these guys and dig
further” and Mr Wong’s response indicating, “Don’t worry, I remain open-
minded.”1596
1516 On 29 July 2008, Moses Obeid forwarded Mr Brook a letter of advice from Mr
Rumore dated 28 July 2008. The letter was addressed to Moses Obeid and
Gerard Obeid and was headed “Purchase two farms (three vendors) at Bylong
Valley”.1597 Mr Brook gave evidence that, at that point in time he regarded
himself and his role as the “nexus” between Monaro Mining NL and “the Obeid
land alliance” but that he was acting in that capacity as an employee of
Lehman Brothers.1598
1517 Mr Brook agreed that “at least from 23 July through to the time of the collapse
of Lehman Brothers” on 15 September 2008, he did not inform anyone at
Monaro Mining NL, nor any member of the Obeid family, that Mr Wong had
rejected the version of the proposal put to him on 23 July 2008 and that,
apparently, Mr Wong did not embrace the proposal in any reformulated sense
after that date to the extent that he was invited to, as to which there was no
evidence.1599 He also agreed that it would have been “misleading” were he not
to inform any partner or client of Lehman Brothers that Mr Wong had rejected
the proposal as he and Mr Pryor had structured it.1600 He maintained that,
despite Monaro Mining NL’s clear interest in Lehman Brothers’ “financial
capability to assist them”,1601 he was not obligated to inform Mr Grigor of that
development because Monaro Mining NL was not his client or a client of
Lehman Brothers.1602
1518 The Crown submitted that the failure to inform Monaro Mining NL of Lehman
Brothers’ attitude to the proposal is not reflective of any dishonesty on Mr
Brook’s part or even any lack of transparency. The Crown submitted I would
1596
T 3253.
1597
1598
T 2900-2901.
1599
T 3005-3006.
1600
T 3006.
1601
T 3007.
1602
T 3007.
5KIPGFD[#WUV.++
simply accept that Mr Brook was entitled to treat Mr Wong’s reluctance as

obliging him “to figure out a way of doing the deal”.1603 The difficulty with that
submission is, as I have noted, no reformulated funding proposal was
produced before Lehman Brothers collapsed on 15 September 2008, that is, a
week after the public launch of the EOI process on 9 September 2008.
The Share Option Deed between Voope P/L and Monaro Mining NL
1519 Despite Lehman Brothers having not confirmed its preparedness to finance
Monaro Mining NL’s bid, the Share Option Deed was being progressively
prepared, with four drafts produced between 25 July and 12 August 2008.
The first draft of the Share Option Deed 1604

1520 On 25 July 2008, the first draft of the Share Option Deed between a Monaro
Mining NL entity as “vendor” and a Lehman Brothers entity as “purchaser” was
prepared by Monaro Mining NL’s solicitors at Clayton Utz. That document was
emailed by Mr Irwin to Mr Grigor,1605 who forwarded it to Mr Brook,1606 who
forwarded it to Mr Rumore,1607 who provided a copy to Moses Obeid.1608
1521 The definition of Shares did not specify a percentage of the ordinary shares in
the Monaro entity as the subject of the Share Option Deed.1609
1522 At a conference with Moses Obeid and Gerard Obeid held on that day, Mr
Rumore was instructed to review that draft of the Share Option Deed. 1610
1523 Also on 25 July 2008, in an email to Mr Rumore, Mr Sassine (the Obeid

family’s commercial accountant) advised that, “[w]ith respect to the SPV(s) you
intend setting up, which I understand to be Unit trusts [sic] with a corporate
trustee” (a clear reference to the company ultimately registered as Voope P/L)
“all units on issue are to be owned by ‘Equitexx Pty Ltd ATF Obeid Family
Trust No 2’.”1611
1603
T 3155; MFI 181 par 411.
1604
1605
Exhibit A p 1305.
1606
Exhibit A p 1355.
1607
Exhibit A p 1373.
1608
1609
Exhibit A p 1379.
1610
Exhibit Q pp 1344.001-1344.006.
1611
Exhibit A p 1391.
5KIPGFD[#WUV.++
1524 Two special purpose vehicle companies, Voope P/L and Geble P/L, were
registered on 28 July 2008.1612 Mr Rumore advised Moses Obeid, Paul Obeid
and Gerard Obeid of that fact on 30 July 2008.1613
1525 Mr Rumore also advised in writing 1614 his concern that, having received
instructions that “Monaro Coal (Aust)” would require “a further party to support
its application for the coal licence in [the] Bylong Valley” (clearly a reference to
Monaro Mining NL, as the parent company, having no capital to finance the
application for the Mount Penny EL itself), the Obeid interests may not be
sufficiently protected. He observed as follows:
Our concern is that Monaro Coal may become a minor participant in the
mining lease operations and by having an option to acquire, for nominal
consideration, a significant part of the share capital in Monaro Coal (Aust), you
will not achieve a significant interest in the overall coal operations.
You need to further think this through to see how your position will be
protected as it may well be that even having an option over 80% of the shares
in Monaro Coal (Aust) may not yield the end participants with any equity like
the equity stake that they originally thought as this company becomes the
“junior player” in the entity which ultimately wins the coalmining lease
concessions.
1526 On 31 July 2008, Monaro Coal P/L was registered.1615 Mr Brook was advised
of that fact by Monaro Mining NL.1616 In his evidence, Mr Grigor described
Monaro Coal P/L as “a specific purpose vehicle to bid for licences from the
Government”.1617 Mr Brook forwarded an email containing the certificate of
registration to Mr Rumore.1618 On 1 August 2008, Mr Rumore forwarded that
email to Moses Obeid, Gerard Obeid and Paul Obeid.1619
1527 Meanwhile, throughout July and August 2008, Mr Rumore continued to act for
the Obeid brothers in relation to the purchase of Donola and the options to
purchase the two parcels of land comprising Coggan Creek.
1612
1613
Exhibit A p 1425.
1614
Exhibit A p 1407.
1615
Exhibit A p 1443.
1616
Exhibit A p 1441.
1617
T 1811.
1618
Exhibit A p 1471.
1619
Exhibit A p 1475.
5KIPGFD[#WUV.++
The second draft of the Share Option Deed 1620

1528 On 5 August 2008, having redrafted the Share Option Deed prepared by
Clayton Utz, Mr Rumore circulated a second draft to Mr Irwin and Mr Brook. 1621
Mr Brook forwarded that draft to Mr Grigor,1622 who also forwarded it to Mr
Irwin.1623
1529 Consistent with instructions Mr Rumore received from Gerard Obeid and
Moses Obeid on 25 July 2008 and his advice of 28 July 2008 responsive to
those instructions,1624 in the second draft of the Share Option Deed the parties
were listed as Monaro Mining NL (Grantor)1625 (replacing “Monaro entity”
(Vendor)1626) and Voope P/L (Grantee)1627 (replacing “Lehman Brothers entity”
(Purchaser)1628). Those details remained the same in the third 1629 and fourth1630
drafts and the executed Share Option Deed.1631
1530 Mr Grigor was given to understand that Voope P/L, the Grantee, was controlled
by the anonymous landholder interests Mr Brook was representing.1632
1531 Mr Brook denied telling Mr Rumore that Voope P/L was being inter-positioned
because of Lehman Brothers’ reluctance to enter into the transaction and that
Voope P/L was incorporated as a special purpose vehicle specifically for use in
the transaction with Monaro Mining NL.1633 He denied that he was playing the
parties against one another or using Moses Obeid and Mr Rumore for his own
purposes to “bring about situations” he was “seeking to develop”.1634 He
1620
1621
Exhibit A p 1565.
1622
Exhibit A p 1583.
1623
Exhibit A p 1609.
1624
1625
Exhibit A p 1567.
1626
Exhibit A p 1375.
1627
Exhibit A p 1567.
1628
Exhibit A p 1375.
1629
Exhibit A p 1831.
1630
Exhibit A p 1861.
1631
Exhibit A p 1927. The signing page of the executed Share Option Deed apparently erroneously lists both
parties as “Grantor” (see Exhibit A p 1939). I do not regard that error as bearing on the facts in issue in the
trial.
1632
T 1868.
1633
T 3169-3170.
1634
T 3170.
5KIPGFD[#WUV.++
insisted that he continued to act referable to his fiduciary obligations to Lehman

Brothers as his employer.1635
1532 Consistent with instructions Mr Rumore received on 25 July 2008, 1636 “Shares”
was defined in the second draft as “80% of the fully paid ordinary shares
issued in [Monaro Coal P/L] at the Satisfaction Date”.1637 That definition was
not amended in subsequent drafts or the executed Share Option Deed. 1638
1533 The second draft also included, for the first time, definitions of
“Consideration”1639 ($100) and “Tenement” (a mining lease, EL or any other
mining interest granted pursuant to the [Mining] Act in the State for the mining
of coal).1640 Those definitions were subject to further negotiation in subsequent
drafts.
1534 Clauses 2 and 3 of the second draft of the Share Option Deed provided the
details of how the option to take the shares in Monaro Coal P/L was to be
granted to Voope P/L.
1535 Clause 2 provided:
By virtue of payment of the Consideration, the Grantor [Monaro Mining NL]

grants to the Grantee [Voope P/L] or its nominee or assignee an option to
have transferred to the Grantee or its nominee or assignee the Shares [80% of
the fully paid ordinary shares issued in Monaro Coal Pty Limited at the
Satisfaction Date (the date that company is granted a Tenement or an interest
in a Tenement)].1641
1536 Clause 3 provided:
Exercise of Option
The Grantee [Voope P/L] can exercise the option by notice in writing to the
Grantor [Monaro Mining NL] given at any time during the period commencing
on the Satisfaction Date and expiring two years after the Satisfaction Date.
If the option is not exercised in accordance with clause 3(a), the option shall
lapse, the Consideration shall be the property of the Grantor and this
document shall be at an end.1642
1635
T 3171.
1636
Exhibit Q p 1344.001.
1637
Exhibit A p 1570.
1638
Exhibit A pp 1834, 1864, 1930.
1639
1640
Exhibit A p 1570.
1641
Exhibit A p 1571.
1642
Exhibit A p 1572.
5KIPGFD[#WUV.++
1537 Clauses 2 and 3 were only subject to minor amendment in subsequent drafts
and in the final version of the Option Agreement executed on 20 August 2008.
1538 More critical to the facts in issue in the trial were the clauses which Mr Rumore
included in the second draft responsive to concerns Moses Obeid raised with
him about the need to control Monaro Coal P/L’s applications for “tenements”.
1539 On 5 August 2008, Mr Rumore advised Gerard Obeid, Moses Obeid and Paul
Obeid by email that he had provided the second draft of the Share Option
Deed to Clayton Utz.1643 He advised that various queries which Moses Obeid
had raised about “various obligations” under the Share Option Deed had been
resolved in Clauses 8(a) to 8(e) of that draft.1644 Those clauses broadly
concerned the control the Obeids would be able to exert over Monaro Coal
P/L’s applications for “tenements”. The clauses provide, inter alia, that all
applications for “tenements” are to be made through Monaro Coal P/L; that
Monaro Coal P/L will lodge a timely application for “tenements” referable to the
timeframe set out in the invitation issued by the Department; that the Grantor
(Monaro Mining NL) will keep the Grantee (Voope P/L) apprised of all
information and developments with respect to applications and the
considerations of applications for “tenements”, including by providing the
Grantee with a copy of any application made; and that prior to lodging any
application the Grantor must confer with the Grantee and act in accordance
with its directions and suggestions.1645
1540 Mr Rumore gave evidence he included those clauses in accordance with his
instructions that the Obeids wanted to be kept involved “throughout the whole
course of the [EOI] process” to ensure the success of Monaro Coal P/L’s
application for the grant of the EL.1646
1643
1644
1645
Exhibit A pp 1572-1573. For completeness, I note that clauses 8(f) and 8(g) provided that no application
made by the Grantor (Monaro Mining NL through Monaro Coal P/L) is to be withdrawn witho ut the prior
written consent of the Grantee (Voope P/L), and that the Grantor would diligently pursues all applications and
do everything possible in order to be successful in having any tenement or tenements granted to it.
1646
T 1994.
5KIPGFD[#WUV.++
1541 Meanwhile, on 6 August 2008, the contract for sale for Donola was executed
with Geble P/L as the purchaser of that property1647 and the call option
agreements were executed by Geble P/L in respect of the purchase of Coggan
Creek.1648 Mr Rumore informed Moses Obeid, Gerard Obeid and Paul Obeid of
those developments.1649
The third draft of the Share Option Deed 1650

1542 On 7 August 2008, the third draft of the Share Option Deed was emailed to Mr
Rumore from Clayton Utz.1651 That draft included comments on the definitions
of “consideration” and “tenement”.
1543 Clayton Utz suggested that “Consideration”, defined by Mr Rumore in Draft 2

as $100,1652 should be defined as $100 together with assistance in obtaining
the tenements.1653
1544 Against the definition of “Tenement”, a Clayton Utz note read, “it would be
advisable to give a more detailed definition if further information about the
tenement[s] applied for is known”.1654
1545 Clauses 8(a) to 8(e), drafted by Mr Rumore in response to concerns raised by

Moses Obeid, were not relevantly amended.1655
1546 On 8 August 2008, Mr Rumore provided Paul Obeid, Gerard Obeid and Moses
Obeid with the third draft of the Share Option Deed, noting the amendments
outlined above, and advising that he would need to discuss with them several
of those amendments, including the revised definition of “tenement”.1656
1547 A further conference with Mr Rumore was convened on 11 August 2008 and
attended by Moses Obeid and Gerard Obeid at which the third draft was
discussed.1657 Mr Rumore was instructed, inter alia, to include the detail
1647
Exhibit A p 1717.
1648
Exhibit A pp 1739-1753; 1771-1785.
1649
Exhibit A p 1787.
1650
1651
Exhibit A p 1829.
1652
Exhibit A p 1570.
1653
Exhibit A p 1834.
1654
Exhibit A p 1834.
1655
Exhibit A p 1837.
1656
1657
5KIPGFD[#WUV.++
“issued prior to 1/1/09” in the definition of “tenement” in the Share Option

Deed.1658 Mr Rumore explained that 1 January 2009 was “the date by which
[the Obeids] were hoping to have some definitive answer [as to the identity of
the tenement] and that’s the further detail that should be given in response to
Clayton Utz’s query” with respect to the definition of “tenement”. 1659
The fourth draft of the Share Option Deed 1660

1548 Subject to instructions obtained in the 11 August 2008 conference, 1661 on 12
August 2008, Mr Rumore sent the fourth draft of the Share Option Deed to Ms
Cuthbertson and Mr Irwin at Clayton Utz1662 and to Moses Obeid and Gerard
Obeid.1663
1549 In accordance with Mr Rumore’s instructions, the fourth draft contained further
amendments to the definitions of “Consideration”, “Condition Precedent” and
“Tenement”.
1550 Consideration was defined as:
…the provision of consultancy, general assistance and advisory services by or

on behalf of the Grantee [Voope P/L] or at the direction of the Grantee for the
benefit of the Grantor [Monaro Mining NL] and [Monaro Coal P/L]. 1664
1551 Tenement was defined as:
…the mining lease, exploration licence or any other mining interest applied for
pursuant to the invitation to tender issued by the Department [of Primary
Industries] at any time after the date of this document but prior to 1 January
2009 and granted pursuant to the [Mining] Act in the State for the exploration
or mining of coal.1665
The executed Share Option Deed 1666
1552 On 16 August 2008, Moses Obeid instructed Mr Rumore that 20 August 2008
was an appropriate date for the exchange of the executed Share Option
1658
T 1997.
1659
T 1997.
1660
1661
1662
Exhibit A p 1859.
1663
Exhibit A p 1857.
1664
Exhibit A p 1864.
1665
Exhibit A p 1864.
1666
5KIPGFD[#WUV.++
Deed.1667 It was executed on 20 August 2008 by Mr Grigor and Ms Adaley from

Monaro Mining NL and Mr Skehan as the sole director of Voope P/L. 1668
1553 The structure of the Share Option Deed was largely, if not entirely uncontested
in the trial. It was summarised in the tendered expert report of Mr Temple-Cole
as follows:1669
1554 Notably, none of the versions of the Share Option Deed, either in draft or as
executed, mentioned Mount Penny, the Bylong Valley, Cherrydale Park,
Donola or Coggan Creek.1670 Yet the parties to that arrangement plainly
understood that it was directed to the eventual grant of an EL in that location,
referable either to “Mount Penny” itself or the properties adjoining it. Mr Grigor
gave evidence that he understood the first draft of the Share Option Deed
related to Mount Penny.1671 Mr Rumore gave evidence to the effect that he
understood from his clients that the tenement in contemplation in the
successive drafts was to underlie the properties at Cherrydale, Donola and
1667
Exhibit A p 1905.
1668
Exhibit A p 1939; Exhibi t C.
1669
Exhibit AT p 49, T 3580-3581.
1670
MFI 192 p 83.
1671
T 1811.
5KIPGFD[#WUV.++
Coggan Creek.1672 The reason that each draft of the Share Option Deed
contemplated the application by Monaro Coal P/L for one or more unspecified
“tenements” remained unexplained.1673
1555 In closing submissions, Mr Neil did not address the progression of the option
deed or Moses Obeid’s role in instructing Mr Rumore as to its form or content.
1556 As put by the Crown in closing submissions, the Share Option Deed was
pursued by Moses Obeid “on the basis of confidential information [Mr]
Macdonald gave to the Obeids that Mount Penny would be included in the EOI
[process], that Monaro [Mining NL] would be invited to participate [in that
process], and as to timing of the EOI launch. It was plainly directed toward an
application by Monaro Mining for the Mount Penny exploration area”.1674
1557 The significance of the evidence as to the evolution of the Share Option Deed
as evidence of Moses Obeid’s participation in the conspiracy and in support of
proof of the existence of the conspiracy was Moses Obeid’s involvement in the
progress of the contractual arrangements between Monaro Mining NL and
Voope P/L and the finalisation of those arrangements in August 2008 prior to
the public launch of the EOI process almost three weeks later. Moses Obeid
was closely involved throughout that process, from instructing Mr Rumore to
review the terms proposed in the initial draft prepared by Monaro Mining NL’s
solicitors; raising his own concerns about whether the first draft adequately
protected the Obeids’ interests; overseeing the introduction of a raft of clauses
drafted by Mr Rumore and directed to that purpose (Clause 8 in the second
draft); through to instructing Mr Rumore as to an appropriate date for
exchanging the final Share Option Deed.1675
1558 I am satisfied that body of evidence establishes that by 20 August 2008 when
the Share Option Deed was executed, that is, almost three weeks before the
public launch of the EOI process in respect of eleven coal release areas,
including Mount Penny, on 9 September 2008, Moses Obeid had succeeded in
positioning his family, under contract, to control what he anticipated would be
1672
T 1997.
1673
MFI 192 p 83.
1674
MFI 181 p 107.
1675
Exhibit A p 1905.
5KIPGFD[#WUV.++
the financial benefits which would flow from the granting of the EL at Mount
Penny to Monaro Mining NL were it the successful tenderer. It is equally clear
that Moses Obeid was able to navigate his way into that position by his use of
various forms of confidential information communicated in breach of Mr
Macdonald’s duties and obligations and other valuable information furnished by
Mr Macdonald.
1559 It is also clear to me that not only was the executed Share Option Deed
prepared referable to that information and based on an expectation that
Monaro Mining NL would be the preferred applicant for the grant of an EL at
Mount Penny, but each of the drafts of that agreement, including as early as
the first draft prepared on 25 July 2008, over six weeks before the public
launch of the EOI process on 9 September 2008 when the DPI invited
nominated mining companies, including Monaro Mining NL, to participate in
that process, reflected that same scenario.
1560 I am left in no doubt that the executed Share Option Deed reflected Moses
Obeid’s desire to secure the financial benefits which would flow to his family
were Monaro Mining NL to be the preferred applicant for the grant of the EL at
Mount Penny.
1561 In my view, the fact that the deal with Monaro Mining NL was ultimately
unwound when Monaro Mining NL resolved to abandon its bid in May 2009 (as
to which see below) does nothing to diminish the probative weight of the
evidence as to the circumstances in which it was drafted and executed in proof
of the existence of the conspiracy and Moses Obeid’s participation in it.
1562 Once the EOI process formally commenced under the aegis of the Evaluation
Committee and overseen by Mr Fennell, the probity auditor, the currency with
which the Obeids had effectively traded with Monaro Mining NL, namely by the
use of confidential information provided to them by Mr Macdonald, diminished
in value since Mr Macdonald could not exert any influence over the outcome.
Meanwhile at the DPI: The production of the documents the subject of the
eighth act of misconduct from late July 2008
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
5KIPGFD[#WUV.++
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.
1565 The Crown invited Mr Schiavo’s attention to a number of iterations or drafts of

a map titled “Proposed EOI Areas” dated variously July, August and
September 2008 in which a number of areas (including the area designated as
“Mt Penny”) were nominated for release. As other evidence makes clear, maps
of that kind were incorporated as “drafts” in a number of Ministerial Briefing
documents, as the documentation for the public release of the EOI Information
Package was in the process of being settled.1677
1566 The provenance of these documents, the order in which they were prepared
and the reasons for the variation in their preparation was examined in detail in
the course of lengthy cross-examination. In the result, however, the only
relevance of that cross-examination to the issues that presented in the Crown
case as closed, and the case each of the accused advanced in closing
arguments, was whether what the Crown described as Mr Schiavo’s “third
draft” of the “Proposed EOI Areas” map and which comprised, by 21 July 2008,
“14 areas [for release]” (including Mount Penny which had been included in the
same format as Area 7 without variation), was confidential information and, if
so, whether it was provided to Edward Obeid, Moses Obeid or another member
of the Obeid family in breach of Mr Macdonald’s Ministerial duties and
obligations in furtherance of the conspiracy alleged. That conduct is the subject
of the eighth act of misconduct.
1676
T 524.
1677
Exhibit A pp 1050.005, 1101, 1131, 1166.001, 1249, 1563, 1940.001.
5KIPGFD[#WUV.++
The eighth act of misconduct

1567 The eighth act of misconduct, as particularised, was also subject to
amendment in the course of the trial. It was ultimately particularised as follows:
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 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).
and in breach of his duty of confidentiality, as the information in the document
was confidential.1678
1568 As originally particularised, the eighth act of misconduct alleged that on or after
14 August 2008 Mr Macdonald caused Edward Obeid and/or Moses Obeid or
another member of the Obeid family to be provided with a Memorandum
entitled “Coal allocation” dated 5 August 2008 (the Coutts Memorandum), 1679
including the page of the memorandum with the heading Medium Coal
Allocation Areas and a map titled “Proposed Coal Release Areas for EOIs”
(Schiavo Map 3). As originally particularised, it was also the Crown case that
on or after 14 August 2008 Edward Obeid, Moses Obeid or another member of
their family received that information from Mr Macdonald as an act in
furtherance of the conspiracy and as evidence of their participation in the
conspiracy.1680
1569 After leave was sought and granted to amend the eighth act of misconduct, the
Revised Statement of Particulars alleged that the eighth act of misconduct was
committed “on or after 23 July 2008”.1681 It also deleted any reference to
1678
MFI 134/1 p 3.
1679
MFI 2.
1680
MFI 2.
1681
MFI 134/1 - The amendment to the particulars of the Crown case, including the amended eighth act of
alleged misconduct, is the subject of a separate judgment. Ultimately I was not satisfied that the proposed
change to the eighth act of misconduct (informa tion which also had the status of confidential information
within the timeframe that the Crown now alleges that information was provided to Edward Obeid, Moses
Obeid or another member of the Obeid family and received by them) fundamentally altered the Crown case or
the Crown Case theory, such that I should prevent the Crown from closing its case the basis of the Revised
Statement of Particulars.
5KIPGFD[#WUV.++
Edward Obeid or Moses Obeid, or another member of the Obeid family, being
provided by Mr Macdonald with the Coutts Memorandum or any part of that
document, whilst retaining the allegation that a page “with the heading Medium
Coal Allocation Areas and a map titled “Proposed Coal Release Areas for
EOIs” (Schiavo Map 3) were provided in breach of Mr Macdonald’s duties of
confidentiality and impartiality. The Revised Statement of Particulars makes the
corresponding altered allegation that Edward Obeid and Moses Obeid received
a document with the heading “Medium Coal Allocation Areas” and a map titled
“Proposed Coal Release Areas for EOIs” (Schiavo Map 3), deleting any
reference to the Coutts Memorandum (or any part of that document) as the
source of the documents allegedly provided by Mr Macdonald and received by
either Edward Obeid or Moses Obeid or another member of the Obeid family.
1570 It remained the Crown case, however, that sometime after 23 July 2008 Mr
Macdonald caused Schiavo Map 3, together with another page of the
Ministerial briefing document in which it was included, being a document
headed Medium Coal Allocation Areas, to be provided to Edward Obeid and/or
Moses Obeid or another member of their family, both documents containing
1571 On 23 July 2008 (coincidentally, the date when Mr Rumore was introduced to
Mr Brook by Moses Obeid) a version of the Departmental working papers were
sent by Mr Mullard to Ms Moloney.1682 The Departmental working papers
included Mount Penny as one of the four “medium coal allocation areas” with
the other categories including “large expression of interest areas” and “small”
allocation areas.1683 Mount Penny was the only one of the four medium coal
release areas in the Western Coalfield.1684 Of the seven small allocation areas
Long Mountain, Ben Bullen, Long Road, Melrose, Cameron Road and Illford
are in the Western Coalfield. Those eleven areas (that is, four medium and
seven small coal allocation areas) became the eleven small to medium areas
ultimately released for tender on 9 September 2008.
1682
Exhibit A p 1211.
1683
The description given to Mount Penny in this document is the same information as in the earlier
document.
1684
Spur Hill and Glendon Brook are in the Hunter Coalfield; Goonbri is in the Gunnedah Coalfield.
5KIPGFD[#WUV.++
1572 On the same date, a Ministerial Briefing was created by Ms Madden entitled
“Coal Allocation Proposal”.1685 The issue the subject of this Ministerial Briefing
was to seek the Minister’s approval to “release EOI packages for coal
allocation areas”.1686 Attached to that document was what the Crown described
in its closing submissions as “a copy of Schiavo Map 3 (showing 14 areas) with
[a] compass symbol, identical”1687 to the version of Schiavo Map 3 which Mr
Brook later emailed to himself on 22 September 2008 (as to which see par
1589 and following below). That draft was referred to in the trial as Schiavo
Map 3.1688 It is reproduced below.
1685
1686
Exhibit A p 1241.
1687
Exhibit A p 1249; MFI 181 p 108.
1688
5KIPGFD[#WUV.++
1573 That Ministerial Briefing was emailed to Mr Gibson on 28 July 2008. 1689
1689
Exhibit A p 1432; T 2492-2493.
5KIPGFD[#WUV.++
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 Gibson1690 and
where Mr Gibson gave evidence that it was his practice to provide Ministerial
Briefings to Mr Macdonald “at the first available opportunity”, 1691 I am
comfortably satisfied that Mr Macdonald was provided with the Ministerial
Briefing including, relevantly, Schiavo Map 3.1692
1576 In an email to Mr Mullard on 30 July 2008, Mr Gibson noted the “short

descriptions” for each coal release area and enquired whether there was:
…any further detail or narrative on these areas in particular? We’re keen to

see some more info on each of the areas if we can. 1693
1577 That request was actioned by Ms Madden the following day. She sent an email
to Mr Gibson which included documents she described as “the latest
information on areas that is available to the Department with research
continuing”. In that document Mount Penny is described consistently as
containing 100Mt of open cut, export thermal grade coal at a depth of
300m.1694 There is no qualification on the potential tonnage as being less than
100Mt.
1690
Exhibit A p 1432.
1691
T 2491.
1692
Par 1147 and following.
1693
1694
Exhibit A p 1452.
5KIPGFD[#WUV.++
1578 The next iteration of the DPI’s working papers was Mr Coutts’ memorandum to
Dr Sheldrake of 5 August 2008 (the Coutts Memorandum).1695 In that
document, specific reference was made to the estimated potential financial
return from the release of the large areas. They were of direct interest to Dr
Sheldrake as the Director-General of the Department given the
interrelationship between the statutory requirements under the Mining Act, the
Department’s relationship with Treasury and the Department’s governance of
the funds deposited in the Coal Allocation Fund. Although the Coutts
Memorandum placed great emphasis on the proposed release of the large
areas (Ridgelands, East Bargo and Benelabri) these were not ultimately the
subject of an open (competitive) tender process. Of apparently secondary
interest in the Coutts Memorandum was the potential for a number of smaller
companies who had expressed their interest in entering the coal market to
apply for eleven small to medium areas being the subject of a competitive
tender process.
1579 The final iteration of the working papers is in the form of a further briefing note
dated 9 September 2008 prepared by Ms Madden seeking the approval of the
Minister to release the EOI package for the eleven small to medium coal
release areas.1696 This Briefing note is signed by Mr Mullard as Director of Coal
and Petroleum Development. Mr Coutts’ signature is included against his
handwritten notation “discussed with Director and Minister and approved”. 1697
In the final iteration of the working papers the same information is included
concerning the historically high prices for coal and strong market prices for coal
as in previous Ministerial Briefings. Additionally, the background narrative
refers to the need to provide for the inclusion of smaller mining companies and
their attraction to the smaller remnant coal deposits with a view to those
smaller companies committing resources to exploration to optimise the
prospect of coal recovery and to generate a financial return to Government. Mr
Mullard gave evidence that Mount Penny was not technically a remnant area
but more accurately described as a medium-sized area originally “part of a
1695
1696
1697
Exhibit A p 1957.
5KIPGFD[#WUV.++
larger one [area] but made into a medium sized area”.1698 He gave further
evidence that under the Coal Allocation Guidelines, Mount Penny was more
accurately described as a “smaller area unrelated to an existing mine”. 1699 He
further observed that none of the four medium sized areas of the eleven areas
was in a “remnant” category.
1580 A list of 43 companies was included as the potential listing for companies who
would be invited to submit an EOI for the small to medium coal allocation
areas.
1581 Reference was also made to the Coal Allocation Guidelines with respect to
“small areas unrelated to existing mines” and ultimately it was recommended
that there be a limited EOI for the release of the eleven areas. Mount Penny is
described consistently with alterations to the timeframe for the release of the
EOI package.
The Coutts memorandum of 5 August 2008

1582 The Coutts Memorandum included an annotated duplicate of Schiavo Map
31700 together with a page titled “Medium Coal Allocation Areas”.1701
1583 That page read as follows:
MEDIUM COAL ALLOCATION AREAS

GOONBRI: Gunnedah Coalfield
The Goonbri area is located east of Whitehaven Coal’s Tarrawonga mine and
Idemitsu’s Boggabri mine. There is limited existing borehole data. Future
exploration may identify an export thermal open cut resource estimated to be
less than 10Mt insitu. The area may contain some underground resources.
SPUR HILL: Hunter Coalfield
The Spur Hill area, located to the east of the Hunter River and the village of
Denman, may contain 20 Mt of open cut and 80 Mt of underground coal. The
area maybe (sic) adversely affected by a major north-south fault system and
re-evaluation and remodelling are required prior to the consideration of further
exploration.
GLENDON BROOK: Hunter Coalfield
Located 12km east of Singleton and south of Mitchells Flat, the Glendon Brook
area is expected to contain around 150Mt of thermal coal. The area is likely to
1698
T 734.
1699
T 734 – clearly a reference to Wiles Map 2.
1700
Exhibit A p 1563.
1701
Exhibit A p 1560.
5KIPGFD[#WUV.++
have steeply dipping coal seams and fault zones. The area has previously
been allocated and some initial exploration has been undertaken however the
company had financial difficulties and the project did not advance. The area is
not currently held under any coal title.
MT PENNY: Western Coalfield
The area is expected to contain opencut (sic) and underground resources
close to existing rail facilities. Estimated open cut resources are expected to
be around 100Mt in the Mt Penny area with additional underground coal
potential. Resources are contained within the Ulan Seam and would be
suitable for export thermal and domestic thermal markets. Raw ash ranges
from 15 – 27%.
Time Frame for all medium Expression of Interest (EOI):
EOI Information
and data package preparations 4 weeks End September
EOI Period 8 weeks End December
EOI Assessment 4 weeks End January1702
1584 Neither Dr Sheldrake1703 nor Mr Gibson1704 could recall seeing the Coutts
Memorandum or discussing it with the Minister. Mr Schiavo gave evidence that
he had “no idea” how Schiavo Map 3 came to be included in it. 1705
1585 Neither the EOI package published on 9 September 2008 nor the updated
package published in January 2009 contained Schiavo Map 3.1706
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 2008.1707 Later that day,
a meeting with Edward Obeid is noted in Mr Macdonald’s diary. 1708 Another
meeting between Edward Obeid and Mr Macdonald is recorded on 20 August
2008.1709 A further meeting was scheduled in Edward Obeid’s diary between
the three accused at Sydney Hospital Cafe the following day. 1710 It is the
Crown case that those meetings provided an opportunity for Mr Macdonald to
1702
Exhibit A p 1560.
1703
T 2379.
1704
T 2494.
1705
T 543.
1706
Exhibit G p 9.
1707
1708
Exhibit A p 1887.
1709
Exhibit A p 1919.
1710
Exhibit A p 1919.
5KIPGFD[#WUV.++
provide Edward Obeid (or Moses Obeid) with Schiavo Map 3 and the page of
the Coutts Memorandum headed “Medium Coal Allocation Areas”. 1711
Is the eighth act of misconduct established and, if so, was it committed in

furtherance of the conspiracy?
1587 There can be no dispute that Schiavo Map 3, prepared on 21 July 2008, was
attached to a Ministerial briefing document dated 23 July 2008 1712 which was
emailed to Mr Gibson in the Minister’s office on 28 July 2008.1713 In addition,
for reasons already given, I am satisfied that Mr Macdonald was in possession
of Schiavo Map 3 after a copy of that map was emailed to Mr Gibson on 28
July 2008.1714
1588 On 22 September 2008, at 4:54PM, Mr Brook sent an email1715 to Mr Yin of

Tianci Inc,1716 attaching a document which contained Schiavo Map 3.1717 Mr
Brook gave evidence that this map was given to him by Moses Obeid in “late
July, early September”.1718 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.1719
1589 At 4:57pm on the same day Mr Brook emailed to himself both documents. 1720
Mr Brook gave evidence that he instructed Amanda Turner, a personal
assistant at Lehman Brothers, to transcribe the document titled “MEDIUM
COAL ALLOCATION AREA”.1721 Mr Brook amended the document by deleting
the reference to Goonbri and adding to the sections on Spur Hill, Glendon
1711
Exhibit A p 1560.
1712
Exhibit A p 1239.
1713
Exhibit A p 1432; T2492.
1714
Exhibit A pp 1432, 1437; T 2492.
1715
Exhibit A p 2057.
1716
Tianci Inc - a large industrial energy end user located in northern China (Exhibit A p 2871).
1717
Exhibit A p 2059.
1718
T 2912.
1719
Stage One was expected to yield 100Mt of “high grade thermal coal”. Stage Two was expected to yield an
additional 700Mt of “high grade thermal coal”. Mr Brook confirmed this data, and the fact he received it from
Moses Obeid, in cross-examination (T 3229). In chief, Mr Brook identified Stage One as “the anticipated initial
exploration licence which was imminently going to be put up for tender, or had been, invited to by the DPI to
Monaro” and Stage Two as “the anticipated contiguous area adjacent to the first stage”(T 2912). He gave
evidence that he had further dealings with Mr Yin after sending him this email including during his travels to
Beijing in the following month.
1720
Exhibit A p 2057.
1721
5KIPGFD[#WUV.++
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. 1722
1590 In cross-examination, Mr Brook accepted the possibility that Schiavo Map 3

was given to him by someone at Monaro Mining NL.1723 Mr Neil submitted I
would be satisfied there was a reasonable possibility that both documents the
subject of the eighth act of misconduct 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.
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
3.1724 He did not have any knowledge of the map having been sent as an
attachment to an email by Mr Brook.1725 He gave evidence that he did not know
Mr Brook.1726 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.1727
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
1722
T 2910.
1723
T 3191-3192.
1724
Exhibit A p 2059.
1725
T 543.
1726
T 544.
1727
MFI 181 p 108.
5KIPGFD[#WUV.++
further finding that Mr Macdonald was provided with the relevant page of the
Coutts Memorandum during the 14 August 2008 meeting.
1594 I am also able to find that Mr Macdonald used the information in those
documents, which he had obtained in office, in order to confer a private
advantage to the Obeids by causing those documents to be provided to
Edward Obeid, Moses Obeid or another member of their family in breach of his
Ministerial duties of confidentiality.
1595 Regardless of the confidential status of those documents, the provision of that
information to the Obeids at a time when the EOI process had not been
publicly announced, was also a clear breach of his Ministerial duties and
obligations of impartiality to act disinterestedly in the public interest in
circumstances where Mr Macdonald knew the Obeids owned Cherrydale Park
and where he knew by 17 June 2008 a new coal release area named Mount
Penny had been identified by the DPI which would inevitably include
Cherrydale Park given the proximity of that property to Mount Penny.
1596 I am also satisfied that the information in Schiavo Map 3 and the page of the
Coutts Memorandum conferred a consequential benefit which Moses Obeid
sought to exploit by providing that information to Mr Brook, who then
approached potential investment partners for Monaro Mining NL to peruse their
application for the granting of an EL at Mount Penny, equipped with the
additional bargaining power of information concerning the upcoming EOI
process and the size and scope of the medium coal release areas to be
included in that process.
1597 In my view, there is no evidence capable of establishing the reasonable

possibility that either or both of those documents were provided by anyone
other than Mr Macdonald. I also accept the Crown’s closing submission that
there was “ample opportunity” for Mr Macdonald to do so in late August 2008
given the three scheduled meetings with the accused at that time.1728 For those
reasons, I am also satisfied that Mr Macdonald committed the eighth act of
misconduct in furtherance of the conspiracy. That is, he would not have
committed that act were it not for the improper purpose alleged by the Crown.
1728
MFI 181 p 108.
5KIPGFD[#WUV.++
The impact of the fact the Coutts Memorandum was not signed by the Minister
upon proof of the eighth act of misconduct
1598 Mr Martin submitted that, in light of Mr Badenoch’s evidence that “the only way”
to determine that Mr Macdonald had seen and read a document such as a
Ministerial Briefing or the Coutts Memorandum was if the Minister’s signature
was on the document, the “unsigned digital copies of Ministerial Briefings” in
evidence “do [not] establish that Mr Macdonald saw and read them, absent
credible and reliable sworn evidence of this fact”.1729
1599 Mr Martin did not elaborate on which documents he referred to in that

submission. Nor did he explain the impact ultimately on proof of the facts in
issue of the status of certain unsigned documents.
1600 As I see it, the gravamen of that submission seems to be that the Coutts
Memorandum dated 5 August 2008 which contained the confidential
information the subject of various of the eight acts of misconduct cannot be
taken to have been provided to and read by Mr Macdonald where Mr
Macdonald’s signature does not appear in the version of those documents
tendered in the trial.
1601 I am not able to accept that submission.
1602 The Crown did not seek to prove Mr Macdonald’s receipt of official documents
by reference to TRIM, the electronic document management system used by
the Department and the Minister’s office which was described by Mr Gibson as
“an electronic record to record the comings and goings of all of those
documents”.1730
1603 Mr Badenoch gave the following evidence:
Q. Just as far as you have mentioned that the Minister would read the
documents even late at night during parliamentary sittings, just about the
proportions of briefs, is it the case that the Minister would sign to indicate that
he approved in 95% of cases of these briefings?
A. I think so, yes. I think that would probably be an accurate number. You have
got to understand that any sort of issues have been ironed out between the
policy adviser and the department prior to then so that hopefully what goes
forward to the Minister is an appropriate reflection of Government policy and
1729
MFI 190 p 32.
1730
T 2458.
5KIPGFD[#WUV.++
the desires that the Minister has communicated in the first instance. So, yes,
95% would be correct.1731
1604 The absence of Mr Macdonald’s signature on those documents is readily
explained by the fact that as they appear in their tendered form as attachments
to emails, for example, to Mr Gibson, in that form they had not yet been
provided to Mr Macdonald.
1605 Insofar as Mr Gibson gave evidence of having provided various documents,

including the Coutts Memorandum dated 5 August 2008, to Mr Macdonald in
accordance with his duties as Mr Macdonald’s Deputy Chief of Staff, I am well
prepared to accept that evidence as credible and reliable.
1606 With respect to the eighth act of misconduct, Mr Martin submitted the evidence
cannot establish that Mr Macdonald received the Coutts Memorandum dated 5
August 2008. That submission is not strictly to point in light of the Crown’s
amendment to that particular. I am satisfied, for the reasons provided above,
that Schiavo Map 3 was provided to Mr Macdonald by Mr Gibson as part of a
Ministerial Briefing document on 28 July 2008 and that the relevant page of the
Coutts Memorandum was discussed at the 14 August 2008 meeting attended
by Mr Macdonald.
1607 That being the case, for the reasons set out comprehensively above, I am
satisfied the eighth act of misconduct is established.
The public launch of the EOI process and Monaro Mining NL is invited
1608 On 9 September 2008, Monaro Mining NL received a letter from the DPI
enclosing the EOI Information Package and inviting Monaro Mining NL to
participate in the EOI process.1732 The following eleven small to medium coal
release areas were included, being coincident with the areas included in Ms
Moloney’s and Mr Schiavo’s maps:
(1) Goonbri
(2) Vickery South
(3) Spur Hill
(4) Mt Penny
1731
T 2350.
1732
Exhibit A p 1991.
5KIPGFD[#WUV.++
(5) Yarrawa
(6) Glendon Brook
(7) Long Mt
(8) Ilford
(9) Melrose
(10) Cameron Road
(11) Ben Bullen
1609 Mr Brook gave evidence that Mr Rampe informed him that Monaro Mining NL
had received the invitation.
1610 The following day, the Monaro Mining NL monthly directors meeting was
convened. Mr Rampe furnished an exploration report in advance of the
meeting in which he informed the directors of “an approach by an employee of
Lehman Brothers” who “purported to represent a group of Chinese coal
companies who wished to acquire coal properties in the Hunter Valley region in
New South Wales and is looking for an Australian company to tender for the
projects on their behalf”.1733 Mr Rampe also informed the directors that a new
company, Monaro Coal P/L, had been incorporated and registered. 1734
1611 The parties at trial did not explore with Mr Brook, Mr Rampe or Mr Grigor why
the Board of Monaro Morning NL were informed, apparently for the first time, of
Mr Brook’s “approach”, despite it being in mid-July 2008, or the basis for Mr
Rampe’s reference to the group of “Chinese based coal companies”.
Dealings between Mr Brook, Monaro Mining NL and the Obeids following the
collapse of Lehman Brothers
1612 On 15 September 2008, less than a week after the EOI process was publicly
launched, Lehman Brothers entered Chapter 11 insolvency as a consequence
of which Mr Brook’s employment was terminated.1735
1613 On 16 September 2008, Mr Brook met with Moses Obeid and informed him of
the collapse of Lehman Brothers, explaining that he remained confident he
1733
T 1570.
1734
Exhibit A pp 2019-2022; T 1569-1570, 182, 1907, 3179.
1735
T 2804.
5KIPGFD[#WUV.++
could find a financial partner to support Monaro Mining NL’s bid for Mount
Penny.1736
1614 On 22 September 2008, Mr Brook sent an email1737 to Mr Yin of Tianci Inc,

which contained the confidential information the subject of the eighth act of
misconduct (which I have found is established – see pars 1588-1598 above).
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. The
document referred to the Mount Penny coal project as comprising in two
stages. Stage One was expected to yield 100Mt of “high grade thermal coal”.
Stage Two was expected to yield an additional 700Mt of “high grade thermal
coal”.1738
1615 Mr Brook identified Stage One as “the anticipated initial exploration licence
which was imminently going to be put up for tender, or had been, invited to by
the DPI to Monaro” and Stage Two as “the anticipated contiguous area
adjacent to the first stage”.1739 He gave evidence that he had further dealings
with Mr Yin after sending him that email including during his travels to Beijing in
the following month.
1616 On 23 September 2008, Mr Brook, via his company Oregon Standard P/L, was
appointed as consultant to Monaro Mining NL. The letter of appointment
outlined Mr Brook’s role as providing the following services: to “identify suitable
parties to joint venture with Monaro on tendering bids” to “assist with the
negotiation of joint venture terms with each party” and to “oversee the tender
process of each bid in co-ordination with Monaro and the joint venture
parties”.1740
1617 Mr Brook explained the circumstances in which he negotiated with Monaro

Mining NL for the appointment of Oregon Standard P/L as a consultant as
follows:
When the news of Lehman Brothers entering into Chapter 11 became public, I
met with Monaro and we agreed that obviously I was going to be out of a job
1736
T 2906.
1737
Exhibit A pp 2057-2061
1738
T 2912.
1739
T 2912.
1740
5KIPGFD[#WUV.++
but they wanted me to continue to work with the land alliance and them to try
and find a financial partner because they had been invited to tender on the
exploration licences.1741
1618 Mr Brook confirmed that under the consultancy agreement he was paid
$25,000 per month for a period of three months.1742
1619 The letter of appointment also contained an exclusivity clause which I am

satisfied was not honoured by Mr Brook in any respect. Mr Brook informed
Moses Obeid that he intended to fulfil his obligations to Monaro Mining NL
under the consultancy agreement but he would continue to act as an
intermediary to try to broker a deal between the two parties and that he would
keep him abreast of his activities under the agreement with Monaro Mining NL.
Moses Obeid responded by indicating to Mr Brook if he was successful in
finding a financial partner and consummating a deal with Monaro Mining NL, he
would be “reward[ed] with a percentage of the transaction”.1743 Mr Rampe and
Mr Grigor gave evidence that they were unaware that Mr Brook was sending
internal Monaro Mining NL communications to Moses Obeid or that he was
offered “a reward” from the landowners behind Voope P/L.
1620 From 15 to 28 October 2008, Mr Brook travelled overseas to various

destinations including Beijing.1744 In a series of emails between Mr Brook, Mr
Rampe and Mr Grigor between 16 to 18 October 2008, Mr Brook advised that
“the bones of the deal will provide Monaro with enough money to pay the first
$1m [part of the funding criteria under the EOI Process Information Package –
see later at par 1673], the drilling program (circ $4m) and the land at circ
$4m”.1745 He gave evidence that the parties to the deal discussed in that email
were Tianci Inc, Monaro Mining NL and the Obeid land alliance. 1746
1621 Mr Brook also gave evidence that during that trip, he was in daily
communication with Moses Obeid, updating him on his progress in
endeavouring to attract potential Chinese joint venture partners. 1747
1741
T 2903.
1742
T 2904.
1743
T 2906.
1744
Exhibit Z.
1745
Exhibit A p 2316.
1746
T 2914.
1747
T 2919.
5KIPGFD[#WUV.++
1622 On 24 October 2008, in an email to Mr Rampe, Mr Brook wrote the following:
I have been in contact with the parties who control the subject land for what I
call Stage One. It turns out that they are determined to acquire the remaining
land under their own steam in anticipation of our project proceeding. Perhaps
we should simply refer to the requirement to take an option over the land in the
future (there are three owners by the way).1748
1623 Mr Brook rejected the proposition put to him by Mr Neil that it was not until 24
October 2008 that he was given information that any land not already owned
by the “land alliance” would be purchased.
1624 On 26 October 2008, Mr Brook sent an email to Mr Xie copied to Mr Yin

attaching the draft Memorandum of Understanding between Monaro Mining NL
and an as yet unspecified “Chinese Partner” for the Mount Penny project. 1749
Mr Brook the forwarded that email and the attachment to Moses Obeid. 1750 He
gave evidence that he did that consistent with his agreement with Moses Obeid
that he would keep him informed of his progress in “trying to attract a financial
or strategic investor” to support Monaro Mining NL’s application for the Mount
Penny EL.1751 He also evidence that he was the “main author of that
document”.1752
1625 On 28 October 2008, Mr Brook sent an email to Moses Obeid which attached a
document entitled “Mt Penny [MRO].pdf”. On the Crown case, that document is
Monaro Mining NL’s draft EOI application for the Mount Penny Coal Release
Area dated 10 October 2008.1753 Mr Brook confirmed that he received the
document from Mr Rampe and that he forwarded it to Moses Obeid, consistent
with his agreement with him that he would keep him informed. 1754 Mr Rampe
gave evidence that Mr Brook did not inform him of his intention to forward the
draft application to anyone outside of Monaro Mining NL.1755
1748
1749
1750
Exhibit A p 2381.
1751
T 2919.
1752
T 2919.
1753
1754
T 2921.
1755
T 1598.
5KIPGFD[#WUV.++
1626 On 19 November 2008, the Memorandum of Understanding with Tianci Inc was
executed by Mr Rampe on behalf of Monaro Mining NL.1756 Mr Brook gave
evidence that the document was executed by an unknown person on behalf of
Tianci Inc in his presence.1757
1627 Monaro Mining NL submitted its EOI application for the Mount Penny Coal
Release Area on 21 November 2008.1758 The application included an
Additional Financial Contribution of $25 million. Mr Brook gave evidence that
he was not involved in its drafting; nor was he involved in preparing earlier
iterations of the EOI application.1759
1628 The (initial) EOI process closed on 24 November 2008.1760
1629 On 25 November 2008, Mr Rampe sent an email to Mr Grigor, copied to Mr

Brook and Mr Bowman, which included a table identifying the applicants for
each of the eleven coal release areas which had by that date been published
by the DPI in accordance with EOI protocols.1761 The Jain Group was identified
as the only other applicant for Mount Penny. Approximately 30 seconds after
receiving this email, Mr Brook forwarded it to Moses Obeid. In cross-
examination Mr Brook confirmed that he did not seek permission from Monaro
Mining NL to forward the email to Moses Obeid. He explained that “it was
understood that I was relaying the information to the landholders”. 1762 Neither
Mr Rampe nor Mr Grigor was aware that Mr Brook was communicating that
information to the landholders alliance.1763 Mr Rampe gave evidence that he
knew Mr Brook was promoting “the project” to investors but that it was his
expectation at the time that internal company documents would remain
confidential.1764
1756
1757
T 2920.
1758
1759
T 2922.
1760
Exhibit A pp 2887-2888.001; T 2277.
1761
Exhibit A p 2885.
1762
T 3195.
1763
T 1599, 1842.
1764
T 1599.
5KIPGFD[#WUV.++
1630 Also on 25 November 2008, Mr Brook prepared a document headed “Financing

Partners’ Update”.1765 He gave evidence that he prepared the document
consistent with his obligations under the consultancy agreement with Monaro
Mining NL to find potential financial or strategic partners to support Monaro
Mining NL’s application for ELs under the EOI process and that he was
updating his “client” as to his progress “with respect to each particular licence
which was being put up by the DPI”.1766 He gave evidence the financing
partners at the time, for whom the document was prepared, were “a number of
Chinese parties” including Tianci Inc.1767 Mr Brook gave copies of the
document to Monaro Mining NL and Moses Obeid.1768 He attributed the
reference in the document to “initial discussions with the three individual
owners that make up between them circa 75% of the subject area” to
information provided to him by Moses Obeid that the “initial discussions with
three individual owners indicated they will form a land alliance”. 1769
1631 On 26 November 2008, another Monaro Mining NL directors meeting was

convened.1770 The directors were advised, inter alia, of the nonbinding
Memorandum of Understanding with Tianci Inc. The file note of the meeting
indicated that it was represented to the directors that Mr Brook was “very
confident” that Monaro Mining NL would be “granted an exploration licence for
the Mt Penny release area”.1771
1632 On 8 December 2008, Mr Rampe sent Mr Grigor and Mr Brook a file note of a
meeting convened at Monaro Mining NL on 3 December 2008. 1772 Mr Brook
confirmed that he attended that meeting with Mr Kaidbay. He said that prior to
the meeting, he met with either Moses Obeid or Paul Obeid. Mr Rampe’s file
note indicates that Mr Brook advised Monaro Mining NL that he would assess
the Jain Group’s suitability for a joint venture with Monaro Mining NL and that
“one or more of the Mt Penny property owners, together with other 3rd parties
1765
1766
T 2925.
1767
T 3070.
1768
T 3070.
1769
T 3071.
1770
1771
1772
Exhibit A p 2931.
5KIPGFD[#WUV.++
are interested in providing Monaro with the initial DPI funding”. 1773 Mr Brook
gave evidence he made that offer on the strength of Moses Obeid’s suggestion
that, in the event that Monaro Mining NL was unable to fund the entirety of the
Additional Financial Contribution of $25 million,1774 he and his “associates”
might be able to provide that funding.1775
1633 On 9 December 2008, Mr Brook prepared a document headed “Investment

Opportunity” which stated that Monaro Mining NL was “shortlisted for Mt Penny
and an EL is expected to be granted in January 2009”.1776 Mr Brook gave
evidence that he authored the first three paragraphs, with the balance of the
document being “extracted with permission” from Monaro Mining NL’s EOI for
Mount Penny.1777 Mr Brook showed the document to prospective financial
partners.
1634 In January 2009, an internal Monaro Mining NL “Monthly Exploration Status

Report’ was prepared by Mr Rampe and distributed to the Board. 1778 The
Report indicated Mr Brook had advised Monaro Mining NL that its proposed
Additional Financial Contribution was “on track” and was “significantly ahead of
its competitors”.1779 Mr Brook further advised that Monaro Mining NL was “likely
to be advised of the result of its application within approximately two
weeks”.1780 Mr Brook gave evidence he had not seen other applicants’ bids and
that he did not recall telling Monaro Mining NL that its proposed Additional
Financial Contribution was “significantly ahead” of other bids. 1781
1635 From 4 to 27 January 2009, Mr Brook visited various overseas destinations,

including India and London, continuing his efforts (unsuccessful in the end
result) to secure financial backing for Monaro Mining NL’s bid for the EL at
Mount Penny.1782
1773
Exhibit A p 2931.
1774
The significance of which see later at par 1672 and following.
1775
T 2929.
1776
1777
T 2929, 3091.
1778
Exhibit 20.
1779
Exhibit 20.
1780
Exhibit 20.
1781
T 2937.
1782
Exhibit Z.
5KIPGFD[#WUV.++
The reopening of the EOI process and the ninth act of misconduct
1636 On 9 January 2009, the Department formally reopened the EOI process, with
the updated closing date of 16 February 2009.1783 The events which followed
are relevant to the ninth act of misconduct which was particularised as follows:
1784
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) 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.
1637 It is also the Crown case that between 27 November 2008 and 13 January
2009, Edward Obeid and/or Moses Obeid received information from Mr
Macdonald that the EOI process was to be (or was) reopened to allow the
“White Group” of companies (including Cascade Coal P/L, the company with
which the Obeids ultimately entered a joint venture) to apply, 1785 information
which was then communicated by Moses Obeid to Mr Brook, then by Mr Brook
to Mr Rampe, on or about “13 January 2009”.1786
The extension of the EOI process

1638 The circumstances surrounding the reopening of the EOI process was the
subject of an interlocutory judgment in which I was satisfied the EOI process
should be treated as a continuous event from 9 September 2008 (when it was
publicly launched) to 16 February 2009 (when the reopened process closed),
notwithstanding that the process was initially closed on 24 November 2008. 1787
1639 It was reopened on 9 January 2009 after a number of companies who had not
been invited to participate in the initial process had approached Mr
Macdonald’s office and/or the DPI indicating their interest in submitting an
application for the grant of an EL in respect of one or some of the eleven small
to medium coal release areas.1788 Dr Sheldrake and Mr Mullard both gave
1783
1784
MFI 134/1 par 3(i).
1785
MFI 134/1 par 8(g), 11(h).
1786
MFI 134/1 p 5.
1787
Exhibit A pp 2887-2888.001; T 2277.
1788
Exhibit A pp 3197-3199; T 2496.
5KIPGFD[#WUV.++
evidence to the effect that the request to reopen the EOI process came from
Mr Macdonald and was not initiated by the DPI.1789
1640 On 21 and 25 November 2008, Mr Mullard sought Mr Fennell’s advice, as the

external probity auditor, concerning reopening the EOI process. 1790 In the letter
of 25 November 2008, Mr Mullard clarified that it was the Minister’s intention
that the EOI process remain restricted to small or medium companies but
opened up to allow more small to medium companies to apply. 1791
1641 On 28 November 2008, in a letter to Mr Mullard, Mr Fennell approved the

reopening of the EOI process.1792 He also reviewed the revised EOI
documentation.1793
1642 On 8 January 2009, a Ministerial Briefing 1794 was prepared by Mr Mullard.1795 It

addressed the following issue:
The initial Expression of Interest (EOI) for 11 coal areas closed on 24

November 2008. Prior to the closure of the EOI process the Minister was
approached by additional small to medium companies that had not been
invited to submit an EOI seeking an invitation to apply. 1796
1643 The Ministerial Briefing recommended that the Minister note that the DPI was
intending to exercise a delegation under the Mining Act to reopen the EOI
process.1797 A list of companies who had requested invitations for the extended
EOI process was prepared by Ms Moloney1798 and included as an annexure to
the Ministerial Briefing:1799
List of companies requesting invitations to apply for the 11 Coal Release Areas
Expression of interest
Mr Paul Page
Director
1789
T 1079, T 2400.
1790
Exhibit A pp 2881, 2883-2884.
1791
T 742, 2110.
1792
1793
1794
1795
T 752-4, 2277.
1796
Exhibit A p 3185.
1797
Exhibit A p 3186.
1798
T 2277.
1799
5KIPGFD[#WUV.++
Arthur Phillip Pty Ltd

GPO Box 2537
SYDNEY NSW 2000
Mr Phil Suriano
Director
Real Brand Holdings
GPO Box 2537
SYDNEY NSW 2000
Mr Robert Crossman
Director
Griffin Coal
GPO Box G474
PERTH Western Australia 6000
Mr John Atkinson
White Energy Company Limited
PO Box 422
NORTH SYDNEY NSW 2059
Mr Neil Whittaker
Amerod Resources Limited
Level 5 Grafton Bond Building
201 Kent Street
SYDNEY NSW 2000
Mr Peter Meers
Chief Executive Officer
Tiaro Coal Limited
131 Macquarie Street
SYDNEY NSW 2000
Mr James McGuigan
5KIPGFD[#WUV.++
Exploration Manager
Redman Mining Pty Ltd
GPO Box 2537
SYDNEY NSW 2000
Mr Richard Poole
Director
Cascade Coal
GPO Box 2537
SYDNEY NSW 2000
Mr A J Lodge
Consulting Mining Engineer
25 Glensanda Way
MINDARIE WA 6030
Mr Alan Hansen
Project Geologist
Resolve Geo Pty Ltd
PO Box 15723
CITY EAST QLD 4002
Mr Osamu Tano
Senior Manager
ITOCHU Mineral & Energy of Australia P/ L
GPO Box 4271
Sydney NSW 2001
Mr Geoff Stewart
GM Business Development
Hillgrove Resources Limited
Level 41 Australia Square Tower
264 – 278 George Street
SYDNEY NSW 2000
5KIPGFD[#WUV.++
Ray Slater
Principal
Ray Slater & Associates P/L
9 Princeton St
KENMORE QLD 4069
1644 On 9 January 2009, the Department formally reopened the EOI process with
Mr Macdonald’s approval.1800
1645 On that day, Mr Mullard sent a letter to Mr Rampe, as he did to other

companies who had lodged an application under the initial EOI process, stating
the following:
Prior to the closure of the original Expression of Interest process the

Government and Department of Primary Industries had been approached by
additional small to medium companies that had not previously contacted the
Department of Primary Industries.
As a result the Government has made a change in policy relating to this
current Coal Release Areas Expression of Interest and has decided to reopen
the Expression of Interest to allow additional small to medium companies who
have written to the Department of Primary Industries or the Minister to lodge
an Expression of Interest for any of these eleven areas. 1801
1646 Mr Mullard’s letter to Mr Rampe outlined the following options available to
applicants in the original EOI process:
(a) maintain their original EOI for competitive evaluation

(b) revise/replace their original EOI with no additional lodgement fee required
(c) recall their original EOI with full refund of lodgement fee. 1802
1647 The letter appointed the closing date for expressions of interest as “12 noon on
Monday 16 February 2009”.1803
1648 Letters of invitation in the same terms were sent to each of the companies
listed in the Ministerial Briefing.1804
1800
T 2501. Monaro Mining NL’s application in respect of the Mount Penny Coal Release Area was su bmitted
on 21 November 2008 (Exhibit A pp 2847-2872, T 1592-1595).
1801
1802
Exhibit A p 3195.
1803
1804
5KIPGFD[#WUV.++
1649 In email correspondence between James McGuigan (with an email signature

bearing the name of the company Arthur Phillip Pty Ltd), John Atkinson (with
an email signature bearing the name of the company White Energy Pty Ltd)
and others on 14 January 2009, James McGuigan outlined the information
contained in the invitation he received from the Department to participate in the
reopened EOI process. By reply email, Mr Atkinson informed James McGuigan
that “White Energy received an identical communication/invitation from the
Department”.1805
1650 On 12 January 2009, in an email to Mr Grigor and other board members of

Monaro Mining NL at 2:50pm, Mr Rampe (having apparently by that date been
made aware of Mr Mullard’s letter of 9 January 2009) advised that the
“Government has decided to re-open the tender process to accommodate
additional players” with “[t]enders [to] close on 16th February”. 1806 Mr Rampe
gave evidence he sent that email shortly after reading the letter from Mr
Mullard in which he was informed that the EOI process had reopened.
Although the letter was sent three days earlier, it appears he did not read it
until 12 January 2009.
1651 In the ensuing correspondence with the Board, Mr Rampe indicated he

expected to hear from Mr Brook in the next few days about the reopening of
the EOI process.
1652 At 6:05pm that day, Mr Brook, who was in India exploring the prospect of the
Jain Group as a potential investor in Monaro Mining NL’s bid for Mount
Penny,1807 indicated in an email to Mr Rampe (copied to Mr Grigor) “I have
some colour surrounding the DPI letter”.1808 He suggested that the matter be
discussed on a conference call.
1653 Mr Brook gave evidence that the reference in his email to having “some colour
surrounding the DPI letter” referred to the fact that he had called Moses Obeid
and asked him whether he (Moses Obeid) knew “anything about” the reopening
1805
1806
1807
Exhibit A p 3227.
1808
Exhibit A p 3229.
5KIPGFD[#WUV.++
and, if not, whether he could “find out”.1809 He said Moses Obeid responded by
saying that “he didn’t know anything about it but he will reach out to his
contacts and try and find out for me and get back to me”.1810
1654 Assuming Moses Obeid was telling him the truth when he said that he was
unaware as at 12 January 2009 that the EOI process had been reopened, Mr
Brook’s evidence undermines proof of the ninth act of misconduct in the sense
that it cannot be the Crown case that Mr Macdonald informed Moses Obeid or
Edward Obeid at any time between 27 November 2008 and 12 January 2009
that the EOI process was to be reopened to allow the “White Group” of
companies to apply. If that was the case, Moses Obeid would have had that
information to impart when Mr Brook made the enquiry of him on 12 January
2009.
1655 The only remaining basis upon which proof of the ninth act of misconduct might
be open, is the alternate basis as particularised, namely that Mr Macdonald
communicated to Edward Obeid or Moses Obeid that the EOI process was or
had been reopened to allow the White Group in.
1656 As I understand the way the Crown puts its case on either of the alternate
bases (that is, that the EOI process either would be or was reopened), it is not
that Mr Macdonald provided the unsolicited information to Edward Obeid and
Moses Obeid that the EOI process was to be reopened because he had asked
that it be done, or that it had been reopened at his request. Rather, the
significance of this act of misconduct is that Mr Macdonald provided what the
Crown submitted was confidential information as to why the EOI process had
reopened (namely to allow the White Group of companies, which included
Cascade Coal P/L, to apply).
1657 According to Mr Brook, within 24 hours of him calling Moses Obeid on 12

January 2009, Moses Obeid told him “either by phone or Skype” that the EOI
process had been reopened to “enable” a “party called the White Group” to “put
1809
T 2933.
1810
T 2934.
5KIPGFD[#WUV.++
in an offer, an expression of interest for the exploration licence over Mount

Penny”.1811
1658 Mr Brook gave evidence that soon after that conversation a conference call
was convened with Mr Grigor and Mr Rampe in which he explained that he had
learned “via the landholders alliance… the party they knew as Voope” that “the
DPI had reopened the expression of interest process for the ELs on Mount
Penny to a party called the White Group”.1812
1659 Sometime in January 2009, Mr Rampe made an undated handwritten file note
of a conference call with Mr Brook.1813 There is a compelling inference the file
note related to the call about which Mr Brook gave evidence. The final bullet
point in Mr Rampe’s file note read “DPI wanted to extend bid time to allow
“White Group””.1814 Mr Rampe gave evidence that information came from Mr
Brook and that it related “to the department's rejig of the expression of interest,
as indicated on their letter of 9 January”.1815 He also gave evidence that at the
time of the phone call, he had not heard of the White Group.1816
1660 Mr Grigor recalled that, either during a phone conference with Mr Brook or on
another occasion around that time, Mr Brook informed him that:
… there were a small number of loyal New South Wales based coal
companies that for some reason, whether it be administrative error, whatever,
didn't get an opportunity, they weren't informed of the bid process and they
weren't invited to attend…
Q. … What did you know or understand to be the connection between those
people or those companies not being invited to tender and the reopening of
the tender, if anything, if those two things are connected in your memory and
understanding?
A. It was a limited tender initially; you had to be invited to attend. 1817
1661 Mr Grigor could not recall with any precision the identity of any of the
companies invited to participate in the extended EOI process beyond the name
“White River”.1818
1811
T 2934-2935.
1812
T 2935.
1813
Exhibit O.
1814
Exhibit O.
1815
T 1611.
1816
T 1609.
1817
T 1848.
1818
T 1860.
5KIPGFD[#WUV.++
Is the ninth act of misconduct established?

1662 Although I am satisfied that the lines of communication enquiring as to the
reason for the reopening of the EOI process discussed above (including an
enquiry Mr Brook made of Moses Obeid) provides the basis for a compelling
inference that the information Moses Obeid relayed to Mr Brook sourced from
Mr Macdonald, several problems attend proof of the ninth act of misconduct as
particularised.
1663 Mr Rampe’s evidence was to the effect that he read the letter from the DPI
advising of the reopening of the DPI on 12 January 2009 and that Mr Brook
made his enquiry of Moses Obeid about the reopened EOI process after being
informed of that development by Mr Rampe. By 6.05pm that day, Mr Brook
indicated to Mr Rampe and Mr Grigor he had information about the reopening
of the EOI process, information which, in his evidence, he said came from
Moses Obeid.1819
1664 Accepting that evidence, there was a very narrow window of opportunity on 12
January 2009 for Mr Macdonald to have provided the information (either
solicited or unsolicited) about the reason for the reopening of the EOI process
to Moses Obeid, in order for Moses Obeid to have relayed that information to
Mr Brook, and finally for Mr Brook to have relayed that information to Mr
Rampe and Mr Grigor.
1665 There is no evidence of email or phone contact between Moses Obeid and Mr
Brook on 12 January 2009.1820 Although Mr Brook gave evidence that Moses
Obeid typically contacted him “either by phone or Skype” to inform him about
the EOI process reopening,1821 the Telephone Summary tendered by the
Crown does not include data as to Skype communication.1822 Furthermore, Mr
Brook had a “UK number” in 2009.1823 The four phones owned and operated by
Mr Brook (data about which is included in the Telephone Summary) were part
of Australian mobile networks and had Australian subscriber addresses. 1824 It
1819
Exhibit A p 3229; T 2934-2935.
1820
Exhibit U p 68.
1821
T 2934.
1822
Exhibit U.
1823
T 2935.
1824
Exhibit U Explanatory Notes p 6.
5KIPGFD[#WUV.++
follows that, as Mr Brook was in India during the relevant period in January
2009,1825 he may have used a mobile phone in his communications with Moses
Obeid at that time which was not included in the Crown’s Telephone Summary.
1666 Even were the necessary communications between Mr Brook and Moses
Obeid on 12 January 2009 established, the evidence as to contact between the
accused on that date presents a separate challenge to proof of the ninth act of
misconduct. On 12 January 2009:
(1) Edward Obeid called Moses Obeid at 6:57am for 30 seconds.

(2) Mr Macdonald called Edward Obeid at 7:10am for 1 minute.
(3) Edward Obeid called Mr Macdonald at 7:11am for 30 seconds.
(4) Edward Obeid left a voicemail for Moses Obeid at 6:08pm for
19 seconds.
(5) Moses Obeid sent Edward Obeid a text message at 7:16pm.1826
1667 Although there is an available inference that Moses Obeid conveyed to Edward
Obeid Mr Brook’s enquiry about the reopening of the EOI process, and that
Edward Obeid had the opportunity to convey that enquiry to Mr Macdonald ((1)
to (3) above), there is no evidence of direct contact between Mr Macdonald
and Moses Obeid and there is no evidence that Edward Obeid could have
conveyed the information the subject of the ninth act of misconduct (having
been provided that information by Mr Macdonald) to Moses Obeid such that he
could have conveyed that information to Mr Brook prior to Mr Brook’s email to
Mr Rampe and Mr Grigor at 6:05pm, Mr Brook’s email preceding that voicemail
message by three minutes.
1668 In those circumstances I am unable to reason confidently to the conclusion that

there was sufficient opportunity for information as to why the EOI process was
reopened to travel along the line of communication contended for by the
Crown. In the result, I am not satisfied that the ninth act of misconduct, as
particularised, is established.
1825
Exhibit Z; T 2925.
1826
Exhibit Q p 68.
5KIPGFD[#WUV.++
1669 Having found that the ninth act of misconduct as particularised by the Crown is
not established, the question whether it constituted a breach of Mr Macdonald’s
duties and obligations of confidentiality and impartiality do not arise.
1670 The evidence adduced in support of the ninth act of misconduct remains
significant in proof of the Crown case. It provides the context in which Moses
Obeid commenced negotiations with Cascade Coal P/L in circumstances
where, to that point, he had doggedly pursued a joint venture with Monaro
Mining NL, the company Mr Brook had identified as the most viable corporate
candidate for a mining deal with the Obeid family and the company Moses
Obeid had the gathering expectation would be awarded the EL for Mount
Penny having utilised confidential information provided by Mr Macdonald in
breach of his Ministerial duties and obligations to advance that prospect,
including, perhaps most significantly, the uses to which Mr Brook sought to put
the information the subject of the eighth act of misconduct.
1671 Moses Obeid’s direct approach to Cascade Coal P/L in 2009 was not made
solely in the context of the EOI process reopening, but in circumstances where
it had become increasingly clear that Mr Brook had failed to attract investors,
with the result that Monaro Mining NL would be unable to meet its obligations
to pay the Additional Financial Contribution of $25 million in accordance with
the EOI criteria, were it the preferred applicant for the grant of an EL at Mount
Penny.
Monaro Mining NL’s Additional Financial Contribution (AFC)

1672 The Mount Penny Coal Allocation Area was, by reason of its size, location and
potential coal resource, a “small area unrelated to existing mines”, within the
fourth subcategory under the Coal Allocation Guidelines.1827 The Coal
Allocation Guidelines provided indicative financial contributions referable to the
type (open cut or underground), quality (export or domestic) and size of coal
deposit.1828
1673 The EOI Information Package publicly released on 9 September 2008

replicated the indicative financial contributions in the Coal Allocation
1827
Exhibit A p. 692.003.
1828
Exhibit A p 58.
5KIPGFD[#WUV.++
Guidelines, specifying the requirements for a “one off payment by the

successful applicant/s”1829 for each of the eleven small to medium coal
allocation areas the subject of the EOI process.1830 A minimum financial
contribution of $1 million was indicated for the Mount Penny Coal Release Area
as a contribution to the Department’s Coal Development Fund. It was required
to be paid within 30 days of the Minister granting consent to apply for a new
EL.1831
1674 The EOI Information Package also included the evaluation process and the
role of the Evaluation Committee in that process:
The Director-General of the Department of Primary Industries will make

recommendations to the Minister in relation to the awarding of exploration
licences following completion of the evaluation process for the eleven (11)
release areas.
The Department of Primary Industries will establish an evaluation team from
experts on its staff and elsewhere in government. The team will evaluate the
Expressions of Interest using a consistent process approved by an
independent probity auditor. The auditor will review compliance of the
evaluation process by the evaluation team prior to the submission of
recommendations to the Director-General. This process will ensure the highest
levels of consistency, fairness and probity are achieved.1832
1675 The Evaluation Committee was comprised of Mr William Hughes, Ms Julie
Moloney and Mr Ado Zanella. There is some opacity in the evidence about the
precise process by which the Evaluation Committee was appointed. Mr Kevin
Fennell was the appointed External Probity Officer.
1676 The EOI Information Package also provided that the “evaluation team’s
assessment will be based on the Evaluation Criteria”.1833 The “Evaluation
Criteria” were identified under the following subheadings:
(1) Exploration, Mine Development, Infrastructure and Financial

Contribution
(2) Overall Benefits
(3) Programs of Work
(4) Indicative Timeframe
1829
Exhibit A p 2002.
1830
Exhibit A p 2004.
1831
Exhibit A p 2002.
1832
Exhibit A p 2000.
1833
Exhibit A p 2000.
5KIPGFD[#WUV.++
(5) Technical Competence

(6) Financial Qualifications
(7) Other1834
1677 In reference to “Financial Contributions”, the Information Package provided that
in addition to the “one off” financial contribution the successful applicant was
required to pay ($1 million for Mount Penny), “applicants may nominate
additional financial contributions”.1835 Mr Hughes gave evidence that AFCs
were “one of the more important” criteria the Evaluation Committee
considered.1836
1678 Monaro Mining NL’s application for the Mount Penny Coal Release Area on 13
February 2009 included the following costs to be paid “upon granting of
consent”:1837
Assessment Fee $10,000

EL Application Fee $51,000
Security Bond $10,000
DPI Development Fund $1,000,000
Added Financial Contribution $25,000,000
Total $26,071,000
1679 The application went on to note:
The financial obligation upon the granting of development approval for any
future mine proposal cannot be determined at this stage. However, the
Company and its partners are aware of the provisions of Clause 8 of the
tender information provided by the Department of Primary Industries. 1838
1680 The application also stated that Monaro Mining NL relied on an executed
Memorandum of Understanding with Tianci Inc, described as “a large industrial
energy end-user” located in China, for funding, together with “strong support”
from Far East Capital Limited and BGF Capital Group Limited who, it was
stated, would “provide funding if necessary”.1839
1834
1835
Exhibit A p 2001.
1836
T 2127.
1837
Exhibit A p 2871.
1838
Exhibit A p 2871.
1839
Exhibit A p 2871.
5KIPGFD[#WUV.++
1681 How the figure of $25 million was arrived at for the AFC was the subject of
limited evidence in the trial, including whether it was an ambit offer or a figure
conscientiously calculated by Mr Rampe or Mr Grigor with the knowledge and
approval of the Monaro Mining NL Board. Mr Bowman gave evidence he
advised Mr Grigor that an AFC of $20 million “would win” the Mount Penny EL
for Monaro Mining NL.1840 He did not give evidence as to how the final figure of
$25 million was reached.
1682 Mr Brook gave evidence that either Mr Grigor or Mr Rampe sought his advice
as to the quantum of the AFC which should be offered but which he was
unable to provide. Mr Brook gave the following evidence as to how the figure of
$25 million was fixed:
My recollection is there was further conversation about the financial

contribution and it was either Mr Rampe or Mr Grigor were basing their
numbers, to my recollection, on a precedent set by a mine or a resource called
Watermark that had transpired in the previous, I think, 18 to 24 months and
they were basing their numbers on what occurred in that transaction and that
was not a transaction to which I was familiar.1841
1683 In cross-examination, Mr Rampe gave the following evidence:
Q. Did Mr Brook provide you with any advice as to the amount of the additional
financial contribution that was offered in respect of Mount Penny, namely
$25 million?
A. I’m not sure that came from him anyway… My recollection is that the
Government issued a number of… principles for which included contributions
to be made, whether it was fees or rents or contributions, and that larger
contribution was based on our understanding of what the project might be
worth after it was developed or during the course of its being developed.1842
1684 As to Monaro Mining NL’s capacity to pay the AFC, Mr Grigor gave evidence
he was satisfied the Monaro Mining NL was capable of raising the $25 million,
albeit over time.1843 Mr Brook gave evidence he “expressed confidence” to Mr
Grigor that he “could raise money”, and that he expressed the same level of
confidence to Moses Obeid and Paul Obeid.1844
1685 Mr Rampe gave the following evidence:
1840
T 1434.
1841
T 2924.
1842
T 1721-1722.
1843
T 1912.
1844
T 3183.
5KIPGFD[#WUV.++
Q. Did you have any understanding with Mr Brook as to whether it was part of
his role to try and find finance for the project, including the additional financial
contribution?
A. Correct, yes.
Q. But he failed, did he not?
A. Yes.
Q. He initially, did he not, represented to you that he could raise some money
from Lehman Brothers?
A. Correct.
Q. And that failed, correct?
A. Correct.
Q. Did he then say he could get some money from the Chinese?
A. Correct.
Q. And he went off to China, correct?
A. Correct.
Q. That failed, correct?
A. Correct.
Q. And did he say he could do a joint venture in India?
A. Correct.
Q. And that failed?
A. Correct.
Q. And he came up empty-handed every time, correct?
A. Correct.
Q. Did you form a view, after he had come up empty-handed every time, that
he had misled you from time to time?
A. Perhaps he was a supreme optimist.1845
1686 That evidence does not provide a satisfactory answer to the question why
Monaro Mining NL’s AFC for Mount Penny was so large, particularly taking into
consideration the fact that its offer was well in excess of the AFCs it nominated
for other small to medium coal release areas in relation to which it also
submitted EOI applications.
1687 Monaro Mining NL was recommended by the Evaluation Committee as the

preferred applicant for the allocation of Yarrawa, Long Mountain and Ben
Bullen, together with Mount Penny.1846 Monaro Mining NL nominated AFCs in
respect of those areas in the following terms:
1845
T 1721-1722.
1846
Exhibit A pp 4359, 4364, 4368.
5KIPGFD[#WUV.++
(1) In respect of Yarrawa, a minimum financial contribution of $150,000 was

required to be paid by the successful applicant.1847 Monaro Mining NL’s
EOI application provided for an AFC in the amount of $2 million.1848
(2) In respect of Long Mountain, a minimum financial contribution of
$100,000 was required to be paid by the successful applicant.1849
Monaro Mining NL’s EOI application provided for an AFC in the amount
of $300,000.1850
(3) In respect of Ben Bullen, a minimum financial contribution of $300,000
was required to be paid by the successful applicant.1851 Monaro Mining
NL’s EOI application provided for an AFC in the amount of $150,000.1852
1688 When that evidence is considered, it is clear beyond question that the AFC of
$25 million nominated by Monaro Mining NL for the Mount Penny Coal
Allocation Area is anomalous, being 25 times the minimum financial
contribution of $1 million nominated for that area.
Cascade Coal P/L submits an application for Mount Penny in the reopened EOI
process
1689 As noted earlier, the initial EOI process closed on 24 November 2008 1853 but
reopened on 9 January 2009 1854 with 16 February 2009 specified as the new
closing date.1855
1690 On 13 February 2009, Monaro Mining NL confirmed it relied upon its

application for “Mount Penny” as previously submitted which included the $25
million AFC.1856
1691 On 16 February 2009, Cascade Coal P/L submitted an application for the grant
of an EL at Mount Penny.1857 It confirmed its preparedness to pay the Minimum
Financial Contribution of $1 million. As concerns an AFC, Cascade Coal P/L’s
application read as follows:
In addition to the above financial obligations once the relevant mine

development plans have been determined the proponent will commit to
1847
Exhibit A p 2002.
1848
Exhibit A p 4359.
1849
Exhibit A p 2002.
1850
Exhibit A p 4364.
1851
Exhibit A p 2002.
1852
Exhibit A p 4368.
1853
1854
Exhibit A p 3195.
1855
1856
Exhibit A p 3401.
1857
5KIPGFD[#WUV.++
negotiate with the government in relation to an additional contribution which

will be dependent on the scale and scope of the resource and mine
development. These negotiations would be in accordance with the
Departments “Guidelines for Allocation of Future Coal Exploration Areas” as
described in Table 2 of the EOI Information Package. 1858
1692 As with the initial EOI process, the DPI published the applicants for each of the
eleven areas. The applicants for Mount Penny were Monaro Mining NL, the
Jain Group, Cascade Coal P/L and Breaksphere Coal Mines P/L. 1859
1693 The Evaluation Committee did not convene prior to the conclusion of the
extended EOI process.1860
Post-conspiracy period
1694 It is the Crown case that although the object of the conspiracy had been
fulfilled by 31 January 2009 as framed in the indictment, Mr Brook’s dealings
with members of the Obeid family and Monaro Mining NL continued after that
time.
1695 On 13 March 2009, in an email to Mr Rampe, Mr Brook advised that Monaro

Mining NL should write to the Department to request that, should Monaro
Mining NL be successful in respect of its bid for Mount Penny, the EL should
be issued to Monaro Coal P/L.1861 Mr Brook gave evidence that a “cleanskin
SPV vehicle under the name of Monaro Coal” would be a more appropriate
entity to hold any EL that might be granted to Monaro Mining NL in order to
ensure the corporate integrity of that entity and avoid “legacy problems or
activities” associated with Monaro Mining NL.1862
1696 On 25 March 2009, Mr Brook forwarded to Moses Obeid an email sent to him
by Mr Rampe which contained drill hole data for the Mount Penny Coal
Release Area.1863 Mr Rampe’s email was responsive to a request from Mr
Brook for that information. Mr Brook gave evidence that he provided that
1858
Exhibit A p 3441.
1859
Exhibit A p 3497.
1860
T 757.
1861
Exhibit A p 3611.
1862
T 2939.
1863
5KIPGFD[#WUV.++
information to Moses Obeid because he had asked Mr Brook if he “could ask

Monaro if they had such data”.1864
1697 On 29 April 2009, at a Monaro Mining NL directors meeting, Mr Grigor was

removed as Chairman. He immediately resigned as Director. 1865
1698 According to the minutes of the directors meeting,1866 Mr Grigor’s removal as

Chairman occurred in the context of discussion by the directors as to the issue
of capital raising. Mr Grigor reported that he was not confident that Mr Brook
could complete the necessary capital raising to meet “the DPI licence fees” and
that, on that basis, the Board could not leave the solvency and fate of Monaro
Mining NL in Mr Brook’s hands. Mr Grigor also expressed the view that Monaro
Mining NL needed to urgently raise funds and could not act on the assumption
that the coal ELs would be granted. Shortly thereafter, Mr Malone proposed
that Mr Grigor be removed as Chairman because, inter alia, he (Mr Malone)
had not been “kept properly informed on the coal issues throughout the
process by Mr Grigor and Mr Rampe”.1867
1699 Mr Brook gave evidence that he learnt of Mr Grigor’s removal as Chairman via
an alert on Reuters or Bloomberg while he was in London. He immediately
contacted Moses Obeid and said “Warwick’s been axed” to which Moses Obeid
replied with “an expletive… and we both expressed concern”.1868
Moses Obeid meets with representatives of Cascade Coal P/L
1700 On Mr Brook’s return to Australia, he met with Moses Obeid who informed him
that he had “met the people from Cascade Coal”.1869 Mr Brook said that Moses
Obeid named Travers Duncan, John McGuigan and Brian Flannery in that
connection. He said Moses Obeid described them as “billionaires” who are
“experts in coal”.1870 It is clear from other evidence that by 20 May 2009 Moses
Obeid already knew John McGuigan (who had been appointed as a director of
1864
T 2941.
1865
1866
1867
Exhibit A p 3655.
1868
T 2943.
1869
T 2943.
1870
T 2944.
5KIPGFD[#WUV.++
Cascade Coal P/L on 19 February 2009 1871) with whom he had discussed an
unrelated venture.1872 Mr Brook gave evidence Moses Obeid told him “he had
already spoken with them, he was dealing with Mr Brian Flannery directly and
that they had pretty much nailed out the broad terms of their participation at the
mining level on a potential resource at Mount Penny” and had “in principle
agreed” to a “25/75” or “30/70” split.1873
1701 Mr Brook gave evidence that he was “pleased” that Moses Obeid had “found
[in Cascade Coal P/L] a financial partner with substance”, especially as Moses
Obeid knew that Monaro Mining NL, “despite [Mr Brook’s] efforts, did not have
the financial capacity”,1874 and that with Mr Grigor’s removal as Chairman,
there was concern about Monaro Mining NL’s ongoing viability as a joint
venture partner. Mr Brook said Moses Obeid instructed him to “speak to”
Monaro Mining NL and “see if they were willing to assign their EOI at the DPI to
an entity that we could control or we could buy that entity”.1875 Mr Brook also
said that Moses Obeid wanted him to act for his family and that, under that
instruction, he undertook to “speak to the Monaro directors immediately”.1876
The Evaluation Committee identifies an ambiguity in Monaro Mining NL’s

application
1702 Meanwhile, on 29 April 2009, in an email to Mr Fennell, Mr Hughes indicated
that the Evaluation Committee had met on 28 and 29 April 2009 and had
completed its evaluation. Mr Hughes indicated he would prepare the report and
recommendations for 12 May 2009.1877
1703 That process was interrupted by the Evaluation Committee’s detection of what
was described in the evidence as an ambiguity in Monaro Mining NL’s
application for Mount Penny with respect to the timing for the payment of the
AFC of $25 million.
1871
Exhibit C.
1872
Exhibit A p 3789.
1873
T 2944.
1874
T 2944.
1875
T2944.
1876
T 2945.
1877
Exhibit A p 3661.
5KIPGFD[#WUV.++
1704 On 14 May 2009, the Evaluation Committee was convened.1878 Mr Hughes

gave evidence that during that meeting, the Evaluation Committee identified
that “ambiguity” which he described in the following terms:
Well, the ambiguity was we weren’t sure whether the words “upon granting of
consent” meant upon the invitation to apply for the exploration licence as
outlined in the booklet or whether they meant on grant of consent of the
exploration licence itself.1879
1705 Mr Hughes’ understanding of the “ambiguity” is reflected in Mr Fennell’s
handwritten file note of the 14 May 2009 meeting 1880 which reads relevantly as
follows:
One problem with Monaro was discussed with Brad Mullard and Richard
[Sheldrake] (CEO). Monaro claims to Will [Mr Hughes] that they assume that
payment time for additional financial contributions can be negotiated with Govt
– not so. The EOI document does not allow for any negotiation. It requires
payment within 30 days of the award of a license [sic].
Brad [Mullard] and Richard [Sheldrake] agreed that the offers should go out as
recommended by the Panel. Should Monaro renege on any of their 6
recommended areas, then Panel can reconvene and if appropriate,
recommend the next ranked company.1881
1706 Mr Fennell gave evidence that the “ambiguity” was raised and discussed at the
14 May 2009 meeting as recorded in his handwritten note.
1707 Also on 14 May 2009, Mr Rampe sent an email to Mr Hughes stating Monaro
Mining NL had assumed “that the added financial contribution of $25 million
would be paid to the Government over a negotiated time frame”. 1882 Later that
afternoon Mr Rampe advised the Board that he had been asked to attend a
meeting with the DPI on 21 May 2009.1883
1708 Mr Brook confirmed that, around that time, he became aware “that there was at
least some difference of views between Monaro and the DPI as to when the
additional financial contribution would be payable”.1884
1709 After the Evaluation Committee’s meeting on 14 May 2009, Mr Hughes created
a draft report entitled “Coal Release Areas Evaluation of Expressions of
1878
Exhibit R.
1879
T 2128.
1880
Exhibit R.
1881
Exhibit R; Exhibit A p 3713.
1882
1883
1884
T 3213.
5KIPGFD[#WUV.++
Interest” marked “confidential” and dated “May 2009”.1885 The draft report
stated the following:
An evaluation team from experts on the staff of the Department of Primary

Industries and elsewhere in government has evaluated the EOI’s according to
evaluation criteria specified in the Coal Release Areas EOI Information
booklet, and using a consistent process approved by an independent probity
auditor.
The Evaluation Team has examined the EOI’s in detail and has reached clear
conclusions and recommendations in the presence of the independent probity
auditor on 14 May 2009.1886
1710 The draft report indicated that of the four EOIs submitted in relation to Mount
Penny, Monaro Mining NL’s submission was considered by the Evaluation
Committee to be “far superior”.1887 The draft report noted that the AFC of
$25 million by Monaro Mining NL in relation to Mount Penny “far exceeded
those of other EOI proposals”.1888
1711 The draft report recommended that “the Minister for Mineral Resources selects
the above mentioned companies [including, relevantly, Monaro Mining NL in
relation to Mount Penny] as the successful EOI applicants for the awarding of
new Exploration Licences over the coal release areas for which they lodged a
successful EOI”.1889
1712 The draft report did not mention the ambiguity detected by the Evaluation
Committee in Monaro Mining NL’s application. The AFC nominated by Monaro
Mining NL was described as being payable “on grant of an Exploration
Licence”.1890
1713 On 15 May 2009 Mr Fennell issued further probity advice to Mr Hughes. 1891 Mr
Fennell advised:
[T]he Evaluation Team followed approved procedures in its treatment of each

expression of interest for the Various Coal Exploration Areas. Again, in my
opinion each of the proponent’s [sic] submission was treated in a fair,
1885
Exhibit A pp 3663-3686.002.
1886
Exhibit A p 3667.
1887
Exhibit A p 3681.
1888
Exhibit A p 3681.
1889
Exhibit A p 3667.
1890
Exhibit A p 3681.
1891
5KIPGFD[#WUV.++
equitable and impartial manner before the framing of the Team’s report and
recommendation.1892
1714 Mr Mullard gave evidence that after the Evaluation Committee generated its
draft report, the Committee raised with him “an ambiguity” in Monaro Mining
NL’s EOI application1893 relating to “the timing of payment of the additional
financial contribution”.1894 In particular, Mr Mullard recalled Mr Hughes telling
him that Monaro Mining NL’s AFC “which is beyond the minimum … could be
paid over a period of time”, not within “30 days of the part transfer for the
release area”.1895
1715 Mr Mullard explained that the task then fell to the Evaluation Committee,
deploying his advice, to “assess” whether Monaro Mining NL’s bid was
“compliant… in the sense they hadn’t committed to paying the moneys within
30 days” as required in the EOI Process Information Package issued to
Monaro Mining NL in September 2008.1896
1716 On 21 May 2009, a meeting was held at the DPI attended by Mr Mullard, Mr
Hughes, Mr Rampe (and possibly Mr Brook, though none of the other
attendees recalled his presence at that meeting).1897
1717 Mr Mullard gave evidence that the DPI “clarified” with Mr Rampe that the AFC
would need to be paid within 30 days of granting consent and that the DPI
needed Mr Rampe to confirm whether or not that was to be the case as soon
as possible because otherwise its tender may prove to be “noncompliant”.1898
1718 Mr Hughes did not have a clear recall of this meeting but said the meeting
would have been held to reinforce or restate the need for compliance with the
EOI process. He gave further evidence that neither he nor Mr Mullard told Mr
Rampe (or anyone else) where the Evaluation Committee had ranked the
applications (including for Mount Penny) and confirmed that it would have been
1892
Exhibit A p 3716.
1893
T 758.
1894
T 759.
1895
T 760.
1896
T 760.
1897
Exhibit A p 3787.
1898
T 763.
5KIPGFD[#WUV.++
“quite wrong” to have revealed the Evaluation Committee’s consideration of the

ranking of competitive tenders.1899
1719 After the meeting with the DPI,1900 Mr Rampe emailed Mr Brook:
We need to nominate which projects we want to run with on the basis that all
fees are paid in one lump sum… they want to be convinced we are serious
contenders… If we say yes, we will get an official letter shortly thereafter
inviting us to apply for a licence over the relevant area. The letter will advise us
that we have 30 days to put up the cash.1901
Monaro Mining NL abandons its application
1720 On 22 May 2009, during the monthly Board meeting, the Board of Monaro
Mining NL resolved to abandon the New South Wales Coal project, 1902
contingent upon Voope P/L outlining a “satisfactory mechanism for transferring
any licences that may be awarded away from Monaro Mining”. 1903
1721 Mr Rampe recalled participating in negotiations with Voope P/L, via Mr Brook,
including that, as recorded in the minute of the 22 May 2009 directors meeting,
that Voope P/L was to “reimburse Monaro’s expenses should it [Monaro Coal
P/L] be successful in securing a coal licence”.1904
1722 A series of significant meetings were convened, variously attended by Mr

Brook, Moses Obeid (and his brother), Mr Rampe on behalf of Monaro Mining
NL, and the McGuigans on behalf of Cascade Coal P/L.
The Swissôtel Meeting

1723 Mr Brook recalled a meeting held with Mr Rampe at the Swissôtel. Mr Brook
explained that this meeting was “fairly significant”1905 and took place under
“reasonably unusual circumstances” because “Moses and Paul Obeid wanted
to observe me meeting with Mr Rampe so they sat within eyeshot, not earshot”
in the lobby.1906 He said that the Obeids met with him prior to Mr Rampe’s
arrival. Moses Obeid instructed him to make an “offer of compensation” to
Monaro Mining NL which could comprise either transferring the shares in
1899
T 2132.
1900
T 1632.
1901
Exhibit A p 3757.
1902
Exhibit A p 3793.
1903
Exhibit A p 3793.
1904
Exhibit A p 3793.
1905
T 2945.
1906
T 2946.
5KIPGFD[#WUV.++
Monaro Coal P/L or agreeing to sell the shares. Mr Brook understood he was
to make it clear that Voope P/L was willing to compensate them for the costs
they had incurred in applying for the EL at Mount Penny.1907
1724 Mr Brook gave evidence that he conveyed the offer of compensation in those
terms to Mr Rampe, which he was “pleased” to hear.1908 Mr Brook and Mr
Rampe discussed the fact that “nothing could happen without the consent of
the DPI”, so Mr Rampe indicated that he would “reach out” to the
Department.1909
1725 Ultimately, after ongoing negotiations with Voope P/L including Monaro Coal
P/L’s name change notionally to Royal Coal Pty Ltd, then Loyal Coal Pty Ltd
(Loyal Coal P/L),1910 on 9 June 2009, Mr Brook wrote to Mr Hughes on behalf
of Loyal Coal P/L formally withdrawing Loyal Coal P/L’s application for the
granting of an EL at Mount Penny, Glendon Brook and Spur Hill. 1911
1726 In cross-examination, Mr Brook gave the following evidence about that

company’s withdrawal:
Cascade knew we were going to pull out. I need to be clear about that. I didn't
tell Monaro but Cascade knew that we would pull out. That if we got control of
the Monaro expression of interest, that a condition of the Cascade/Buffalo
transaction was that we would pull out and we would notify the DPI. So
Cascade were aware… That was the basis to which we were meeting with
Cascade in the first place, that we would - that we would want - we
wanted - myself and the Obeids wanted to do a deal with Cascade and we had
to get control of the bid. And so Cascade were aware that we were going to
get control of the bid.1912
1727 The Mount Penny EL was ultimately granted to Mt Penny Coal P/L, a wholly
owned subsidiary of Cascade Coal P/L, on 21 October 2009. 1913 That evidence
is set out at par 1754 and following below.
1907
T 2946.
1908
T 2947.
1909
T 2947.
1910
T 2967.
1911
Exhibit A p 4155.
1912
T 3225.
1913
5KIPGFD[#WUV.++
Were there further meetings between Mr Brook and Mr Rampe?

1728 Mr Brook gave evidence that another meeting could have occurred “before or
after” the Swissôtel meeting, or indeed that it “may have been that
conversation at the Swissôtel”.1914
1729 At the meeting so described by Mr Brook, Mr Brook explained to Mr Rampe

that the landowners represented by Voope P/L still wanted to pursue the grant
of an EL at Mount Penny and that Monaro Mining NL wanted to “withdraw any
further participation or any further endeavours to achieve an exploration
licence”.1915 Mr Brook confirmed he had been unsuccessful in raising any
money or finding a strategic partner1916 and that he discussed with Mr Rampe
the mechanism for Voope P/L to preserve its interest in the “Mt Penny project”,
namely by taking over the bid which Mr Rampe made clear would have to be
approved by the DPI It was agreed that an approach would be made to the DPI
to see if that would be possible.1917
The first Cascade Coal P/L meeting

1730 On 18 or 19 May 2009,1918 Mr Brook was introduced by Moses Obeid to John
McGuigan and James McGuigan. Mr Brook gave evidence that “immediately
before” the meeting commenced, Moses Obeid told him that he wanted him to
negotiate the terms of the 25/75 or 30/70 split “to make sure” that the Obeids’
“interests were preserved in the joint venture agreement” with Cascade Coal
P/L.1919
1731 At the meeting, Mr Brook represented, falsely, that he would be working with
Monaro Mining NL as he had had “an element of success” in finding them a
financial partner.1920 Mr Brook also gave evidence that he represented, also
falsely, that he had arranged a financial partner who was poised to support
Monaro Mining NL’s bid, although for obvious reasons, since there was no
partner, he did not disclose its identity. He also represented that he would also
1914
T 2946.
1915
T 2945.
1916
T 2945.
1917
T 2945-6.
1918
T 2970.
1919
T 2971.
1920
T 2971.
5KIPGFD[#WUV.++
be representing the interests of Voope P/L, who would prefer to deal with
Cascade Coal P/L than with Monaro Mining NL because, as he explained it,
“from a potential suitor perspective”, Voope P/L preferred to work with a
domestic company as opposed to a “foreign investor”, a necessary element of
an arrangement with Monaro Mining NL.1921
1732 Mr Brook also represented that Voope P/L was prepared to offer Cascade Coal
P/L the land that comprised the Mount Penny Coal Exploration Area in return
for which it would expect a percentage of the future mining operation. Mr Brook
gave evidence that John McGuigan took notes of the matters under discussion,
which, in addition to those outlined above, included whether contributing equity
or free carried equity would be embraced by the deal on the basis of a potential
100Mt coal resource.
1733 As noted earlier, as these negotiations progressed Monaro Mining NL was in

the process of clarifying the AFC ambiguity with the DPI, the resolution of
which would dictate whether its application for the grant of the EL at Mount
Penny was compliant.
The second Cascade Coal P/L meeting

1734 Around 23 May 2009, a second meeting was convened, attended by Moses
Obeid, Mr Brook and John and James McGuigan.1922
1735 Mr Brook gave evidence that at the end of that meeting it was agreed that he
would orchestrate the withdrawal of Monaro Mining NL’s application for the
Mount Penny EL.1923
1736 On 29 May 2009, in an email to Mr Brook copied to Moses Obeid, Mr Sindone

provided a draft Deed of Release between Monaro Mining NL and Voope P/L
dated June 2009.1924 Moses Obeid forwarded that document to John
McGuigan.1925 Under the Deed of Release, Voope P/L and Monaro Mining NL
1921
T 2971-2.
1922
T 2975.
1923
T 2977.
1924
Exhibit A p 3853.
1925
Exhibit A p 3863.
5KIPGFD[#WUV.++
mutually agreed to release each other from their obligations under the Share
Option Deed (as varied).1926
1737 On 1 June 2009, the Deed of Release was partially executed between Monaro
Mining NL and Voope P/L 1927 and the name of Monaro Coal P/L was changed
to Loyal Coal P/L.1928
The third Cascade Coal P/L meeting

1738 Also on 1 June 2009,1929 a third meeting was convened, also attended by
Moses Obeid, Mr Brook, and John and James McGuigan. It is the Crown case
that, at or after this meeting, John McGuigan drafted a document titled “Key
principles”1930 which outlined the broad terms of an agreement under which
Cascade Coal P/L would acquire land from “the landowners” at a premium
under a proposed “Landowners Agreement” in a joint mining venture. 1931
1739 After the meeting, Mr Brook emailed James McGuigan to provide an email
address to which Mr McGuigan could send the first draft of the joint mining
agreement between the Obeid family and Cascade Coal P/L. 1932 He also
outlined in the email what had transpired in the interim, namely, the steps he
had taken to orchestrate the withdrawal of Monaro Mining NL’s bid for the
Mount Penny EL.
1740 On that day, Moses Obeid and Mr Brook were in telephone contact at 7:50am
(SMS) and 7:59am. Moses Obeid and Edward Obeid were in contact at
8:08am and 8:34am. Then Mr Brook and Moses Obeid were in contact at
8:59am (SMS), 9:55am, 10:14am (SMS) and 10:34am. Subsequently, Moses
Obeid and Edward Obeid were in contact at 12:37pm and 1:50pm. 1933 The
strong inference is that these communications concerned the currency of
negotiations with Cascade Coal P/L.
1926
Exhibit A p 3876.
1927
1928
Exhibit A p 3925.
1929
Exhibit A p 3907.
1930
1931
Exhibit A p 3883.
1932
Exhibit A p 3907.
1933
Exhibit U.
5KIPGFD[#WUV.++
1741 On 2 June 2009, an email exchange between Moses Obeid and James
McGuigan, into which Mr Brook and others were copied, Buffalo Resources P/L
was nominated as the entity to be used for the forthcoming joint venture. 1934 Mr
Brook gave evidence that he and Moses Obeid discussed the incorporation of
a new entity to enter into the agreement with Cascade Coal P/L on the basis
that once Voope P/L had control of Monaro Mining NL’s (Loyal Coal P/L’s)
application for the Mount Penny EL, they would withdraw the application and
that “the cleanskin SPV” would be the entity who would contract with Cascade
Coal P/L in the proposed joint venture.1935
1742 Together with Mr Brook, Mr Kaidbay and Mr Sindone were appointed Directors
of Buffalo Resources P/L upon its registration on 3 June 2009. Eighty-eight of
the 100 issued shares were held by Equitexx P/L (as Trustee for the Obeid
Family Trust No 2). The balance of the shares was held by Mr Brook’s
company, Warbie Pty Limited (Warbie P/L). Mr Brook gave evidence that he
became a Director of Buffalo Resources P/L at the request of Moses Obeid
and on the understanding that, in his capacity as Director, he would continue to
“take instructions” from Moses Obeid.1936 He also gave evidence that Moses
Obeid nominated that he would be given a 12% entitlement “of the Buffalo
Resources share in the joint venture with Cascade Coal”.1937
1743 James McGuigan’s return email to Moses Obeid on the same day at 3:09pm
attached the Draft Letter of Agreement between Cascade Coal P/L and the
landowners, named as UPG P/L (the putative owner of Cherrydale Park),
Geble P/L (the owner of Donola), Coopers World P/L (the owner of Coggan
Creek, as written) and a Letter of Agreement between Cascade Coal P/L and
Buffalo Resources P/L (the Joint Venture agreement). I note that the name of
Coopers World P/L was changed to Justin Kennedy Lewis P/L on 10
November 2008.1938
1744 Moses Obeid and Mr Brook were then in telephone contact at 3:26pm, 3:32pm
and 4:52pm. Moses Obeid then contacted Edward Obeid at 5:08pm; on the
1934
1935
T 2981.
1936
T 2981.
1937
T 2990.
1938
Exhibit A p 2769.
5KIPGFD[#WUV.++
Crown case, to update him on the negotiations with Cascade Coal P/L.
Mr Brook contacted Moses Obeid at 5:14pm. Edward Obeid contacted Mr
Macdonald at 5:34pm;1939 on the Crown case, providing an opportunity to
update Mr Macdonald as the negotiations with Cascade Coal P/L progressed.
1745 On 5 June 2009, a Letter of Joint Venture Agreement1940 between Cascade

Coal P/L and Buffalo Resources P/L was executed by Mr Brook (as Director of
Buffalo Resources P/L1941) and John McGuigan (as Director of Cascade Coal
P/L1942) setting out the terms of a joint venture between the two companies for
the purpose of “exploring and developing the Mount Penny Coal Release
Area”.1943
1746 As noted earlier, the agreement required that related parties of Buffalo
Resources P/L (including Mr Brook and Loyal Coal P/L) withdraw existing
applications over the Mount Penny Coal Release Area, in exchange for which,
subject to the grant of the Mount Penny EL to Cascade Coal P/L or an affiliate
company, Cascade Coal P/L agreed to vest 100% of its interest in the Mount
Penny EL in the Joint Venture between Cascade Coal P/L and Buffalo
Resources P/L. This ultimately occurred via the company Mt Penny Coal P/L
which was intended to be the incorporated joint venture company contemplated
in that letter. Cascade Coal P/L also agreed to grant Buffalo Resources P/L a
25% interest in the joint venture. The JV Agreement expressly contemplated
the exploitation of the “contiguous area”.1944
1747 Pursuant to a Bare Trust Deed dated 5 June 2009, Buffalo Resources P/L (the
Trustee) agreed to hold any interest it acquired in the Joint Venture with
Cascade Coal P/L for the beneficiaries Warbie P/L (12% share) and Equitexx
P/L (88% share).1945
1939
Exhibit U p 91.
1940
1941
Exhibit C.
1942
Exhibit C.
1943
Exhibit A p 4131.
1944
1945
5KIPGFD[#WUV.++
1748 Also on 5 June 2009, the Landowners Letter of Agreement1946 was signed by
John McGuigan on behalf of Cascade Coal, Mr Kaidbay on behalf of UPG P/L
(ostensibly as the owner of Cherrydale Park), Mr Campo on behalf of Geble
P/L (owner of Donola), and Mr Lewis on behalf of Justin Kennedy Lewis P/L
(owner of Coggan Creek). Mr Brook was not involved in negotiating this
document. The evidence indicates it was negotiated by Moses Obeid with the
Cascade Coal P/L representatives.
1749 The Landowners Agreement provided that subject to the grant of the Mount
Penny EL, Cascade Coal P/L would purchase the three properties for four
times their value, based upon the respective improved value of each property
as at 1 June 2009. This was the subject of a detailed Put and Call Agreement
in November 2009.
1750 On 9 June 2009, Mr Brook emailed Mr Hughes at the Department requesting

that the Loyal Coal P/L’s application for the EL at Mount Penny be withdrawn.
The email attached an unsigned letter “for and on behalf of” Loyal Coal P/L. On
the same day, Mr Brook forwarded a copy of that letter to Cascade Coal P/L’s
directors stating “please see below and attached withdrawal in accordance with
our agreement”.1947
1751 On 10 June 2009, Mr Brook emailed Mr Hughes at the DPI, copying Mr

Rampe, advising that Loyal Coal P/L had withdrawn its application due to its
inability to confirm the requisite level of financing to meet its obligations to pay
the AFC.1948
1752 Following the withdrawal of Loyal Coal P/L on 9 June 2009, on 10 June 2009,
in an email to Mr Zanella and Ms Moloney, Mr Hughes advised that the
Evaluation Committee would need to reconvene “in light of the withdrawal of
submissions by one of the participants in the process”.1949 In a separate email
to Mr Fennell, Mr Hughes advised “[i]t appears one of the parties
1946
Exhibit A p 4119.
1947
1948
Exhibit A p 4187.
1949
Exhibit A p 4161.
5KIPGFD[#WUV.++
recommended, by the panel in its report, has withdrawn some of its

submissions”.1950 He suggested the panel reconvene on 18 June 2009.
1753 On 18 June 2009, the Evaluation Committee reconvened.1951 Mr Fennell made

a handwritten file note that meeting.1952 He gave evidence that, in the
Evaluation Committee’s assessment, referable to the evaluation criteria, the
“next best” applicant for Mount Penny was Cascade Coal P/L.1953 Cascade
Coal P/L had submitted its EOI for Mount Penny on 16 February 2009. 1954
The Evaluation Committee’s decision in respect of the Mount Penny Coal

Release Area and the grant of the EL
1754 The final report of the Evaluation Committee was dated June 2009. 1955 The
final report lists four companies as having submitted an EOI in relation to
Mount Penny:
1. Jain Group
2. Cascade Coal Pty Limited
3. Breakspheare Coal Mines Ltd
4. Monaro Mining NL1956
1755 Under the heading “Conclusion and Recommendation”, the final report stated
that the EOI received from Cascade Coal P/L was selected as the successful
EOI applicant for Mount Penny, being “clearly superior to the other EOIs
received in terms of the evaluation criteria”.1957
1756 Mr Hughes gave evidence he prepared and signed the Evaluation Committee’s
final report,1958 “taking into account events which had occurred in the
interim”.1959
1757 On 18 June 2009, a Director-General Submission entitled “Coal Release

Exploration Areas – Expression of Interest Recommendation” prepared by Mr
1950
Exhibit A p 4167.
1951
Exhibit A p 4341; Exhibit R.
1952
Exhibit A p 4341; Exhibit R.
1953
T 2116.
1954
1955
1956
Exhibit A p 4346.
1957
Exhibit A p 4347.
1958
T 2145.
1959
T 2146.
5KIPGFD[#WUV.++
Hughes was issued to Dr Sheldrake.1960 The Submission states, inter alia, that
the EOI application received from Cascade Coal P/L for Mount Penny,
“including additional financial contributions proposed on grant of an Exploration
Licence”, was “clearly superior to the other EOIs received in terms of the
evaluation criteria”.1961
1758 Dr Sheldrake’s handwritten note on the face of the document, dated 19 June
2009, stated the following:
Recommendations of the Evaluation Team are accepted. Accordingly letters

are to be despatched to the successful + unsuccessful tenderers. 1962
1759 On 19 June 2009, in a letter from Dr Sheldrake, Cascade Coal P/L was
informed that it was the successful application for the Mount Penny EL.1963
1760 At 11:24am on 25 June 2009, James McGuigan advised Mr Brook by email

that the DPI had advised by letter that Cascade Coal P/L was successful in
respect of the tender for the Mount Penny (and Glendon Brook) Coal Release
Areas1964 and invited them to apply for an EL over those areas. Mr McGuigan
sent the same letters by email to Moses Obeid at 11:30am. The body of the
email read: “Mo, As discussed. Good work. Look forward to a beer
tomorrow.”1965
1761 On 22 July 2009, Dr Sheldrake exercised the delegated power under s 13 of

the Mining Act to grant consent to Cascade Coal P/L lodging an application for
the issue of an EL at Mount Penny.1966
1762 On 21 August 2009, Mt Penny Coal P/L was registered. Richard Poole, John
McGuigan and John Atkinson were appointed directors. Cascade Coal P/L held
100% of the shares issued in Mount Penny Coal P/L.1967
1763 On 24 August 2009, Cascade Coal P/L submitted an application for the Mount
Penny EL, requesting that it be granted to the entity Mt Penny Coal P/L, a
1960
1961
Exhibit A p 4374.
1962
Exhibit A p 4371.
1963
1964
1965
Exhibit A p 4391.
1966
Exhibit A p 4467.
1967
Exhibit B.
5KIPGFD[#WUV.++
wholly owned subsidiary of Cascade Coal P/L.1968 The Mount Penny EL was
issued to Mt Penny Coal P/L on 21 October 2009.1969
1764 In September 2009, Mr Brook began negotiating his divestment from the Mount
Penny joint venture by the sale of Warbie P/L’s 12% interest. Following a
series of emails with Mr Poole, the Chairman of Cascade Coal Pty Ltd, and a
meeting on 8 September 2009,1970 a figure of $1.75 million was agreed to.1971
1765 By late September 2010, an undated but otherwise executed Deed of Release
between Warbie P/L, Mr Brook, Southeast Investment Group Pty Limited
(Southeast Investment Group P/L) and Coal & Minerals Group Pty Limited
(Coal & Minerals Group P/L), of which Mr Poole was director, divested Mr
Brook from the balance of his interest in the joint venture with Cascade Coal
P/L.1972 As to the details of those contractual arrangements see par 1781 and
following below.
1766 Mr Brook’s divestment from the joint venture brought an end to his dealings
with Moses Obeid and the mining companies.
Mr Brook’s credibility and reliability

1767 I return to the concerns I have earlier expressed about Mr Brook’s reliability
and credibility.
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.1973 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.1974
1968
Exhibit A pp 4499-4513. I note that company was also referred to as “Mt Penny Coal Mines” in the body of
the document annexed to Cascade Coal P/L’s application (Exhibit A p 4506).
1969
1970
Exhibit A p 5450.
1971
T 2998.
1972
T 3000; Exhibit AT pp 73-75.
1973
T 3010-3011.
1974
T 3009-3010.
5KIPGFD[#WUV.++
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. 1975 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.
1771 Mr Brook claimed in his evidence that at least until the collapse of Lehman
Brothers in September 2008 he was acting at all times consistently with his
fiduciary obligations as a senior employee of that company. However, despite
his proposal that Monaro Mining NL and Lehman Brothers engage in a joint
venture being soundly rejected by Lehman Brothers as at 23 July 2008 1976 and,
as I have observed, it was neither reformulated nor resubmitted, he proceeded
to continue to deal with Monaro Mining NL after that date, ostensibly on
Lehman Brothers’ behalf, without informing Monaro Mining NL that Lehman
Brothers had rejected his proposal.1977 I note he also introduced himself as a
representative of Lehman Brothers when he was invited by Moses Obeid to
attend the meeting with Mr Rumore on 23 July 2008.1978 While that was
obviously done with Moses Obeid’s knowledge, it does, to my mind, raise
questions as to the capacity in which Mr Brook continued to act in brokering an
arrangement between Moses Obeid (ostensibly representing the “landowners
alliance” but in reality representing the Obeid family) on one hand and Monaro
Mining NL as the applicant for the grant of an EL at Mount Penny on the other,
from that date until 15 September 2008 when Lehman Brothers collapsed.
1975
T 3015.
1976
T 3005.
1977
T 1879.
1978
Exhibit Q pp 1251-1252; T 1975.
5KIPGFD[#WUV.++
1772 I have very considerable difficulty accepting the truth of Mr Brook’s account
that he was at all times until Lehman Brothers collapsed acting within the
scope of his authority as Senior Vice President and not positioning himself to
secure a secret commission (promised or not) from Moses Obeid without
informing his employers.
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.
1775 The impact upon Mr Brook’s credibility of that behaviour and what I am
satisfied is related behaviour which shows his capacity for mendacity in his
dealings with the various business entities and individuals who either gave
evidence in the Crown case or, in the absence of witnesses to attest to those
5KIPGFD[#WUV.++
dealings (as was the case with respect to Cascade Coal P/L) on the basis of
what the documentary evidence reveals about those dealings.
1776 While Mr Brook’s conduct was in many related respects professionally

disreputable and, insofar as his refusal to admit what I consider was the patent
evidence of his duplicity, an attitude which was adverse to his credit, in
resolving the issues in dispute in this trial, those findings, ironically, have
proved to be of only marginal relevance.
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.
5KIPGFD[#WUV.++
(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.
1779 The Crown also relied on Mr Brook’s evidence to establish that in his dealings
with Monaro Mining NL he was acting at all times responsive to Moses Obeid’s
requests for information, in order that he retain control over Monaro Mining NL
and their tender for the Mount Penny EL. On the Crown case, that control was
most evident by May 2009 when Monaro Mining NL had officially abandoned
its application for the grant of the Mount Penny EL and negotiations with
Cascade Coal P/L were conducted, initially under a Landowners Agreement
and then the Joint Venture agreement with that company.
1780 Since no witnesses from Cascade Coal P/L were called in the Crown case, Mr
Brook’s evidence concerning the terms upon which Monaro Mining NL
disengaged from the EOI process, and the circumstances in which Moses
Obeid re-engaged with Cascade Coal P/L, was important as providing context
for the documents generated at that time being tendered by the Crown as part
of the “entrepreneurial phase” in proof of the existence of the conspiracy and
Moses Obeid’s participation in it.
5KIPGFD[#WUV.++
Sale of the Joint Venture

1781 From the various arrangements set out at length above at pars 1731-1350, I
am satisfied the following state of affairs existed as at June 2009: 1979
(1) Mt Penny Coal P/L was intended to be the incorporated joint venture
company in which Cascade Coal P/L would vest 100% of its interest in
the Mount Penny EL as contemplated by the Letter of Joint Venture of 5
June 2009 and the Letter of Amendment of the following day.
(2) Buffalo Resources P/L, of which Mr Brook was director and shareholder,
was entitled, at any time, to acquire a 25% interest in Mt Penny Coal
P/L in the form of 25% of the shares in that company, that interest being
beneficially held for Warbie P/L (12% share) and Equitexx P/L (88%
share).1980 Mr Sassine, the Obeids’ accountant, was the director,
secretary and sole shareholder of Equitexx P/L.1981 Equitexx P/L was
the trustee of the Obeid Family Trust No 2 from 14 May 2002 to 10
November 2010.1982
1782 The analysis which follows is drawn from the expert report of Mr Temple-Cole,
a forensic accountant. His report was tendered without objection on the basis
that his analysis and the conclusions he reached were based on documents
tendered in the trial. He was not required by the accused for cross-
examination.
1783 On 24 November 2009, a Deed of Put and Call Option was executed between
Locaway P/L, Geble P/L and Justin Kennedy Lewis P/L (Vendors) and Mt
Penny Properties Pty Limited (Mt Penny Properties P/L) (Purchaser). John
McGuigan and Mr Poole were both directors of Mt Penny Properties P/L. The
Deed of Put and Call Option provided for Mt Penny Properties P/L to
simultaneously purchase Cherrydale Park, Donola and Coggan Creek (with
contracts for sale of each property annexed to the Landowners Agreement).1983
1784 I note in that connection that pursuant to the Profit Sharing Deed, upon the sale
of Coggan Creek, Justin Kennedy Lewis P/L agreed to pay 30% of the profit on
the sale to UPG P/L.1984
1979
Exhibit AT pp 68-69.
1980
1981
Exhibit C.
1982
Exhibit B.
1983
Exhibit A pp 4765-4965
1984
See par 1924 and following. A fully executed version of that agreement was not tendered in the trial.
5KIPGFD[#WUV.++
1785 The Deed of Put and Call Option also provided for access to Cherrydale Park,
Donola and Coggan Creek in the meantime.1985 Annexed to the Deed was an
“interdependent” Rural Land Access Agreement for Mineral Exploration. 1986
That agreement was also executed on 24 November 2009.1987
1786 The Access Agreement provided for the payment of monthly access fees by Mt
Penny Properties Pty Ltd to the owners of each of the three properties in the
following amounts:
Property Sale price Access fee
Cherrydale $17 million1988 $14,875/month1989
Donola $2.4 million1990 $3,000/month
Coggan
$14 million1991 $13,825/month
Creek
1787 Access fees were paid from an account in the name of Cascade Coal P/L into
an account in the name of Mt Penny Properties P/L and ultimately into
accounts in the names of the Moona Plains Family Trust Account ($476,000),
Geble P/L ($96,319) and Justin Kennedy Lewis P/L ($442,400) between 21
December 2009 and 20 July 2012. Those moneys totalled $1,014,719. 1992
1788 On 7 May 2010, Southeast Investments Pty Limited was registered. Mr

Chalabian, a solicitor who was retained by the Obeid family, was the director
and sole shareholder of that company. On 28 May 2010, the name of the
company changed to Southeast Investment Group P/L, effective from 10 May
2010.1993 That company was used by the Obeids in negotiating and executing
the sale of the 25% interest in the Joint Venture with Cascade Coal P/L.
1985
Exhibit A p 4753, clause 5.3 and Annexure D at Exhibit A pp 4967-5010.
1986
Exhibit A p 4753 clause 5.3-5.4.
1987
Exhibit A pp pp 4997-5010.
1988
Exhibit A p 4766.
1989
This amount was adjusted following 9 May 2012. See Exhibit AT par 2.6.5.
1990
Exhibit A p 4827.
1991
Exhibit A p 4865.
1992
Exhibit D and see Exhibit AT pp 43-46.
1993
Exhibit C.
5KIPGFD[#WUV.++
1789 On 11 May 2010, by Deed of Appointment of Trustee between Buffalo

Resources P/L (Retiring Trustee) and Southeast Investments P/L (New
Trustee),1994 Southeast Investments P/L1995 replaced Buffalo Resources P/L as
the trustee of the trust reflected in the Bare Trust Deed of 5 June 2009 and as
the joint venture partner with Cascade Coal P/L. From that point, the rights and
obligations held by Buffalo Resources P/L in the Joint Venture were assumed
by Southeast Investments P/L.
1790 By Southeast Investments P/L agreeing to act as trustee, it held the right to
acquire 25% of the shares in Mount Penny Coal P/L (the joint venture
company) on behalf of Warbie P/L (12%), being Mr Brook’s company, and
Equitexx P/L (88%), being a company controlled by the Obeids’ accountant
and the Trustee of the Obeid Family Trust No 2. As noted earlier, in September
2010, the 12% interest in the Mount Penny Joint Venture held by Warbie P/L
(Mr Brook’s company) was sold1996 to Coal & Minerals Group P/L for $1.75
million.1997 Warbie P/L was deregistered on 18 December 2011.1998
1791 Coal & Minerals Group P/L was registered on 16 June 2010.1999 Mr Poole, the
Chairman of Cascade Coal P/L, was the director of that company. On 17 July
2012, 717,748 ordinary shares in Cascade Coal P/L were issued to Coal &
Minerals Group P/L.2000 In effect, Cascade Coal P/L used Coal & Minerals
Group P/L, with Mr Poole as its representative, to negotiate and effect the sale
of the Obeids’ share in the Joint Venture.
1792 Pursuant to a Deed of Transfer executed on 20 October 2010 between Coal &
Minerals Group P/L and Southeast Investment Group P/L,2001 Southeast
Investment Group P/L agreed to sell the right (for a fee of $1) to be issued 25%
of the shares in Mt Penny Coal P/L, which it held as trustee for Equitexx P/L, to
Coal & Minerals Group P/L for a purchase price of $60 million. 2002
1994
1995
Exhibit C. I note that on 28 May 2010, the name of that company was changed to Southeast Investment
Group P/L.
1996
1997
1998
Exhibit C.
1999
Exhibit C.
2000
Exhibit AT p 82.
2001
2002
Exhibit AT p 77.
5KIPGFD[#WUV.++
1793 Relevantly, the Deed of Transfer provided that the purchase price was to be
paid in two tranches:
(1) Tranche 1, totalling $30,000,000, to be paid as follows:

(a) $5,000,000 on the date of the Deed of Transfer
(b) $2,500,000 no later than 25 October 2010
(c) $7,500,000 no later than 28 February 2011
(d) $15,000,000 no later than 30 June 2011.
(2) Tranche 2, totalling $30,000,000, to be paid in one of three alternate
methods:
(a) Payable by the issue or transfer of Public Company shares to the
value of $30,000,000
(b) Payable in three equal instalments of $10,000,000 each payable
on 30 June 2011, 31 August 2011 and 31 October 2011 with
interest payable at 12% per annum
(c) Payable by a lump sum of $40,000,000 no later than 15
December 2011.2003
1794 The Deed of Transfer also provided that all cash instalments of the purchase
price were to be paid to the Lands Legal Trust Account,2004 the law firm of Mr
Chalabian, a solicitor retained by the Obeids.
1795 The Crown produced the following aide memoire to illustrate the sale of the
25% interest in the joint venture.2005
2003
2004
Exhibit A p 5611.
2005
MFI 15.
5KIPGFD[#WUV.++
5KIPGFD[#WUV.++
1796 Before tracing the receipt of Tranche 1 and Tranche 2 payments pursuant to
the Deed of Transfer, it is necessary to set out the terms of two other
agreements executed on 20 October 2010 together with the Deed of Transfer.
The first was the Rights Termination Agreement (referenced in the Deed of
Transfer) between Coal & Minerals Group P/L, Cascade Coal P/L and Mount
Penny Coal P/L (the wholly owned subsidiary of Cascade Coal P/L which held
the entire interest in the Mount Penny EL).2006 The second was a Deed of
Charge between Coal & Minerals Group P/L and Southeast Investment Group
P/L.2007
The Rights Termination Agreement
1797 Pursuant to the Rights Termination Agreement,2008 Coal & Minerals Group P/L
and Mount Penny Coal P/L agreed, by the execution date, to terminate the
Rights Interest (that is, the right to be issued 25% of the shares in Mount
Penny Coal P/L for $1.00 and all other rights and obligations held by Coal &
Minerals Group P/L in relation to the Mount Penny Project) held by Coal &
Minerals Group P/L subject to the following conditions:
(a) any consent or approval required under the Mining Act to the termination of
the Rights Interest being obtained from the Minister or from an officer of the
Department acting with authority of the Minister; and
(b) the Coal and Minerals [Group Pty Ltd] obtaining all other necessary third
party consents to the termination of the Rights Interest.2009
1798 Consideration totalled $62 million:
(1) Cascade Coal P/L would pay $32 million as a “Termination Price” to
Coals & Minerals Group P/L as follows:
(a) $17 million on or before 20 February 2011; and
(b) $15 million on or before 20 June 2011.
(2) Coal & Minerals Group P/L would be issued 9.3% of the shares in
Cascade Coal P/L as “Consideration Shares” with a value of $30 million.
1799 Ultimately, following from the events set out below, the “Consideration Shares”
(that is, 717,748 beneficial ordinary shares issued to Coal & Minerals Group
2006
2007
2008
2009
Exhibit A p 5640.
5KIPGFD[#WUV.++
P/L) were transferred pursuant to a change of company details form dated 13

October 2010.2010
The Deed of Charge

1800 Pursuant to the Deed of Charge,2011 Southeast Investment Group P/L was
given a fixed charge and step in rights over the shares in Cascade Coal P/L to
be issued to Coal & Minerals Group P/L and that company’s interest in the
Rights Termination Agreement. The effect was that, in the event the Deed of
Transfer was breached by Coal & Minerals Group P/L, Southeast Investment
Group P/L would step into the position of Coal & Minerals Group P/L. 2012
1801 Mr Temple-Cole provided the following diagram to illustrate the financial

arrangements and contractual obligations in place at the end of October
2010:2013
1802 The sale of the Obeid family’s interest under the joint venture with Cascade
Coal P/L in October 2010 for $60 million is relied upon by the Crown as
2010
Exhibit C.
2011
2012
Exhibit AT p 89.
2013
Exhibit AT p 89.
5KIPGFD[#WUV.++
evidence of the culmination of the determined steps taken by Moses Obeid (on
behalf of his family) after the conspiracy had been executed to achieve the
maximum return possible from the “value” of Mr Macdonald’s multiple acts of
misconduct committed during the currency of the conspiracy in which Moses
Obeid and Edward Obeid were active participants, as the Crown expressed it
in closing submissions, by “cashing in… the financial benefits of the
conspiracy”.2014
1803 The Crown went on to submit that this is not a case where there is any room
for doubt about the monetary value of Mr Macdonald’s successive acts of
misconduct. The undisputed evidence is that it was converted (ultimately) into
$60 million, of which $30 million is shown to have been received by solicitors
retained by the Obeid family which, less fees paid to that firm, was distributed
to companies controlled by members of the Obeid family between 20 October
2010 and 4 May 2012, in particular to Obeid Corporation P/L and Calvin
Holdings Pty Limited (Calvin Holdings P/L) as successive trustees of the Obeid
Family Trust No 2.2015
Payment of Tranche 1
1804 The following table, extracted from Mr Temple-Cole’s expert report,2016 sets out
the payments made under Tranche 1 of the Deed of Transfer into Lands Legal
Trust Account from Coal & Minerals Group P/L (with funds from Cascade Coal
P/L) totalling $30 million. After the deduction of legal fees, these funds were
disbursed to companies controlled by members of the Obeid family.
Paid from Paid to

Date Amount
Account Account
1A – $5 million on date of Deed (20 October 2010)
Amanda
20-Oct- Lands Legal
5,000,000 Poole NAB
10 Trust Account
Classic
2014
MFI 181 p 149.
2015
Exhibit B.
2016
5KIPGFD[#WUV.++
Account
Obeid
21-Oct- Lands Legal Corporation
5,000,000
10 Trust Account Business Cash
Account
1B – $2.5 million no later than 25 October 2010
Amanda
25-Oct- Poole NAB Lands Legal
2,500,000
10 Classic Trust Account
Account
Obeid
01-Nov- Lands Legal Corporation
2,160,000
10 Trust Account Business Cash
Account
01-Nov- Lands Legal Shop Easy

50,000
10 Trust Account Lockers Account
01-Nov- Lands Legal Lands Legal

234,800
10 Trust Account Trust Account
04-Nov- Lands Legal

24,514 PKF
10 Trust Account
08-Mar- Lands Legal Shop Easy

10,000
14-Mar- Lands Legal

20,487 PKF
11 Trust Account
Tranche 1C - $7.5 million no later than 28 February 2011
5KIPGFD[#WUV.++
28-Feb- Lands Legal

7,500,000 CMG Account
11 Trust Account
Obeid
04-Mar- Lands Legal Corporation
7,450,000
11 Trust Account Business Online
Saver Account
04-Mar- Lands Legal Shop Easy

50,000
Tranche 1D - $15 million no later than 30 June 2011
Amanda
14-Jun- Poole NAB
11 Classic
Account
CMG
16-Jun- Business
11 Maximiser
Account
16-Jun- Lands Legal

11 Trust Account
Calvin Holdings
17-Jun- Lands Legal in trust for Obeid
9,926,660
11 Trust Account Family Trust No.
2 Accont
17-Jun- Lands Legal Shop Easy

73,335
Tranche 1D(2)
5KIPGFD[#WUV.++
Amanda
03-May- Poole NAB
12 Classic
Account
03-May- Cascade Coal

12 Account
03-May- Lands Legal

12 \ Trust Account
04-May- Lands Legal

77,000 State Capital
12 Trust Account
Calvin Holdings
in trust for the
04-May- Lands Legal
4,923,000 Obeid Family
12 Trust Account
Trust Account
No. 2
1805 The payment of Tranche 1 in its entirety was also reflected in the Lands Legal
Trust Account Statement dated 4 May 2012.2017
Tranche 2
1806 With respect to the payment of Tranche 2, by letter of 28 February 2011,
Richard Poole (director of Coal & Minerals Group P/L) confirmed to the
Directors of Southeast Investment Group P/L that Coal & Minerals Group P/L
elected to pay Tranche 2 by the issue or transfer of Public Company shares to
the value of $30 million (Alternate 1).2018
1807 In a letter to Mr Poole dated 2 May 2011,2019 Mr Chalabian, writing in his

capacity as sole director of Southeast Investment Group P/L, notified Coal &
Minerals Group P/L that it had defaulted on its obligation with respect to the
2017
2018
Exhibit A p 5845.
2019
5KIPGFD[#WUV.++
payment of Tranche 2 under the Deed of Transfer to “procure to be issued or

transferred for the benefit of South East shares to a value of $30 million based
on the share price on which the majority of Cascade or Mount Penny shares or
the Mount Penny Project is sold to the Public Company (as defined in the
Deed) no later than 30 April 2011”, described as the “Event of Default”.2020
1808 Mr Chalabian also provided notice that unless Coal & Minerals Group P/L
remedied that Event of Default by 5:00pm 15 June 2011, Southeast Investment
Group P/L “will terminate the Deed,” pursuant to which “all due and outstanding
payments of the Purchase Price … become immediately due and payable
together with all costs and expenses incurred by Southeast”.2021 Mr Chalabian
also indicated that “Southeast will to the full extent available enforce the
securities provided pursuant to clause 4 of the Deed and any supporting or
ancillary security”.2022
1809 In a further letter to Mr Poole dated 6 July 2011, Mr Chalabian notified Coal &
Minerals Group P/L that it had “failed to remedy the Event of Default” stipulated
in the letter of 2 May 2011, acknowledged acceptance of “part payment of
$10,000,000 towards the balance of the Purchase Price on 17 June 2011”, and
confirmed that that payment “does not waive our right to immediately terminate
the Deed”.2023
1810 In a letter to the Directors of Southeast Investment Group P/L dated 3 August
2011, Mr Poole, in his capacity as director of Coal & Minerals Group P/L,
acknowledged that it had been “unable to complete its obligations under the
2024
Transfer Deed”. Mr Poole also confirmed that “all of Southeast’s powers
and rights to enforce its position under the Transfer Deed are not affected in
any way”.2025
1811 In a further letter to Mr Poole dated 5 April 2012,2026 Mr Chalabian indicated

that the balance of $30 million relating to Tranche 2 remained outstanding.
2020
Exhibit A p 5885.
2021
Exhibit A p 5885.
2022
Exhibit A p 5886.
2023
Exhibit A p 5905.
2024
Exhibit A p 5907.
2025
Exhibit A p 5907.
2026
5KIPGFD[#WUV.++
1812 On 1 May 2012, Mr Poole resigned as the director of Coal & Minerals Group
P/L.2027 On 27 September 2010, Mr Poole had transferred his shareholding in
Coal & Minerals Group P/L to Arthur Phillip Nominees P/L, a company of which
he was a director.2028 Also on 1 May 2012, Arthur Phillip Nominees P/L, in its
capacity as sole shareholder of Coal & Minerals Group P/L, consented to the
appointment of Mr Chalabian, solicitor for the Obeid family’s interests, as the
sole director of Coal & Minerals Group P/L.2029
1813 An undated but otherwise executed Power of Attorney granted a transfer of all
and any shares owned by Coal and Minerals P/L in Cascade Coal P/L to Mr
Chalabian.2030 Coal & Minerals Group P/L had been issued 717,748 ordinary
shares in Cascade Coal P/L for $0.00001 per share on 13 October 2010. The
Crown Companies Summary does not indicate that the status of those shares
had altered since that date.2031
1814 On 4 May 2012, Mr Chalabian wrote to Mr Poole in Mr Poole’s capacity as sole

director of Coal & Minerals Group P/L (despite Mr Poole’s resignation three
days prior), confirming:
1. All securities provided to Southeast pursuant to Clause 4 of the Transfer

Deed dated 20 October 20102032 are now released in full; and
2. Upon receipt of clean and clear legal title to the Coal and Minerals Shares
… or the exercise and completion of the option contained in clause 3.10 of the
Deed of Variation of the Transfer Deed, Coal and Minerals obligations to
Southeast will [be] completely discharged and at an end. 2033
1815 On 9 July 2012, in an email to Ron Heinrich, solicitor, Mr Chalabian noted that
the transfer of shares under Tranche 2 was still outstanding.2034 He demanded
that Coal & Minerals Group P/L transfer to Southeast Investment Group P/L the
“Coal and Minerals Shares”2035 by 5 pm on 12 July 2012. He advised that if the
shares were not received, “Southeast will execute (pursuant to the Power of
2027
Exhibit A p 6035.
2028
Exhibit AT p 81; Exhibit C.
2029
Exhibit A p 6037.
2030
2031
Exhibit C.
2032
2033
Exhibit A p 6062.
2034
Exhibit A p 6081.
2035
A reference to the 717,748 shares held by Coal & Minerals Group P/L in Cascade Coal P/L.
5KIPGFD[#WUV.++
Attorney granted by Coal and Minerals) and lodge with the Company Secretary
of Mount Penny a duly executed Share Transfer for registration”. 2036
1816 By letter dated 17 July 2012, Mr Chalabian, in his capacity as “Solicitor

Director” of Lands Legal, provided the Company Secretary of Cascade Coal
P/L an “executed Share Transfer for transfer of 717,748 shares [in Cascade
Coal P/L] owned by Coal and Minerals Group Pty Limited to South East
Investment Group Pty Limited”.2037 The Share Transfer document is not in
evidence. Mr Temple-Cole noted that the Share Transfer was dated 17 July
2012 and included signatures next to placeholders labelled “Richard J. Poole
as director of [Coal & Minerals Group P/L], and Sevag Chalabian as director of
Southeast”.2038 Mr Poole had resigned as director of Coal & Minerals Group
P/L on 1 May 2012.2039
1817 Mr Temple-Cole noted that the Share Transfer stated the following:
Upon registration of the transfer, the Buyer [Southeast Investment Group P/L]
will hold all of the Shares beneficially. The Seller [Coal & Minerals Group P/L]
transfers the Shares to the Buyer [Southeast Investment Group P/L] for the
consideration stated [$1] subject to the conditions on which the Seller holds
the Shares as at the date of this transfer. The Buyer accepts the Shares
subject to the same conditions.2040
1818 Mr Temple-Cole also noted that, contrary to the terms of the Share Transfer
outlined above, an “ASIC Comprehensive Company Title Search for Cascade
Coal P/L dated 16 April 2018 records that… no transfer of shares in Cascade
Coal P/L between [Coal & Minerals Group P/L] and [Southeast Investment
Group P/L] took place”.2041
1819 Thus, Mr Temple-Cole was not able to confirm that the Tranche 2 payments
(totalling $30 million) were paid pursuant to the Deed of Transfer.
1820 Ultimately, Mr Temple-Cole summarised the position as at 17 July 2012 as

follows:2042
2036
Exhibit A p 6081.
2037
Exhibit A p 6083.
2038
Exhibit AT p 82.
2039
Exhibit A p 6035.
2040
Exhibit AT p 82.
2041
Exhibit AT p 82; Exhibit C.
2042
Exhibit AT p 93.
5KIPGFD[#WUV.++
(1) Coal & Minerals Group P/L had acknowledged that it had been unable
to complete its obligations under the Deed of Transfer, including the
payment by Coal & Minerals Group P/L of the Purchase Price of $60
million to Southeast Investment Group P/L. Only $30 million had been
paid.
(2) Coal & Minerals Group P/L and Southeast Investment Group P/L had
agreed to vary the Deed of Transfer.
(3) Coal & Minerals Group P/L had agreed to hold as bare trustee for
Southeast Investment Group P/L that part of the Rights Interest for
which the Purchase Price had not been paid. The parties agreed that
proportion was 50% of the Rights Interest ($30 million).
(4) Coal & Minerals Group P/L could, at its election, purchase that part
(50%) of the Rights Interest it held as bare trustee for Southeast
Investment Group P/L by paying $32 million to Southeast Investment
Group P/L (no earlier than 1 July 2012, no later than 7 July 2012). If not
paid, this option would lapse.
(5) In the event the Deed of Transfer was breached by reason of a breach
by Coal & Minerals Group P/L, Southeast Investment Group P/L would
step into the position of Coal & Minerals Group P/L by acquiring the
company’s 717,748 ordinary shares in Cascade Coal P/L.
(6) Southeast Investment Group P/L agreed that upon receipt of “clean and
clear” legal title to the 717,748 shares Coal & Minerals Group P/L held
in Cascade Coal P/L pursuant to the Rights Termination Agreement
executed on 20 October 2010 or the exercise and completion of the
option contained in clause 3.10 of the Deed of Variation of Transfer
Deed, Coal & Minerals Group P/L’s obligations to Southeast Investment
Group P/L would be discharged.
(7) Notwithstanding an executed Share Transfer dated 17 July 2012,
recording that Southeast Investment Group P/L had become, or was to
become, the owner of 717,748 shares in Cascade Coal P/L which were
previously owned by Coal & Minerals Group P/L, this share transfer did
not, according to the information available to Mr Temple-Cole, occur.
(8) This left Coal & Minerals Group P/L as the holder of the 717,748 shares
in Cascade Coal P/L, for which Coal & Minerals Group P/L had paid $30
million.2043
1821 Mr Temple-Cole illustrated the position as at 17 July 2012 as follows:2044
2043
Exhibit AT p 92.
2044
Exhibit AT p 93.
5KIPGFD[#WUV.++
Is the existence of the conspiracy established beyond reasonable doubt?

1822 In my deliberations to verdict I have reviewed and carefully analysed the
compendious body of evidence upon which the Crown relied to prove its case,
together with the evidence tendered by the accused, where relevant, to either
supplement or, as the accused would submit, contradict significant aspects of
the Crown case.
1823 In the course of that exercise, I have made various factual findings on the basis
of which I concluded that of the eight acts of misconduct upon which the Crown
relied to prove the existence of the conspiracy, the Crown had established Mr
Macdonald wilfully breached his duties of confidentiality and/or impartiality on
five discrete occasions between May 2008 and September 2008, those
5KIPGFD[#WUV.++
occasions corresponding with five of the eight acts of misconduct particularised

by the Crown.2045
1824 In finding the first and second acts of misconduct established, I was satisfied
that in May 2008 Mr Macdonald wilfully breached his Ministerial duty and
obligation of impartiality by seeking information he knew or expected would be
held by the DPI, with the knowledge or expectation that in gathering that
information and sharing it, he would assist Edward Obeid and Moses Obeid
and their family in their pursuit of the possibility of a coal release area being
designated in the Bylong Valley near Mount Penny which would include
Cherrydale Park.
1825 In finding the fourth, seventh and eighth acts of misconduct established, I was
satisfied that Mr Macdonald wilfully breached his Ministerial duties and
obligations of confidentiality and/or impartiality in the knowledge or expectation
that the particular information he provided to Moses Obeid and/or a member of
his family (including Edward Obeid), from time to time between July and
September 2008, would be used to either pursue a joint commercial venture
with a mining company who might apply for the EL at Mount Penny (the Mount
Penny Coal Release Area having been designated by the DPI by that time) or
to further progress a settled contractual arrangement with a mining company
with that same objective.
1826 Having found those five acts of misconduct established, and after taking into
account all of the evidence that places those discrete acts of misconduct into
the context of Mr Macdonald’s pre-existing and continuing relationship with
Edward Obeid and Moses Obeid, the question is whether I am able to make
the further critical finding of fact that Mr Macdonald committed those acts of
misconduct in furtherance of a conspiracy that was in existence as at 9 May
2008, the date the first act of misconduct was committed.
1827 If I am unable to reason to that conclusion, it follows that despite being satisfied
that Mr Macdonald committed five successive acts of wilful misconduct as the
Minister for Mineral Resources in his dealings with the Obeid family (conduct
which would otherwise render him liable to be found guilty of the substantive
2045
MFI 134/1.
5KIPGFD[#WUV.++
offence of misconduct in public office), I would be unable to find the existence

of the conspiracy proved beyond reasonable doubt. Were I of that view, the
question whether the Crown has established the participation of each of the
accused in that conspiracy would not arise.
1828 In addressing that question, and to make clear my reasoning in resolving it, I
propose to review the reasoning process in which I have already engaged in
the course of finding each of the first, second, fourth, seventh and eighth acts
of misconduct proved.
1829 In reasoning to the conclusion that the first and second acts of misconduct
were established (in the process of which I was also satisfied beyond
reasonable doubt the Crown had proved the Shepherd fact)2046 there was, at
that point in my deliberations, insufficient evidence to allow me to make the
further finding that Mr Macdonald’s enquiry of the Department on 9 May 2008
about the volume of coal resources in the Bylong Valley in the area of Mount
Penny (the first act of misconduct) and then, upon receipt of that information,
his further enquiry on 14 May 2008 as to the willingness of the Department to
release its holdings under EL 6676 to tender (the second act of misconduct)
was conduct in furtherance of an existing agreement, with either or both of
Edward Obeid and Moses Obeid, that he would wilfully commit acts of
misconduct in connection with the granting of an EL at Mount Penny and in
connection with their interests (and/or those of their family and/or associates)
for the improper purpose the Crown alleged.
1830 As I saw it, at that point in my deliberations, it was possible that Mr Macdonald
made the enquiries of the DPI on 9 and 14 May 2008 as a favour to Edward
Obeid, in much the same way as he had been asked by Edward Obeid earlier
in 2008 whether a mine was planned for the Bylong Valley, an enquiry which,
according to Edward Obeid’s account to journalists in December 2012 which
was apparently accepted by the Crown as truthful (although, for reasons I will
turn to later, I query2047), Mr Macdonald fielded those enquiries of the DPI to a
2046
2047
5KIPGFD[#WUV.++
member of his staff who then conveyed the answer to Edward Obeid at Mr
Macdonald’s direction.2048
1831 To be clear, although I was satisfied that Mr Macdonald made the enquiries of
the Department on 9 and 14 May 2008 in breach of his duty of impartiality and
for the improper purpose of advancing the private interests of the Obeid family,
knowing that they owned property in the area of Mount Penny and, further,
although I was also satisfied, given the nature of the enquiries, that he must
also be taken to have known that the Obeid family were, to put it neutrally,
interested in having a better understanding of the actual volume of coal
resources in an area proximate to their existing landholding in Cherrydale Park,
including the likelihood (or not) of the Department releasing its holdings under
EL 6676 to tender, I was not persuaded that the evidence directly bearing upon
proof of those facts supported the further finding that Mr Macdonald acted in
that way because, by that time, the conspiracy had been forged.
1832 Doubt about proof of that fact was clearly not determinative of whether the
Crown had proved the existence of the conspiracy beyond reasonable doubt.
The Crown was entitled to seek to prove the existence of the conspiracy
referable to all the evidence adduced in the trial, including, in particular, the
evidence it relied upon to prove the remaining six acts of misconduct which, on
the Crown case, were successively committed by Mr Macdonald after 14 May
2008, namely between 6 June 2008 and 13 January 2009 (the fourth to the
ninth acts of misconduct inclusive).
1833 I next revisited the question whether the Crown had proved the existence of the
conspiracy after considering the evidence bearing upon proof of the fifth act of
misconduct, including the 4 and 6 June 2008 meetings, the events leading up
to those meetings and, in particular, the course of the 6 June 2008 meeting at
which the Crown alleged the fifth act of misconduct was committed.
1834 For the reasons set out at length earlier,2049 I was not persuaded that the
Crown had established the fifth act of misconduct, as particularised. That being
the case, the evidence of what occurred preliminary to and in the course of
2048
2049
Par 1041 and following.
5KIPGFD[#WUV.++
both the 4 and 6 June 2008 meetings was not probative of the existence of the
conspiracy in the way contended for by the Crown, that is, as evidence of a
discrete act of wilful misconduct from which the existence of the conspiracy
might be inferred. That body of evidence was, however, of continuing
relevance to proof of the Crown case. In particular, it was an important part of
the evidence relevant to proof of the unfolding narrative of events culminating
in Mount Penny being designated by the DPI as a coal release area by 16 June
2008, and the subsequent inclusion of that area as one of the eleven areas in
the EOI process for the granting of ELs which was publicly launched on 9
September 2008.
1835 In considering the evidence of the 4 and 6 June 2008 meetings in that context,
I was satisfied that Mr Macdonald informed either or both of Edward Obeid
and/or Moses Obeid after the 4 June 2008 meeting of the prospect of a new
coal release area being designated in the Bylong Valley near Mount Penny, a
prospect which, by the 6 June 2008 meeting, had crystallised into the very real
potential that the family’s landholdings in the Bylong Valley in the area of
Mount Penny (at that time limited to Cherrydale Park) would become part of a
designated coal release area over which an EL might be granted.
1836 In making that factual finding, I discounted as a reasonable possibility that Mr

Macdonald provided that information simply because of his friendship with
Edward Obeid as a Parliamentary colleague or his friendship with Moses Obeid
through their shared interest in horseracing. While the nature and extent of Mr
Macdonald’s relationship with Edward Obeid and Moses Obeid was not
irrelevant to what might have motivated Mr Macdonald to provide that
information, I was ultimately satisfied that he did so on the basis of a number of
primary facts which revealed that his motivation was directly allied with what he
knew or believed by early June 2008 would be the value to Edward Obeid and
Moses Obeid in knowing of the very real potential that Cherrydale Park would
be included in a new coal release area.
1837 Those primary facts included the following:
(1) The enquiries Mr Macdonald had made of the Department on 9 and 14

May 2008 would not have been made were it not for the interest either
or both of Edward Obeid and Moses Obeid had expressed in exploring
5KIPGFD[#WUV.++
the prospect of exploiting the coal resources they knew or believed were
beneath Cherrydale Park and likely in the Bylong Valley more generally.
(2) The possibility of the DPI’s release of EL 6676 to tender was the subject
of Mr Macdonald’s enquiry of the Department on 14 May 2008.
(3) The small coal release area in the eastern part of the Bylong Valley
near Mount Penny discussed at the June 2008 meetings was part of the
Department’s holding under EL 6676.
(4) By the 6 June 2008 meeting, that small coal release area was identified
referable to Wiles Map 2 (a map which visualised the potential large
open cut coal resource in that area in a sideways S-shape) which
located Mount Penny and, by extension, Cherrydale Park, within EL
6676.
1838 In combination, those primary facts enabled me to find that by informing
Edward Obeid and/or Moses Obeid of the outcome of the 6 June 2008
meeting, Mr Macdonald was intentionally providing them with information he
knew or believed was, or might be, to their commercial advantage or potential
commercial advantage, despite that conduct not being relied upon by the
Crown as a discrete act of misconduct from which I was invited to find the
existence of the conspiracy proved.
1839 While I was satisfied that the information Mr Macdonald shared with the Obeids
after the 6 June 2008 meeting was likely to be what ultimately motivated Moses
Obeid and his brothers to seek to form a landholders alliance with the Boyds as
a first step in their pursuit of exploiting the value of that information, and while I
accepted that Mr Macdonald relayed the information generated from that
meeting with that knowledge and for that reason, there was no direct evidence
to support him having done so. There was, however, in my view, a compelling
inference he did and that the Boyds were approached by members of the
Obeid family with that knowledge.
1840 I am able to find that connection established as a matter of fact at this point in
my deliberations, in large part because of what I am satisfied the Crown has
established by Mr Macdonald’s commission of the fourth, seventh and eighth
acts of misconduct and the use to which Moses Obeid put the information
generated from those acts of misconduct.
1841 In concluding that it was Mr Macdonald’s communication of the information

emerging from the 6 June 2008 meeting that motivated the formation of a
5KIPGFD[#WUV.++
landholders alliance with the Boyds, I was satisfied that Moses Obeid and his
brothers were not motivated by what Edward Obeid and Moses Obeid told the
journalists in December 2012 was the threat associated with the pending
expiration of Authorisation 287 held by Anglo American P/L to the east of
Cherrydale Park or, in the event that the Authorisation was not renewed, that it
may be released to public tender. Neither was I satisfied that concern about
Authorisation 287 was what motivated Moses Obeid to attempt to attract Mr
Fitzhenry as a purchaser of Coggan Creek. To the contrary, I was satisfied that
Moses Obeid and his brothers were motivated in both those endeavours by
what was initially a belief that an area encompassing Cherrydale Park and
Coggan Creek might be released by the DPI for coal exploration under licence,
which crystallised into a state of expectation and then, by mid-June 2008,
ultimately into knowledge of the likelihood that it would happen.
1842 In closing, the Crown submitted that after what it described as “confirmation
from [Mr Macdonald] that the Mount Penny area would be included in a
forthcoming EOI process”, steps were taken “in earnest” to purchase Donola
and Coggan Creek.2050 In the way the Crown’s written closing submissions
were structured, that proposition was advanced on the assumption that I would
find the fifth and the sixth acts of misconduct proved, there being no discrete
particularised act of misconduct which alleged that Mr Macdonald
communicated that particular information in breach of either or both of his duty
of impartiality or confidentiality. The Crown supported its submission by
reference to Mr Rodd’s inspection of both properties no later than 23 June
2008, at which time Mr Rumore was retained to advise on the mining aspect of
what was described in Mr Neil’s submissions as the “dual strategy” in the
proposed arrangement with the Boyds.2051
1843 There was no evidence adduced at the trial that would allow me to make any
finding as to when the Boyds were first approached by members of the Obeid
family with a view to exploring the prospect of a strategy of that kind or, for that
matter, who approached them or what the Boyds were told. No member of
Pace Developments Group P/L, the property development group associated
2050
MFI 181 par 298.
2051
MFI 192 pp 222-223.
5KIPGFD[#WUV.++
with the Boyd family, was called in the Crown case. Neither Paul Obeid nor
Gerard Obeid was called to give evidence as to how, by whom, with what legal
advice (if any) and on what terms the Heads of Agreement under which
Coggan Creek and Donola would be purchased was formulated. The Heads of
Agreement with the Boyds was not tendered in evidence. The only evidence
(independent of Mr Rumore’s instructions) associating the Boyds with the “dual
strategy” was that the Boyds’ solicitor was named on the initial Contract for
Sale of Donola.2052
1844 That said, from what Mr Rumore was given to understand by Paul Obeid and
Gerard Obeid at the initial conference on 23 June 2008, I was satisfied that the
Heads of Agreement contemplated a mining aspect, in the sense that Mr
Rumore was instructed in the event that the three properties were the subject
of an “EOI process” following which “coal leases” were to be granted to a
mining company over that area, they would be “bought out” by the mining
company and at a multiple of their value.2053 I was also satisfied the allied
aspect of the Heads of Agreement with the Boyds contemplated the extension
or continuation of the use of Cherrydale Park for agricultural purposes, with the
neighbouring properties of Donola and Coggan Creek adding acreage and
amenity to the pursuit of those agricultural endeavours, in the interim, before
the mining aspect of that strategy materialised (if it did).
1845 There is no evidence as to the source of any knowledge that either or both of
Paul Obeid or Gerard Obeid had about an “EOI process” that might include
Cherrydale Park and the neighbouring properties. Mr Rumore did not enquire
as to the source of their information and, as noted, neither Paul Obeid nor
Gerard Obeid was called as witnesses in the Crown case. I do note, however,
that there is no evidence in the trial of any relationship of any kind between
Paul Obeid and/or Gerard Obeid and Mr Macdonald. That said, since I am
satisfied as a fact, having regard to all the evidence in the Crown case, that Mr
Macdonald informed either Edward Obeid or Moses Obeid or both of them after
the 6 June 2008 meeting that the Department was exploring the potential for
the excision of a small area for release near Mount Penny, I am satisfied, as a
2052
Exhibit A pp 1039, 1067-1075 and 1083.
2053
5KIPGFD[#WUV.++
matter of compelling inference from Mr Macdonald’s dealings with the

Department to that date (including, but not limited to, my finding that the first
and second acts of misconduct would not have been committed by him “but
for” favouring the interests of the Obeids as landowners), that Mr Macdonald
was the source of the knowledge Paul Obeid and Gerard Obeid had as at 23
June 2008, and that they acquired that knowledge from either or both of
Edward Obeid and Moses Obeid who received the information from Mr
Macdonald.
1846 The Heads of Agreement was not sighted by Mr Rumore before he was
advised by Moses Obeid at the next conference on 30 June 2008 (also
attended by his brothers, Paul Obeid and Gerard Obeid) that the agreement
would not proceed but that the family were in discussions with Tianda
Resources P/L as a new contracting party.
1847 I also found as a fact that Mr Macdonald introduced Mr Fang, the founder and
chairman of the Tianda Group (which included Tianda Resources P/L), to
Moses Obeid, prior to 30 June 2008 when Mr Fang was introduced to Mr
Rumore by Moses Obeid as a potential partner in a mining joint venture. In
making that finding, I rejected the submission advanced by Mr Neil that it was
reasonably possible that Mr Fang was introduced to the Obeid family by
somebody else within the business community.2054 It is necessary to re-
emphasise, however, that what was said in the course of that introduction,
including what information was shared between Mr Fang, Mr Macdonald and
Moses Obeid at that time, is not the subject of any evidence in the trial.2055 I
was prepared to find, however, again having regard to all of the evidence, that
the introduction was made by Mr Macdonald in order that Mr Fang and Moses
Obeid might discuss the prospect of a joint mining project, either at the same
time as the Heads of Agreement was under negotiation with the Boyds or at a
time when it was clear that those arrangements were unlikely to proceed. To
be clear, it was that scenario that I was satisfied was a source of added weight
in concluding that Mr Macdonald was pivotal in the steps taken by Moses
Obeid, on behalf of his family, to explore and then exploit the prospect of a coal
2054
MFI 192 p 227.
2055
5KIPGFD[#WUV.++
mining deal over land that included the family’s rural holdings in Cherrydale
Park.
1848 It was also clear to me that by 30 June 2008 (a week after the so-called “dual
strategy” was under discussion in the context of the proposed arrangements
with the Boyds) that the agricultural potential in the acquisition of the three
properties had all but fallen away. In the structure of the proposal with Tianda
Resources P/L, unconditional primacy was given to the development of the
three properties for coal exploration, with the Obeids acquiring 30% equity in
the entity that would tender for what was described in Mr Rumore’s notes as
“the coal lease”.2056
1849 To the extent that Mr Neil submitted that the “dual strategy” remained extant at
all times2057 as telling against the existence of the conspiracy alleged, that
submission is not persuasive. I accept the Obeids may have seen the potential
for Donola and Coggan Creek to be utilised, together with Cherrydale Park, as
agricultural land while the EOI process was under consideration by the DPI,
that is, before the public launch of that process and ultimately before any EL at
Mount Penny was granted (if it were granted) and before any mining lease
issued (if it issued). I also accept that might also have been the basis upon
which Mr Lewis represented his interest in purchasing Coggan Creek to Mr
O’Brien,2058 although, as Mr O’Brien made clear in his evidence, he did not
meet Mr Lewis prior to settlement of the sale of Coggan Creek in November
2009.2059 With reference to the statement he made in 2011 in the course of the
ICAC investigation, Mr O’Brien confirmed that the settlement of Coggan Creek
was delayed until November 2009 because the sale of Mr Lewis’ property in
Balmain had failed to settle, and that he considered Mr Lewis to be a genuine
buyer.2060 However, in circumstances where other evidence suggests that by
the time Mr Lewis signed the contracts for the purchase of Coggan Creek in
November 2008 and when he executed the Profit Sharing Deed that Mr
Rumore was instructed to prepare at that time, I was satisfied that a desire to
2056
Exhibit Q p 1042.
2057
MFI 192 p 223.
2058
In the interview with journalists Mr Shanahan and Ms Jiminez on 18 December 2012, Moses Obeid stated
that Mr Lewis was “brought” in to Coggan Creek because “he wanted a farm”. Exhibit AV(2) p 19 of 40.
2059
Exhibit A p 1268.
2060
T 1274-5.
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farm or embrace an idyllic rural lifestyle was not what motivated Mr Lewis to
acquire Coggan Creek or what motivated Moses Obeid to introduce him to Mr
Rumore.2061
1850 Despite Mr Lewis not being called as a witness in the Crown case and, in those
circumstances, although I am not able to determine Mr Lewis’ actual motivation
in having the call options for the purchase of Coggan Creek assigned to him
(and then contracting to purchase Coggan Creek), I was satisfied, having
regard to all the evidence, that he was not motivated to buy Coggan Creek for
its farming and lifestyle potential, given that Coggan Creek was encompassed
within the Mount Penny Coal Release Area, a state of affairs of which Moses
Obeid was aware when he introduced Mr Lewis to Mr Rumore in November
2008, after the launch of the EOI process.
1851 Furthermore, it became clear, in my view beyond any doubt, that in Moses
Obeid’s dealings with Monaro Mining NL via Mr Brook from 15 July 2008, and
in his direct dealings with Cascade Coal P/L from May 2009, the three rural
properties were promoted as being held by a landholders alliance, with whom
both mining companies were invited to contract, under either the Landowners
Agreement between Buffalo Resources P/L and Cascade Coal P/L or the
Landowners Deed when the arrangement with Monaro Mining NL and Voope
P/L was extant. Neither cattle farming nor agricultural production featured as
any part of those arrangements.
1852 It was in the context of the various factual findings I have summarised above,
together with the separate and discrete finding that the first and second acts of
misconduct were established, that I moved to consider whether the fourth,
sixth, seventh and eighth acts of misconduct were established and, if so,
whether any one or more of them addressed the concerns I had earlier
expressed about the existence of the conspiracy as at 9 May 2008 being
proved beyond reasonable doubt.
1853 I focused my consideration of that question on those four acts of misconduct. In

the event that I found none were established, the ninth act of misconduct
allegedly committed between 27 November 2008 and 13 January 2009, more
2061
Exhibit A pp 2637, 2707; Exhibit G par 53.
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than five months after the Crown alleged the conspiracy was forged, would
have been unlikely to support a finding of the existence of the conspiracy as at
9 May 2008, even if allied with proof of the first and second acts of misconduct.
I was also of the view that in the event that I found that each of the fourth, sixth,
seventh and eighth acts of misconduct established (or sufficient of them to
support a finding by inference of the existence of the conspiracy by 9 May
2008), the ninth act of misconduct would simply add additional weight to proof
of that fact. As it transpired, while I was not satisfied the ninth act of
misconduct was established, the events the subject of that act of misconduct
provided proof of the Crown case in a different way, namely by contextualising
the circumstances in which Moses Obeid approached Cascade Coal P/L.
1854 Whether the fourth, sixth, seventh and eighth acts of misconduct were
available as proof of the existence of the conspiracy required, first and
foremost, a careful analysis of the evidence directly bearing on whether any of
those four acts of misconduct, as particularised, were established. It also
required consideration of what I was satisfied the evidence was capable of
proving about Mr Macdonald’s state of mind at the time it was alleged he
provided the confidential information the subject of any one of those four acts
of misconduct, and the knowledge or belief Edward Obeid and/or Moses Obeid
had at the time they received that information (if they did) about the prospect of
an EL being granted at Mount Penny and the use to which they put that
information in that connection.
1855 If those four acts of misconduct were established, or sufficient of them when
coupled with proof of the first and second acts of misconduct, to enable me to
find the existence of the conspiracy proved by inference beyond reasonable
doubt, the only remaining question in proof of the guilt of the accused was
whether I was satisfied beyond reasonable doubt that, at the time the
agreement was forged, they each agreed to participate in that conspiracy.
1856 Given the nature of the conspiracy alleged and its scope and object, were I
satisfied at the end point of that analysis and beyond reasonable doubt of the
existence of the conspiracy, Mr Macdonald would, inevitably, be liable to be
convicted of that offence, conditional only upon me being satisfied, and beyond
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reasonable doubt, that at least one of either Edward Obeid or Moses Obeid
agreed to participate with him in that conspiracy, because I was satisfied of that
fact by the evidence of what they said or did in furtherance of the conspiracy or
by application of the co-conspirators rule as embodied in s 87(1)(c) of the
Evidence Act, or both.
1857 I was not persuaded that the sixth act of misconduct as particularised was
established. However, having regard to all of the evidence, including the fact
that I was satisfied that Mr Macdonald relayed information to the Obeids after
the 6 June 2008 meeting of the potential at that time for Cherrydale Park to be
included in a new coal release area, I was satisfied that he also relayed the
critical and additional information which emerged from the 16 and 17 June
2008 meetings with the DPI that Mount Penny had been designated by the
Department as a small coal release area for inclusion in the EOI process for
the grant of an EL. I was also satisfied that it was this information that finally
motivated Moses Obeid and his brothers to take determined steps to acquire
the neighbouring properties of Donola and Coggan Creek, and to seek Mr
Rumore’s advice about the prospect of an arrangement with a mining
company, firstly with the Boyds and then, when that did not proceed, with
Tianda Resources P/L and then ultimately with Monaro Mining NL.
1858 Again, it is important to emphasise that Mr Macdonald’s relaying of that

information was not particularised by the Crown as an act of misconduct in
breach of his duties of confidentiality or impartiality. It was, however, the factual
premise for the breaches of impartiality particularised by the Crown in the
Revised Statement of Particulars as the sixth, seventh and eighth acts of
misconduct, in the alternate to the allegation that in providing the information
the subject of each of those acts of misconduct Mr Macdonald wilfully breached
his duty of confidentiality.
1859 At the endpoint of the analysis of the evidence relied upon in proof of the sixth
act of misconduct, I was faced with the situation where the Crown had not
advanced a submission as to what findings I might make about the existence of
the conspiracy alleged, in the event that, as transpired, I was not persuaded
that the fifth or the sixth acts of misconduct were established. I was also
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without any focused submission from the Crown as to how a finding that Mr
Macdonald relayed or communicated critical information to the Obeids after the
6, 16 and 17 June 2008 meetings might have addressed that question.
1860 Neither did submissions from defence counsel deal with that eventuality. Mr
Neil’s submissions, in particular, were directed to raising a doubt about the guilt
of at least Moses Obeid (and, by implication, a doubt about Mr Macdonald’s
guilt) by seeking to persuade me that the Crown had failed to establish any of
the eight acts of misconduct upon which the Crown relied to prove the
existence of the conspiracy as at 9 May 2008. Mr Neil also submitted that were
I only persuaded that Mr Macdonald relayed the confidential information the
subject of the fourth and the sixth to ninth acts of misconduct inclusive, that
was a conceptually different conspiracy to the conspiracy the Crown sought to
prosecute at trial, and that verdicts of not guilty should be returned for that
reason.2062
1861 It was in those circumstances, and acutely conscious of the force of that
submission, that I then turned to consider whether the fourth, seventh and
eighth acts of misconduct were established.
1862 With respect to the fourth act of misconduct, I considered whether Wiles Map 1
and Wiles Map 2 bore the necessary quality of confidence when those maps
were alleged to have been provided by Mr Macdonald to Edward Obeid, Moses
Obeid or another member of the Obeid family. After considering all the
evidence bearing upon those related questions of fact and law, I was satisfied
that by no later than 7 July 2008 Mr Macdonald provided (or caused to be
provided) to Edward Obeid, Moses Obeid or Paul Obeid a copy of Wiles Map 2
in wilful breach of his duty of impartiality and for the improper purpose of
advancing the private interests of the Obeid family. I was also satisfied that “but
for” that improper purpose he would not have provided the information
embedded in that map by providing the map in specie.
1863 Although there was no evidence as to when Mr Macdonald provided Wiles Map
2 or to whom, and no evidence as to the means by which it was provided, I
found as a fact that it was provided by Mr Macdonald (or that he caused it to be
2062
See par 332.
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provided) before the second Wentworth Hotel meeting with Mr Brook on 7 July
2008, because I was satisfied Wiles Map 2 was in Paul Obeid’s physical
possession on that day. That finding did not oblige me to find as a fact that Mr
Macdonald was aware of, or needed to be aware of, the use to which the
recipient of Wiles Map 2 would put the information it contained, although I have
no doubt he came to learn that it had been used at a meeting with a
representative of Lehman Brothers, given what I was satisfied were the
circumstances in which he committed the seventh act of misconduct.
1864 Although I was satisfied the fourth act of misconduct, as particularised, was
established by Mr Macdonald’s provision of Wiles Map 2 in breach of his duty
of impartiality, I was unable to make any finding that Wiles Map 1 was
produced at the second Wentworth Hotel meeting on 7 July 2008, or at any
other time during the currency of the conspiracy, despite it being found with
Wiles Map 2 and other documents in an envelope in Paul Obeid’s office on
execution of a search warrant at the Locaway P/L premises on 23 November
2011. That fact did not disturb my finding that the fourth act of misconduct was
established.
1865 With respect to the seventh act of misconduct, I was further satisfied that within
two days of the use to which Wiles Map 2 was put by Moses Obeid (and his
brother Paul Obeid) at the second Wentworth Hotel meeting on 7 July 2008, Mr
Macdonald provided or caused to be provided to Moses Obeid a list of the
companies (or the identity of those companies) the DPI was considering as
potential invitees to the EOI process. I was satisfied that was a further act of
misconduct, on this occasion committed in wilful breach of Mr Macdonald’s
duties of confidentiality and impartiality and for the improper purpose of
advancing the private interests of the Obeid family. I also found that the “but
for” test was satisfied. Those findings established the commission of the
seventh act of misconduct.
1866 I was also able to make a further factual finding as to Mr Macdonald’s purpose
in providing Wiles Map 2 and the list of companies, in light of my earlier
findings that, at least by the time he introduced Mr Fang to Moses Obeid by the
end of June 2008, he knew that the Obeids were pursuing a mining deal with a
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suitable mining company or investor in respect of what, by that time, Mr

Macdonald had every reason to expect would ultimately be the inclusion of
Mount Penny (encompassing at least Cherrydale Park, if not the neighbouring
properties of Donola and Coggan Creek) as a new coal release area in an EOI
process for the granting of an EL. Mr Macdonald’s engagements with the DPI
from mid-June 2008, as the Information Package for the public launch of that
process was prepared, exemplified that fact.
1867 Finally, I was satisfied that the eighth act of misconduct, as particularised, was
established. That entailed me finding that Mr Macdonald caused Schiavo Map
3 and a page with the heading “Medium Coal Allocation Areas” to be provided
to Moses Obeid on or after 23 July 2008 and before 22 September 2008 (when
both documents, or the information in them, were in Mr Brook’s possession) in
breach of his duty of impartiality and in breach of his duty of confidentiality for
the same improper purpose and that the “but for” test was satisfied for that
reason.
1868 Upon reviewing that compendious body of evidence, and the factual findings I
have made based upon that evidence, I reached a point of satisfaction that
between 9 May 2008 (when the first act of misconduct was committed) and, at
the earliest 23 July 2008 and at the latest 22 September 2008 (when the eighth
act of misconduct was committed), in his capacity as Minister for Mineral
Resources, Mr Macdonald wilfully committed five discrete and related acts of
misconduct in breach of his duties and obligations of impartiality and
confidentiality for the improper purpose alleged, and that each act of those acts
of misconduct satisfied the “but for” test.
1869 As I have stated repeatedly, within that timeframe there are extended periods
of weeks where there are no proven acts of wilful misconduct committed by Mr
Macdonald referable to the way the Crown has sought to prove its case in the
Revised Statement of Particulars.
1870 To be precise, and confining myself to the way the Crown sought to prove the
existence of the conspiracy by inference from Mr Macdonald’s acts of
misconduct, I have found no acts of wilful misconduct were committed by Mr
Macdonald between 14 May 2008, when the second act of misconduct was
5KIPGFD[#WUV.++
committed, and 7 July 2008, by which date I was satisfied the fourth act of
misconduct had been committed.
1871 However, as I have also stated repeatedly, I was satisfied that Mr Macdonald
relayed information to either or both of Edward Obeid or Moses Obeid after the
6 June 2008 meeting concerning, at that time, the potential creation of a coal
release area in the area of Mount Penny, and after the 16 and 17 June 2008
meetings when that area was designated for inclusion in the EOI process for
the grant of an EL. I am also satisfied that Mr Macdonald conveyed that
information to assist his alleged co-conspirators (and/or their family and
associates) to exploit the fact that land that he knew Edward Obeid had
acquired in the Bylong Valley near Mount Penny had a potentially valuable coal
resource underneath it, and to allow them to exploit the fact that that resource
(and the likelihood of coal resources underneath the adjacent properties) would
be released for coal exploration following an EOI process for the grant of an
EL.
1872 To repeat, again for emphasis, I did not find that Mr Macdonald’s sharing of
that information constituted a wilful act of misconduct from which the existence
of the conspiracy might be inferred. The Crown did not advance the case that I
should. I was, however, satisfied that the evidence was probative of the Crown
case in other ways, including by providing the context in which the fourth,
seventh and eighth acts of misconduct were committed.
1873 In resolving the critical question whether I am satisfied that Mr Macdonald’s

commission of each of the first, second, fourth, seventh and eighth acts of
misconduct were acts committed in furtherance of a conspiracy that was in
existence by no later than 9 May 2008 (both by reference to the evidence
bearing directly upon proof of those acts and by the combined weight of that
evidence and the various allied factual findings I have made), it is necessary to
reflect on the nature of the agreement the Crown seeks to prove as
fundamental to that fact beyond reasonable doubt.
1874 As the Crown made clear in the course of the trial, the indictment upon which
the accused were ultimately arraigned alleges a conspiracy that was framed in
order to make it clear that the case the Crown had resolved to prosecute at trial
5KIPGFD[#WUV.++
was not that the accused agreed that Mr Macdonald would commit separate
acts of misconduct of a discrete kind or character or in any particular
sequence, or, for that matter, that they agreed Mr Macdonald would wilfully
misconduct himself as the Minister for Mineral Resources to achieve the
discrete objective that an EL would be granted at Mount Penny by a particular
time, or at all. It is also clear from the framing of the indictment that the
agreement did not contemplate that Mr Macdonald would arrange for or ensure
that an EL would be granted at Mount Penny or that he would do anything, in
particular, to achieve that objective.
1875 I also remind myself that in the course of argument directed to the challenge by
the accused to the indictment as framed, and in the course of argument in the
trial more generally as to the way the indictment was framed, the Crown
advanced and maintained the submission that the indictment was framed to
reflect the fact that the Crown sought to prove the guilt of each of the accused
on the basis that, as at 9 May 2008 when the first act of misconduct was
committed, there was no EL at Mount Penny under consideration by the DPI. In
fact, there was no designated coal release area in the Bylong Valley at all over
which the DPI was actively considering that an EL might be applied for or
granted under the statutory regime in the Mining Act at that time.
1876 The Crown urged me to approach the question whether I was satisfied of the
guilt of the accused beyond reasonable doubt on the basis that the case
prosecuted at trial was that each of the accused agreed, at least as and from 9
May 2008, that Mr Macdonald as Minister for Mineral Resources would do what
he could, if and when the opportunity presented in connection with the granting
of an EL at Mount Penny and in connection with the interests of Edward Obeid,
and/or Moses Obeid and/or their family and/or associates for the improper
purpose of advancing their interests and, as comprehended by that agreement,
that he agreed to act in that way, knowing he would wilfully breach his
Ministerial duties and obligations of impartiality and/or confidentiality without
reasonable cause or excuse.
1877 Accordingly, I consider it implicit in the way the indictment was ultimately
framed and explicit in the way the Crown sought to prosecute its case at trial,
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that the object of the unlawful agreement was intentionally described at that
level of generality, in contrast to the acts of misconduct carefully particularised
in the Revised Statement of Particulars to provide what the Crown submitted
was a sound evidential basis upon which I would find the existence of the
conspiracy proved to the criminal standard by a process of inferential
reasoning.
1878 The stark question remains, however, whether I am satisfied beyond

reasonable doubt that the unlawful agreement of the scope and object alleged
in the indictment was an agreement that was forged on or before 9 May 2008
since, as is clear as a matter of law, it is only if I am satisfied of that fact
beyond reasonable doubt that I need to consider whether that is the agreement
in which each of the accused agreed to participate as at that date.
1879 In reviewing again all the evidence that I have extensively analysed in my
deliberations concerning that question, and after taking into account and giving
full weight to finding that the first, second, fourth, seventh and eighth acts of
misconduct as particularised are established and, further, after taking into
consideration the events the subject of the meetings on 6, 16 and 17 June
2008 and what I am satisfied Mr Macdonald communicated to either or both of
Edward Obeid and Moses Obeid about the outcome of those meetings as part
of the complex of evidence I took into account in ultimately determining that the
five acts of misconduct, as particularised, were established, I am ultimately
satisfied beyond reasonable doubt they were all acts of misconduct committed
by Mr Macdonald in furtherance of the specific conspiracy alleged.
1880 Although I am unable to determine when the agreement was reached, or the
circumstances in which it was reached, including the time or place when that
occurred or what was discussed at that time, I am satisfied the Crown has
proved the existence of the conspiracy charged on the indictment beyond
reasonable doubt having regard to all the facts I have found proved and the
inferences drawn from those facts. That is, I am satisfied, and beyond
reasonable doubt, that the agreement of the scope and object alleged by the
Crown, and framed in the terms of the conspiracy charged on the indictment,
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was in existence when the first act of misconduct was committed by Mr

Macdonald on 9 May 2008.
1881 In making that finding, I have given careful consideration to whether there is
any competing explanation for the five successive acts of wilful misconduct I
have found established, including the context in which I am satisfied those acts
of misconduct were committed. I have also considered whether there is any
competing explanation for what I am satisfied Moses Obeid did in his
deployment of the information Mr Macdonald provided to him or to his father, in
particular the information the subject of the fourth, seventh and eighth acts of
misconduct. Although those three acts of misconduct, considered individually,
may admit of other explanations for their commission (even other criminal
conduct in which either or both of Edward Obeid or Moses Obeid may have
participated), when the full weight of the available evidence is considered,
including the evidence that established Mr Macdonald’s commission of the first
and second acts of misconduct, I am satisfied beyond reasonable doubt that
the conspiracy the Crown charged in the indictment and prosecuted at trial was
formed on or before 9 May 2008.
Money and motivation

1882 It is the Crown case that after the full complement of the evidence is reviewed
and scrutinised, and after it is accorded the full weight it deserves, in particular
the probative weight of the evidence establishing Mr Macdonald’s successive
acts of misconduct as Minister for Mineral Resources committed in connection
with the granting of an EL at Mount Penny and the financial benefit the Obeid
family derived from the granting of the EL to Cascade Coal P/L after the
conspiracy had been fully executed, I will be satisfied that there remains no
reasonable explanation for the conduct of each of the accused other than that
they acted, in concert, with the shared intention that Mr Macdonald would
knowingly breach his Ministerial duties and obligations and for the improper
purpose of advancing their financial interests and/or those of their family and/or
associates.
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The financial motives the Crown attributes to Edward Obeid and Moses Obeid
1883 The Crown attributes a financial motive to each of the accused Edward Obeid
and Moses Obeid for agreeing to participate in the conspiracy alleged.
Consistent with fundamental principles of criminal liability, the attribution of
motive to either or both of Edward Obeid or Moses Obeid for participating in
the conspiracy is not to be confused with the Crown’s obligation to prove that at
the time they agreed to enter into the conspiracy, they each knew and intended
that Mr Macdonald would commit misconduct in the office he held as Minister
for Mineral Resources by doing acts in connection with the granting of an EL at
Mount Penny for the improper purpose of benefitting them and/or their family
and/or associates, acts which he and they knew would be committed by him
wilfully in breach of his Ministerial obligations of impartiality and/or
confidentiality without reasonable cause or justification.
1884 Similarly, the attribution of a motive to Mr Macdonald for agreeing to participate

in the conspiracy is also not be confused with the Crown’s obligation to prove
that at the time he intentionally entered into the conspiracy, he agreed with at
least one of Edward Obeid or Moses Obeid that he would wilfully misconduct
himself as Minister for Mineral Resources with the same object and for the
same improper purpose.
1885 While the Crown is not obliged to prove what motivated any of the accused to
agree to intentionally participate in the conspiracy, much less to any standard
of proof, the Crown attributed to Edward Obeid and Moses Obeid, as
landowners, financial motives in their pursuit of exploiting the value of the coal
resource underlying Cherrydale Park. The Crown submitted those motives are
patent, not only from the nature of the agreement into which each of Edward
Obeid and Moses Obeid agreed to enter, but what they each did in furtherance
of achieving the object of the conspiracy.
1886 On the Crown case, those financial motives derive elementally from what each
of Edward Obeid and Moses Obeid anticipated would be the potential value to
them (and/or their family and/or associates) in Mr Macdonald agreeing to act in
connection with the granting of an EL at Mount Penny, for the improper
purpose of generating for them and/or their family and/or associates a financial
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benefit in the event that an EL was granted over land they owned and over
land they arranged for their friends or associates to acquire.
1887 In proof of that aspect of its case, the Crown relied in very large part upon Mr
Brook’s dealings, first with Monaro Mining NL from July 2008 and then, after Mr
Grigor’s departure from Monaro Mining NL, with Cascade Coal P/L. The Crown
also relied, again in very large part, upon Mr Brook’s evidence that he was
acting at all relevant times responsive to the way in which Moses Obeid wanted
the arrangements with each of the mining companies to be structured, to
ensure that his family (and his friends and associates) were at all times in a
position of high leverage in their contractual dealings to ensure the maximum
financial return to them.
1888 The Crown accepted that, at the time they entered into the agreement, none of
the three accused could have known the quantum of the profit that would be
ultimately generated from those structured arrangements. Nevertheless, the
Crown submitted that the very fact and scope of the unlawful object of the
agreement, and the various ways Edward Obeid and Moses Obeid have been
shown to have participated in it, with Moses Obeid, either by design or by
aptitude, acting in more overt ways than his father, is patent evidence that they
were both motivated to enter into the conspiracy with Mr Macdonald (and with
each other) by the prospect of a significant financial return, however
speculative that was when the agreement was forged when there was no area
at Mount Penny under consideration for release as a coal exploration area.
The accused’s submissions concerning motive

1889 Mr Neil advanced detailed submissions 2063 seeking to persuade me of the
reasonable possibility that the various contractual and other arrangements in
which Moses Obeid was directly involved from July 2008 2064 were a series of
ordinary commercial transactions unrelated to the conspiracy alleged. Mr Neil
also submitted that Moses Obeid’s various contractual dealings (which he
submitted only commenced in earnest from 3 July 2008 upon Mr Selby’s
2063
MFI 192 Schedule D.
2064
Both preliminary to the first conference he had with Mr Rumore on 30 June 2008 (preceded by a
conference on 23 June 2008 in which only his brothers Gerard Obeid and Paul Obeid were directly involved) in
which Mr Rumore’s advice was sought about, inter ali a, the prospects of a mining deal, and extending to his
dealings with Cascade Coal P/L from 2009 onwards.
5KIPGFD[#WUV.++
introduction of Mr Brook) were themselves highly speculative, indeed risk-

laden, despite what Mr Neil accepted was the enthusiasm and optimism Moses
Obeid expressed in his dealings with Mr Brook that an EL would be granted at
Mount Penny, and his strong belief that there would be an exploitable coal
resource to be realised by the entity granted an EL at Mount Penny.
1890 Mr Neil also submitted that I would have very grave doubts about Mr Brook’s
credibility for a range of reasons and, that being the case, I would not accept
his evidence that Moses Obeid was at all times driving the dealings with the
mining companies for the purposes attributed to him by the Crown, as distinct
from Mr Brook having his own venal agenda for the interpositional role he
assumed.
1891 Finally, Mr Neil submitted that the fact that by September/October 2008 Moses
Obeid (apparently with the concurrence of his brothers) had allowed the two
options held by Geble P/L over Coggan Creek to lapse, in circumstances
where, as Mr Rumore was instructed, they were unable to find an investor until
Mr Lewis was introduced, tells strongly against the conspiracy and what the
Crown attributes to Moses Obeid (and Edward Obeid) as the financial motives
for their participation in it. Mr Neil submitted that I would accept that the Obeids
were a very wealthy family with ample funds to purchase Coggan Creek to
secure for the family the benefit of holding that property and Donola, rather
than to divide the profits with others upon learning that the EL at Mount Penny
encompassed, or would be likely to encompass, all three properties.
1892 Each of those submissions was deserving of careful consideration. However, in

light of the various factual findings which culminated in me being satisfied of
the existence of the conspiracy alleged proved beyond reasonable doubt, and
in light of the factual findings I propose to make in considering whether Moses
Obeid’s participation in the conspiracy alleged is also proved beyond
reasonable doubt, it will be clear that Mr Neil’s submissions have no ultimate
traction in raising a reasonable doubt as to Moses Obeid’s guilt.
The motives the Crown attributed to Mr Macdonald
1893 The Crown attributed to Mr Macdonald what it described as a more nuanced

set of motives for what might have persuaded him to agree to commit
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misconduct in the public office he held as Minister for Mineral Resources for
the improper purpose of financially benefitting his co-accused and/or their
family and/or their associates. Those motives include the repayment of a debt
of gratitude Mr Macdonald was said to have owed to Edward Obeid for his
political patronage over the years. The Crown also submitted it was open to me
to find that by Mr Macdonald agreeing to enter into the conspiracy in his last
term of office, and at a time when I would be satisfied he was subject to
personal financial pressures,2065 he may have been motivated by the hope or
the expectation of receiving a financial benefit (presumably by way of a
gratuity) were the EL at Mount Penny granted, and were the Obeids successful
in deriving substantial profits from owning land within the coal release area.
Mr Martin’s submissions on the question of motive

1894 Mr Martin submitted that the Crown was forced to attribute motives to Mr
Macdonald cast entirely on the basis of speculation, since no evidence was
adduced in the trial that Mr Macdonald derived any tangible benefit from the
Obeids or the companies or entities they controlled at any time or that he
sought to do so. That being the case, Mr Martin submitted I would have grave
doubts that Mr Macdonald would have agreed to wilfully misconduct himself in
the public office he held as Minister for Mineral Resources at all, even less for
the improper purpose of benefiting others from whom he had no promise of
reward and from whom he derived no reward.
1895 Those submissions were also deserving of careful consideration. However, in

light of the factual findings I have made in finding the existence of the
conspiracy proved beyond reasonable doubt, including but not limited to finding
that Mr Macdonald committed five successive acts of wilful misconduct
between May and September 2008, Mr Martin’s submissions have no traction.
1896 Having found the existence of the conspiracy proved beyond reasonable doubt,
I have resolved to treat the issue of motive of secondary significance in
resolving whether I am satisfied beyond reasonable doubt of the participation
of each of the accused in that conspiracy. In the event that I am satisfied that
there is either overwhelming evidence of the participation of each of the
2065
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 5) [2019] NSWSC 1489
5KIPGFD[#WUV.++
accused in the conspiracy (a conclusion that is inevitable so far as Mr

Macdonald is concerned, having regard to the way the indictment is framed,
the way the Crown has particularised its case and the finding I have made in
finding the conspiracy proved beyond reasonable doubt) Edward Obeid and
Moses Obeid’s motives in agreeing to participate with Mr Macdonald in the
conspiracy, even if their motives can be discerned, are likely to add little
additional weight to proof of that fact.
1897 Although I propose to treat the issue of motive in that way, before turning to
consider whether I am satisfied that each of Edward Obeid and Moses Obeid
participated in the conspiracy, I propose to deal with a discrete aspect of the
evidence relied upon by the Crown to prove the participation of each of Edward
Obeid and Moses Obeid beyond reasonable doubt.
1898 It is the Crown case that Edward Obeid and 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. It is also the Crown case that Moses
Obeid sought to distance his family from the ownership of the adjacent
properties Donola and Coggan Creek and that I would find, as a matter of
overwhelming inference, that he did so with the knowledge and encouragement
of Edward Obeid as a co-conspirator.
Change of ownership of Cherrydale Park

1899 Cherrydale Park was purchased in September 2007 by Locaway P/L as trustee
for the Moona Plains Family Trust.2066 As at the date of settlement, the identity
of the purchaser remained unchanged.
1900 As noted earlier, the Moona Plains Family Trust was settled by a Trust Deed
executed by Locaway P/L as trustee on 25 October 1994.2067 The primary
beneficiaries under the trust were each of Edward Obeid’s sons: Damian
Obeid, Paul Obeid, Moses Obeid, Gerard Obeid and Edward Obeid Jr.
Discretionary beneficiaries include the primary beneficiaries and their parents,
children, siblings and spouses. Edward Obeid was the appointer.
2066
Under the Trust Deed, Edward Obeid was named as the appointer.
2067
5KIPGFD[#WUV.++
1901 Of the two shares Locaway P/L issued as trustee of the Moona Plains Family
Trust, one was held by Paul Obeid and the other by the Obeid Corporation P/L
as trustee for the Obeid Family Trust No 1.2068
1902 In an interview with journalists, Mr Shanahan and Ms Jiminez, on 18 December

2012, Locaway P/L was described by Moses Obeid, in Edward Obeid’s
presence, as his family’s “rural property entity [through which] we had
purchased all of our rural properties”. On that occasion, Moses Obeid went on
to say:
If there was anything that was meant to be secretive about us buying

Cherrydale Park or we had some prior knowledge, why would of all entities
you would go and buy it in your main family rural company… my mother, my
brothers were all directors of the company.2069
1903 It is the Crown case that initially in October 2008 (during the currency of the
conspiracy) and then again in February and March 2009 (after the conspiracy
had been fully executed) Edward Obeid made various attempts, through his
solicitors, to change the legal ownership of Cherrydale Park to create
“distance” between his family’s ownership of land within the Mount Penny Coal
Release Area, including divesting or attempting to divest Locaway P/L of its
legal ownership of Cherrydale Park.
1904 It is the Crown case that Edward Obeid took those steps fully aware that
Moses Obeid had been successfully and progressively implementing the
strategy of controlling Monaro Mining NL’s bid for the Mount Penny EL. The
Crown relies on those steps as having been taken by him in furtherance of the
conspiracy and, in that way, as a source of evidence of his participation in the
conspiracy.
The appointment of UPG P/L as the new trustee company for the Moona Plains
Family Trust
1905 The various attempts to change the legal ownership of Cherrydale Park
between October 2008 and March 2009 included the proposed appointment of
UPG P/L as the new trustee company for the Moona Plains Family Trust, of
2068
Exhibit B.
2069
5KIPGFD[#WUV.++
which Moses Obeid and his brothers were primary beneficiaries and Edward
Obeid was appointor.2070
1906 UPG P/L, (then called Kingsleys Chophouse P/L) was registered in September
2007.
1907 On 14 February 2008, in a letter to Edward Obeid, Mr Cordato, the solicitor

who acted for Locaway P/L on the purchase of Cherrydale Park, advised “we
refer to our telephone conversation and confirm that you desire to appoint UPG
P/L as the new trustee of the [Moona Plains Family Trust] to replace Locaway
P/L” (emphasis added).2071
1908 On 15 February 2008, the shares in Kingsleys Chophouse P/L, later renamed
UPG P/L, were transferred to Mr Kaidbay, an associate of the Obeids, who was
also appointed as its sole director.2072
1909 In an unexecuted Deed of Appointment of New Trustee also dated 15 February

2008, Edward Obeid, as Appointor of the Moona Plains Family Trust, removed
Locaway P/L as Trustee and appointed UPG P/L as Trustee.2073 This proposed
change was also reflected in a draft application to record new registered
proprietors, also unexecuted.2074
1910 Mr Cordato’s letter of 14 February 2008 was attached to an email sent by Mr

Cordato to Mr Sassine (a chartered accountant who acted from time to time on
behalf of members of the Obeid family including on behalf of the Obeid Family
Trusts 1 and 22075) on 15 October 2008 responsive to a request from Mr
Sassine that Mr Cordato attend to changing the trustee of the Moona Plains
Family Trust.2076
1911 The nature of Mr Sassine’s dealings with members of the Obeid family and
from whom he obtained or sought instructions were the subject of limited
evidence in the trial.2077 Mr Sassine did not give evidence. I note, however, that
2070
Exhibit B.
2071
Exhibit A p 2207.
2072
Exhibit C.
2073
2074
2075
Pre-trial tender bundle pp 5749-5755.
2076
2077
5KIPGFD[#WUV.++
on 26 September 2007, the day before the purchase of Cherrydale Park, a

handwritten entry in Edward Obeid’s diary recorded the name “Sid Sassine” 2078
and on 1 April 2008, a handwritten entry in Edward Obeid’s diary read “ring Sid
Sassine re Tony”,2079 the readily available inference being that was a reference
to Mr Cordato.
1912 In order for UPG P/L to be appointed as the new trustee company, the
assignment of the first registered mortgage to the Cherry Superannuation Fund
from Locaway P/L to UPG P/L was necessary, requiring the consent of Mr
Cherry on behalf of the Cherry Superannuation Fund as mortgagee.
1913 On 2 October 2008, Mr Sassine sent an email to Mr Cordato attaching the

Trust Deed of the Moona Plains Family Trust and instructing Mr Cordato that
the new trustee as from February 2008 should be UPG P/L, and the sole
director Mr Kaidbay.2080
1914 On 15 October 2008, Mr Cordato sent a letter to Langes Lawyers (solicitors for
Mr Cherry) requesting “the mortgagee’s consent to the substitution of United
Pastoral Group Pty Ltd [as the trustee for the Moona Plains Family Trust] for
Locaway Pty Ltd as mortgagor and registered proprietor of [Cherrydale
Park]”.2081 The letter further stated the following:
We are instructed that our client has spoken to your client concerning this
request, and that the substitution has been agreed to in principle, subject to
documentation.2082 (Emphasis added).
1915 In the body of the letter, Mr Cordato indicated that two documents entitled
“Application to Record New Registered Proprietor” and “Deed of Appointment
of New Trustee” were enclosed.2083
1916 In a further letter to Langes Lawyers dated 9 February 2009, Mr Cordato wrote:
We refer to our telephone discussion this morning and confirm that our client
desires to proceed without delay to record the appointment of United Pastoral
Group Pty Limited as the new trustee of the Moona Plains Family Trust on the
title to the property.
2078
Exhibit A p 161.
2079
Exhibit A p 725.
2080
Exhibit A p 2205.
2081
Exhibit A p 2257.
2082
Exhibit A p 2257.
2083
These documents do not appear in Exhibit A, however, further reference is made to them in Mr Cordato’s
further letter dated 9 February 2009 which appears at Exhibit A p 3365.
5KIPGFD[#WUV.++
We confirm that we now hold the documents enclosed under cover of our letter
to you of 15 October, 2008, duly executed.
Subject to your clients’ instructions, we would be pleased if you were to submit
an Acknowledgement of Debt for the new trustee to execute and advise your
other requirements by return.2084
1917 In a letter to Cordato Partners dated 12 February 2009, Richard Joice, Partner
at Langes Lawyers, wrote:
John Cherry has confirmed that Mr Eddie Obeid has spoken to him in regard
to changing the trustee of the Moona Plains Family Trust. However, he had
indicated to Eddie Obeid that the reasons for the change would need to be
provided before the request would be considered.
…
Subject to your confirming the purpose behind the change of trustee to the
satisfaction of our client mortgagee, we shall prepare and submit a Deed for
execution by your clients.2085
1918 On 3 March 2009, after Mr Cherry was informed on 16 February 2009 by Mr
Cordato that the assignment was “to protect the privacy of our clients” and that
UPG P/L “was a nominee company which has been incorporated for that
purpose”,2086 a Deed of Consent to Assignment of Mortgage between Mr and
Mrs Cherry (mortgagee), Locaway P/L (assignor), UPG P/L (assignee) and the
beneficiaries of the Moona Plains Family Trust (guarantor) was partially
executed on behalf of Locaway P/L by Paul Obeid and Damian Obeid, on
behalf of UPG P/L by Mr Kaidbay and by Moses Obeid and his brothers as
guarantors as beneficiaries under the Moona Plains Family Trust. 2087 The Deed
of Consent and an Application to Record New Registered Proprietor signed by
Mr Kaidbay2088 were forwarded to Mr Cherry’s solicitors.2089
1919 On 6 March 2009, Mr Cherry’s solicitors advised that he was not prepared to
agree to the change of trustee.2090 Accordingly the Deed of Consent to
Assignment of Mortgage was unexecuted and ineffective.
2084
2085
Exhibit A p 3399.
2086
Exhibit A p 3409.
2087
2088
Exhibit A p 3537.
2089
Exhibit A p 3529.
2090
Exhibit A p 3557.
5KIPGFD[#WUV.++
1920 Mr Cherry gave evidence that he spoke to Edward Obeid about the reason he
wanted to change the ownership of Cherrydale Park. Mr Cherry gave the
following evidence:
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.2091 (Emphasis added.)
1921 In cross-examination by Ms Francis, Mr Cherry gave the following evidence
referable to his statement of 7 July 2014:
Q. It is not the case, is it, that Mr Obeid said to you that he was in fact
interested in coal?
A. He wasn’t - I don’t know what Mr Obeid was involved in at the time,
because he didn't want his family to be connected with coalmining. It was all
negative, as I said, I am sure, and that “we are really against coalmining in the
Bylong Valley”.
…
Q. Yes, and is it the case that Mr Obeid conveyed to you that he didn’t want
his name associated with coalmining in the Bylong Valley?
A. That’s right. 2092
1922 Notwithstanding that state of affairs, Locaway P/L and UPG P/L continued to
act as if the transfer of legal ownership of Cherrydale Park had been legally
affected, as evidenced in a number of Deeds, many of which are in draft,
principal among them a Call Option Deed executed on 5 January 2009 by
Moses Obeid and Damian Obeid for Locaway P/L and Mr Kaidbay for UPG
P/L.2093 On the Crown case that Call Option Deed was designed to ensure that
the anticipated and significant profit on the sale of Cherrydale Park to Cascade
Coal P/L under the Letter of Agreement between Cascade Coal P/L, UPG P/L,
Geble P/L and Justin Kennedy Lewis P/L dated 5 June 2009 (which would
have seen Cherrydale Park transferred to Cascade Coal P/L at a multiple of
four times its value) devolving to Locaway P/L since, if the sale of Cherrydale
Park had come to pass under the Call Option Deed, UPG P/L would have been
obligated to pay to Locaway P/L the purchase price (as defined in the Call
2091
T 483.
2092
T 485-486.
2093
5KIPGFD[#WUV.++
Option Deed) of $5 million plus 50% of any figure over $5 million (which was
$12 million) within ten years of the Call Option being exercised.2094
1923 In the Crown’s submission, these various documents, apparently drawn in

anticipation of Mr Cherry’s consent as mortgagee to the transfer of legal
ownership of Cherrydale Park to UPG P/L, are what underpinned instructions
from Moses Obeid on 6 November 2008 2095 and from Gerard Obeid on 7
November 20082096 to Mr Rumore to draft two agreements (detailed below).
Both of those agreements ultimately named UPG P/L as a contracting party,
reinforcing, in the Crown’s submission, the inference that Moses Obeid and
Edward Obeid were motivated to ensure that the anticipated benefits that
would flow to them and their family members and associates from their
coordinated misuse of the information Mr Macdonald had provided to them
would not be lost and that their ownership and effective control of the three
rural properties within the boundaries of the Mount Penny Coal Release Area
would not be exposed, thereby ensuring that their participation in the
conspiracy would not be revealed.
The Tripartite Landowners Deed

1924 The first of two agreements drafted by Mr Rumore was a Landowners Deed.
That Deed, as ultimately executed, provided that the owners of Cherrydale
Park (stated to be UPG P/L), Donola (Geble P/L) and Coggan Creek (Justin
Kennedy Lewis P/L), agree to sell the nominated properties to the mining
company (defined as the entity which is granted a coal EL (over land)
incorporating the properties), at a multiple of at least four times the value of
each property. The Deed also provided that one representative of the
landowners is to negotiate with the mining company for the sale of the
properties.
1925 The Landowners Deed passed through various drafts. In the first draft, dated
11 November 2008,2097 Locaway P/L was named as a party and as the
2094
Exhibit A p 3180.
2095
T 2012-3; Exhibit Q p 2446.
2096
2097
5KIPGFD[#WUV.++
registered proprietor of Cherrydale Park. In the second draft, dated 8

December 2008,2098 UPG P/L was named as a party in the same capacity.
1926 The second draft included a new clause which provided that:
UPG has disclosed, prior to the date of this document, to the Owners [of the
three properties] that UPG will enter into a consultancy agreement with the
Miner and will receive compensation and remuneration for such consultancy
arrangement which will be separate from the Mining Interests [an interest in or
granted by the Miner to the parties to the Landowners Deed in consideration of
the sale of the Properties by the parties to this document to the company
granted the exploration licence or other mining interests]. No Owner will object
to or have any claim to any benefits of this consultancy arrangement involving
UPG.2099
1927 That clause was included subject to instructions from Gerard Obeid 2100 and
was retained in the document which was ultimately executed. 2101
1928 In the final, partially executed version of the Deed, dated 15 December
20082102 (but on the Crown case likely to have been partially executed on or
about 10 March 20092103), UPG P/L was named as Trustee.2104 Mr Kaidbay
was named as the parties’ representative, replacing Paul Obeid who had been
nominated in that role in the previous drafts.
The Profit Sharing Deed

1929 The second agreement prepared by Mr Rumore was a Profit Sharing Deed.2105
Two drafts were prepared by Mr Rumore.2106 A fully executed version of that
agreement did not form part of the evidence at trial.2107
1930 Under the Profit Sharing Deed, upon the sale of Coggan Creek to Monaro Coal
P/L (in the event it was granted the EL), Justin Kennedy Lewis P/L agreed to
pay UPG P/L 30% of the profit generated by the sale as a fee.
2098
2099
Exhibit A p 2971 - Mr Rumore was not asked about that clause. I note there is a reference to the Option
Deed in which consideration was ultimately defined as $100 consultancy.
2100
Exhibit Q p 2964.
2101
Exhibit A p 3084.
2102
2103
Exhibit A p 3565.
2104
2105
2106
Exhibit A pp 2749-2759, 2979-2989.
2107
T 52.
5KIPGFD[#WUV.++
1931 The second draft of the Profit Sharing Deed included a new clause providing
that:
[UPG P/L] has disclosed, prior to the date of this document, to Coopers that
the Company will enter into a consultancy agreement with Monaro [if Monaro
is granted the Mining Concession], and will receive compensation and
remuneration for such consultancy arrangement, which will be separate from
the Fee. Coopers will not object to or have any claim to any benefits of this
consultancy arrangement involving [UPG P/L].2108
1932 Again, that clause was included subject to instructions from Gerard Obeid. 2109
1933 I note that the name of Coopers World P/L was changed to Justin Kennedy
Lewis P/L on 10 November 2008.2110
1934 I also note Moses Obeid’s ongoing role in reviewing the draft agreements. In a
conference held on 8 December 2008, Gerard Obeid advised Mr Rumore that
UPG P/L was the “new trustee” to replace Locaway P/L as owner of Cherrydale
Park.2111 That change was reflected in the draft of the Landowners Deed
prepared by Mr Rumore later that day.2112 In an email copied to Moses Obeid
following that conference, Mr Rumore requested that Gerard Obeid “go through
the changes” reflected in the second draft of the Landowners Deed and the
Profit Sharing Deed and “confirm with your brothers that these are
acceptable”.2113 Those changes were apparently approved prior to the
production of the final versions of the Landowners Deed and the Profit Sharing
Deed.
1935 The Crown relied on these documents as evidence of the steps taken by
Moses Obeid to ensure the landowners (identified in Mr Rumore’s file note of
22 September 2009 as the “Obeid”, “Justin Lewis” and “Triulucio” (sic)
interests2114) were united in their negotiation with a mining company for
maximum financial return, and the (unexecuted) Profit Sharing Deed a source
of evidence as to the circumstances in which Mr Lewis purchased Coggan
Creek.
2108
Exhibit A p 2985.
2109
Exhibit Q p 2964.
2110
Exhibit A p 2769.
2111
Exhibit Q p 2963.
2112
2113
Exhibit A p 2991.
2114
Exhibit Q p 4603.
5KIPGFD[#WUV.++
Moses Obeid’s further role in distancing the Obeid family from ownership of
Cherrydale Park
1936 It is the Crown case that Moses Obeid also attempted to conceal his family’s
ownership of Cherrydale Park through the interposition of Mr Kaidbay and UPG
P/L and by his insistence in Mr Brook’s dealings with Monaro Mining NL that he
preserve the Obeid family’s anonymity as the landowners.
1937 The Crown also relied upon correspondence between Mr Kaidbay, on behalf of
UPG P/L, and Moses Obeid, on behalf of Locaway P/L, as evidence of Moses
Obeid’s attempts to distance his family from ownership of Cherrydale Park in a
series of “constructed” letters.
1938 As stated above, Mr Kaidbay was the appointed director and sole shareholder
of UPG P/L from 15 February 2008.2115
1939 On 7 October 2008, in a letter to Locaway P/L (addressed “Dear Sir”), Mr

Kaidbay, on behalf of UPG P/L, proposed that UPG P/L enter into a put and
call option for the purchase of Cherrydale Park for a 12-month period for $4.5
million with an option fee of $45,000. Mr Kaidbay expressed confidence that
“you will find our offer acceptable” and sought a response “as a matter of
urgency”.2116 As at that date, Damian Obeid, Paul Obeid, Moses Obeid and
Edward Obeid Jr were the Directors of Locaway P/L.2117
1940 On 10 October 2008, in a letter sent to UPG P/L on Locaway P/L letterhead,
Moses Obeid acknowledged receipt of the offer to purchase Cherrydale Park
and reported he had spoken with “[his] brothers” and that “our family” would be
prepared to sell Cherrydale Park for $5 million.2118 The letter included the
following:
As discussed with you and your colleague Mr Brook, Cherrydale Park was
purchased as a family retreat with the view of having the property being able to
pay for itself through cattle and lucerne hay operations. We have committed
considerable funds to establishing these operations. 2119
2115
Exhibit C.
2116
Exhibit A p 2131.
2117
Exhibit C.
2118
Exhibit A p 2149.
2119
Exhibit A p 2149.
5KIPGFD[#WUV.++
1941 On 13 October 2008, in a letter to Locaway P/L (addressed “Dear Moses”), Mr

Kaidbay confirmed UPG P/L would enter into a put and call option for the
purchase of Cherrydale Park at a purchase price of $5 million purporting to
“understand and respect [the Obeid] family’s position”.2120
1942 Not only did Mr Brook give evidence that he was not involved as a colleague of
Mr Kaidbay in negotiations for UPG P/L to purchase Cherrydale Park but, as is
obvious from other evidence in the trial which I accept, Cherrydale Park was
not by this date a family retreat paying its way through cattle and crop farming.
It was a property that was contemplated would ultimately be sold for its value to
a mining company.
1943 I am in no doubt that this correspondence was designed to give the

appearance of an arm’s length transaction2121 whereas it was in truth a
construct to attempt to distance the Obeid family from the direct ownership of
Cherrydale Park through the interposition of UPG P/L as Trustee for the Moona
Plains Family Trust.
1944 It was also the Crown case that Mr Kaidbay was used by Moses Obeid as a
“frontman” for UPG P/L and for other companies he later utilised as he sought
to capitalise on the various benefits the Obeid family had received from Mr
Macdonald’s successive breaches of his Ministerial duties and obligations,
committed by him in furtherance of the conspiracy in what has been described
as the “entrepreneurial phase” of the conspiracy. They include:
(1) On 3 June 2009, Mr Kaidbay was appointed as a director of Buffalo

Resources P/L, the entity which entered into the Joint Venture
Agreement with Cascade Coal P/L.2122
(2) On 4 June 2009, Mr Kaidbay was appointed as the sole director of Loyal
Coal P/L (replacing Mr Rampe and Mr Malone from Monaro Mining NL)
as part of the dissolution of the landowners’ arrangement with Monaro
Mining NL.2123
(3) On 10 December 2009, Mr Kaidbay was appointed as director,
secretary and shareholder of Voope P/L (taking over from Mr Skehan,
the former director) although by that time Voope P/L was redundant.2124
2120
Exhibit A p 2199.
2121
MFI 181 p 117.
2122
Exhibit C.
2123
Exhibit C.
2124
Exhibit C.
5KIPGFD[#WUV.++
Moses Obeid instructed Mr Rumore of the change of directorship on

4 June 2009.2125
1945 Mr Kaidbay did not give evidence in the trial.
1946 In the Crown’s submission, whether I regard the attempts by Edward Obeid
and Moses Obeid in October 2008 to change the family’s legal ownership of
Cherrydale Park as acts done by each of them in furtherance of the conspiracy
and in that way as evidence of their participation in the conspiracy, is a matter
that falls to be considered in the context of the circumstances in which Donola
was purchased on 22 October 2008 by Geble P/L as trustee for the Elbeg Unit
Trust, and the agreement pursuant to which Coggan Creek was to be
purchased by Justin Kennedy Lewis P/L, Mr Lewis being a friend and associate
of Moses Obeid. The unit holders of the Elbeg Unit Trust, settled on 6 August
2008 with Geble P/L as trustee, were UPG P/L as trustee for the Moona Plains
Family Trust and Challenge Property Investment Group P/L as Trustee for the
Triulcio Family Trust.2126 Rocco and Ross Triulcio were business associates of
Edward Obeid and Moses Obeid.
1947 It forms no part of the Crown case that the purchase of Coggan Creek, by
Justin Kennedy Lewis P/L as trustee for the Justin Kennedy Lewis Family
Trust, was financed by Edward Obeid or Moses Obeid or any of their family
members. Neither is there any evidence that Mr Rumore, who controlled Geble
P/L as the registered proprietor of Donola on settlement (and later Mr Campo,
the Triulcios’ accountant, as the sole director and shareholder of that company)
was financed by Edward Obeid or Moses Obeid or entities associated with
them to acquire Donola, with the exception of a payment of $60,000 from the
Obeid Family Trust No 1 account on 5 August 2008 to an account in the name
of Colin Biggers and Paisley then paid from that account to an account in the
name of Elders Real Estate, the agency engaged in the sale of Donola, on 13
August 2008.2127 It is the Crown case that with the acquisition of both
properties adjoining Cherrydale Park owned or controlled by individuals or
entities who were the accused’s friends or associates, a unified approach by
them as landowners would ultimately lead to their mutual advantage under the
2125
Exhibit A p 4015.
2126
Exhibit B.
2127
Exhibit AT p 24.
5KIPGFD[#WUV.++
terms of landowners agreements, first with Monaro Mining NL and then with
Cascade Coal P/L, with a very significant dividend on the sale of the three
properties devolving to Obeid family interests through Locaway P/L (or UPG
P/L) as trustee for the Moona Plains Family Trust and through a 50% interest
as unit holder of the Elbeg Unit Trust.
1948 Finally, I note that on 25 July 2008, in an email to Mr Rumore, Mr Sassine

advised that Equitexx P/L was “acting as trustee for Obeid Family Trust No 2”
and that he was the sole director and shareholder of that company. He also
advised that “[w]ith respect to the SPV(s) you intend setting up, which I
understand to be Unit trusts [sic] with a corporate trustee” (a clear reference to
the company ultimately registered as Voope P/L) “all units on issue are to be
owned by ‘Equitexx Pty Ltd ATF Obeid Family Trust No 2’.” 2128 On 28 July
2008, in an email to Gerard Obeid and Moses Obeid copied to Paul Obeid, Mr
Rumore advised that Geble P/L (a company of which he would be the sole
director and shareholder) would acquire “the properties” as trustee for Equitexx
P/L as trustee for OFT No 2.2129
1949 I am satisfied that the various steps taken by solicitors acting on behalf of
Edward Obeid or acting on behalf of Locaway P/L as purchaser of Cherrydale
Park, directed to changing the legal ownership of Cherrydale Park, initially in
October 2008 and reignited in early 2009, in the context of all of the evidence
in the Crown case, is probative of the fact and degree of control Edward Obeid,
and through him Moses Obeid, exercised over the entity who would be the
registered proprietor of Cherrydale Park. I am also satisfied of the steps taken
by Moses Obeid to ensure that his friends and associates acquired the
properties adjacent to Cherrydale Park and within the boundaries of the Mount
Penny Coal Release Area in order to maximise both the interest in the EL they
expected would issue to a mining company with whom they would contract in a
joint venture and the increased value of their landholdings.
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
2128
Exhibit A p 1391.
2129
Exhibit A p 1393.
5KIPGFD[#WUV.++
participation in the conspiracy alleged, as steps taken coordinate with the

acquisition of the adjacent properties by their friends or associates.
Is Moses Obeid’s participation in the conspiracy proved beyond reasonable

doubt?
1951 I propose to deal first with the question whether, independent of the co-
conspirators rule embodied in s 87(1)(c) of the Evidence Act, I am satisfied that
the evidence directly admissible against Moses Obeid establishes his
intentional participation (with Mr Macdonald) in the conspiracy beyond
reasonable doubt.
1952 The fact that there is no direct evidence that Moses Obeid intentionally agreed
to enter into the conspiracy as at the date I am satisfied it was forged (that is,
no later than 9 May 2008), does not undermine the conclusion that I have
ultimately reached, and beyond reasonable doubt, that he did so.
1953 In finding the first, second, fourth, seventh and eighth acts of misconduct
established (on the basis of which I was ultimately satisfied beyond reasonable
doubt of the existence of the conspiracy), I made various factual findings that
provide, in my view, a sound evidential basis upon which to find, as a fact, that
Moses Obeid agreed to participate in the conspiracy with Mr Macdonald at the
time that it was forged (that is, no later than 9 May 2008), and that he actively
participated in the conspiracy after that date by committing a range of overt
acts in furtherance of that agreement.
1954 The various factual findings I have made in the context of all of the evidence in
the Crown case (and the inferences drawn from that evidence) also provide, in
my view, a sound evidential basis upon which to find as a fact that in agreeing
to enter into the conspiracy, Moses Obeid knew and intended that Mr
Macdonald would wilfully misconduct himself in the office he held as Minister
for Mineral Resources in connection with the granting of an EL at Mount Penny
and for the improper purpose alleged, and that he knew by Mr Macdonald
agreeing to act in that way, he would wilfully breach his duties and obligations
as a Minister without reasonable cause or excuse.
1955 In finding Moses Obeid’s knowing participation in the conspiracy proved

beyond reasonable doubt, I have relied principally, but not exclusively, on what
5KIPGFD[#WUV.++
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.
1956 I also rely on what I am satisfied are the direct steps Moses Obeid took to
introduce the Triulcios to Mr Rumore to facilitate a change in the directorship of
Geble P/L as the registered owner of Donola and for Mr Lewis to be introduced
to Mr Rumore as a client, and for him to be assigned the call options over
Coggan Creek, also held by Geble P/L, steps which I am satisfied Moses
Obeid took in order to distance himself (and his family) from ownership or
control of the properties encompassed within the Mount Penny Coal Release
Area.
1957 Moses Obeid’s conduct from June 2008 extending through to the end of the
conspiracy on 31 January 2009, and his conduct in what I have described as
“the entrepreneurial phase” of the conspiracy, leaves me in no doubt that, as at
9 May 2008, he had intentionally entered into an agreement with Mr Macdonald
that Mr Macdonald would knowingly breach his Ministerial obligations of
confidentiality and/or impartiality in connection with the granting of an EL at
Mount Penny to advance the Obeid family’s interests (and the interests of their
associates).
1958 Moses Obeid’s participation in that agreement is proved to my satisfaction, and

beyond reasonable doubt, in a multiplicity of ways. 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. Evidence in that category includes the following:
5KIPGFD[#WUV.++
(1) His dealings first with Mr Fang as the Chairman of the Tianda Group (as
I have found, on Mr Macdonald’s introduction and recommendation) 2130
no later than 30 June 2008 and then his meetings with Mr Brook as a
Senior Vice President of Lehman Brothers on 2 and 7 July 2008 (the
Wentworth Hotel meetings), in pursuit of a “mining deal” after having
learnt from Mr Macdonald, sometime after 17 June 2008 at the latest,
that Cherrydale Park would be included in a newly created coal release
area over which an EL would be granted following a closed tender
process.
(2) His use of Wiles Map 2 in the second Wentworth Hotel meeting which
he knew contained confidential information that had sourced from Mr
Macdonald to designate the area contiguous or adjacent to the area he
learnt (again from Mr Macdonald) was to be the newly created Mount
Penny Coal Release Area encompassing Cherrydale Park (again
referable to that map).
(3) His provision to Mr Brook of a confidential list of companies Mr
Macdonald informed him the DPI was proposing to invite to participate
in a closed tender process for the granting of an EL at Mount Penny in
order that Mr Brook might approach a mining company on his family’s
behalf with a view to forging a mining deal with one of those companies.
(4) His dealings (through Mr Brook) with Monaro Mining NL (as one of the
invitee companies) from 15 July 2008 and thereafter through the
interposition of Voope P/L (a company controlled by the Obeid family)
and his concern, as evidenced in the instructions he gave to Mr
Rumore, throughout the course of those dealings to ensure effective
control over Monaro Mining NL’s application for the grant of an EL at
Mount Penny and the grant of the EL were it the successful tenderer, in
particular, his instructions to Mr Rumore as to the content of the Share
Option Deed to ensure control was maintained over Monaro Mining NL’s
application for the grant of an EL at Mount Penny.
(5) His introduction of both Mr Fang and later Mr Brook to his solicitor, Mr
Rumore, in the course of receiving ongoing legal advice from Mr
Rumore as to the structure of a potential joint venture mining deal with a
third party entity or entities.
(6) His instructions to Mr Rumore to acquire the neighbouring properties to
Cherrydale Park (Donola and Coggan Creek), initially through Geble
P/L, to ensure control over the land that he understood would be
encompassed by the newly created Mount Penny Coal Release Area,
and later the convoluted interposition of third parties to take legal
ownership of those properties and the introduction of Mr Lewis to Mr
Rumore as a client in that connection.
(7) Following the public launch of the EOI process which included the
Mount Penny Coal Release Area overlaying Cherrydale Park, the
coordinated steps he took (with his father Edward Obeid) to attempt to
2130
See par 1191.
5KIPGFD[#WUV.++
change the legal ownership of Cherrydale Park from Locaway P/L to

UPG P/L.
(8) His request for and receipt of information about the progress of the
preparation of Monaro Mining NL’s application for the grant of an EL at
Mount Penny from Mr Brook (who he had effectively engaged to act as
his “unpaid” intermediary), including his request for information about
the prospects of Mr Brook securing financial support for Monaro Mining
NL’s bid for Mount Penny after Mr Brook was engaged to act as a
consultant for Monaro Mining NL following the collapse of Lehman
Brothers.
(9) His receipt of a draft of Monaro Mining NL’s application for the grant of
an EL at Mount Penny from Mr Brook on 28 October 2008.2131
(10) His receipt of a Memorandum of Understanding between Monaro Mining
NL and Tianci Inc, a potential Chinese partner (later found during the
execution of the Locaway P/L search warrant together with Wiles Map 1
and Wiles Map 2 in Paul Obeid’s office).2132
(11) His provision of further confidential information to Mr Brook in August
2008, the subject of the eighth act of misconduct, including with a view
to Mr Brook continuing to pursue capital backing for Monaro Mining NL’s
application for the grant of the EL at Mount Penny.
(12) Following Mr Grigor’s resignation from Monaro Mining NL and amidst
growing doubts as to Monaro Mining NL’s capacity to pay the $25
million AFC which was integral to its application for the EL at Mount
Penny, his change of focus from Monaro Mining NL to Cascade Coal
P/L and the process in which he was involved (through Mr Brook as an
intermediary vis a vis the Board of Monaro Mining NL) to preserve
Voope PL’s position by gaining control of Monaro Mining NL’s bid and
the ultimate vesting of control over Monaro Mining NL’s bid (via Loyal
Coal P/L) in Voope P/L as leverage for his pursuit of a substitute mining
deal with Cascade Coal P/L.
(13) His direct involvement with Mr Brook in the negotiations for and the
ultimate structuring of two agreements with Cascade Coal P/L executed
on 5 June 2009, coordinate with Loyal Coal P/L withdrawing its
application for the grant of the EL at Mount Penny: the first, the Letter of
Joint Venture Agreement between Cascade Coal P/L and Buffalo
Resources P/L, amended by way of Letter of Amendment of the Joint
Venture Agreement the following day; and the second, the Letter of
Landowners Agreement between Cascade Coal P/L and the owners
and ostensible owners of Cherrydale Park (UPG P/L) signed by Mr
Kaidbay, Donola (Geble P/L) signed by Mr Campo, the Triulcio’s
accountant, and Coggan Creek (Coopers World P/L) signed by Mr
Lewis.
(14) The profits that were generated from sale of a 25% share in the joint
venture agreement with Cascade Coal P/L in October 2010 for $60
2131
Exhibit A p 2393.
2132
5KIPGFD[#WUV.++
million of which $30 million was disbursed to companies controlled by

various members of Moses Obeid’s immediate family, in particular to the
Obeid Corporation P/L and then to Calvin Holdings P/L as successive
trustees of the Obeid Family Trust No 2 of which he was a named
beneficiary.
1959 In addition to what I am satisfied is the demonstrable and, in my view,
overwhelming evidence of Moses Obeid’s participation in the conspiracy in the
various steps outlined above, I am fortified in making that finding to the criminal
standard of proof beyond reasonable doubt by what I am satisfied were a
number of deliberate and material lies he told to a number of journalists on
various dates between May 2009 and December 2012, at a time when I am
also satisfied he was conscious of having agreed with and participated in a
conspiracy of the scope and object of the conspiracy alleged, and where I am
satisfied that he told those lies in order to attempt to conceal that fact. I am also
satisfied that in the course of those interviews he made a number of
admissions against his interest in the outcome of the trial proceedings as
provided for in s 81 of the Evidence Act.
1960 The interview with Ms Davies (a journalist with the Sydney Morning Herald)
was conducted by telephone on 14 May 2010.2133 Ms Davies made
contemporary handwritten notes.2134 The interviews with Mr Shanahan and Ms
Jiminez were conducted on 18, 20 and 21 December 2012. Those interviews
were audio-recorded.2135 Edward Obeid was present at the 18 December 2012
interview only.
1961 Moses Obeid objected to the admission of this evidence as failing to meet the
test of relevance in s 55 of the Evidence Act (in the sense that it was not
probative of proof of his alleged participation in the conspiracy) as inadmissible
hearsay not governed by the exception in s 81 of the Evidence Act and as
failing to meet the common law preconditions to the admissibility of out-of-court
statements as capable of constituting a “consciousness of guilt” lie.
1962 Edward Obeid also objected to the tender of the interview with Mr Shanahan
and Ms Jiminez in which he participated, together with what the Crown
2133
T 3560-3563.
2134
Exhibit AP.
2135
Exhibit AV(1).
5KIPGFD[#WUV.++
contended were lies he told Ms Davies in a separate telephone interview and

further admissions allegedly made to another journalist, Ms Ong, in October
2009.2136
1963 For completeness, in its case against Mr Macdonald, the Crown tendered an
article2137 published in the Australian Financial Review on 28 October 2009 by
Ms Ong following the interview with Edward Obeid for a non-hearsay purpose,
namely to prove, as a matter of inference, that the publication of the article
prompted Mr Macdonald to make various false claims to Mr Mullard and Mr
Gibson which the Crown contends were lies told by him with a consciousness
of guilt.2138 The tender of that evidence for that purpose was not opposed by Mr
Macdonald. Having found the existence of the conspiracy proved beyond
reasonable doubt, and having made the allied finding of Mr Macdonald’s
participation in the conspiracy also proved beyond reasonable doubt, I have
not found it necessary to determine whether what Mr Macdonald said to either
or both of Mr Gibson and Mr Mullard about the location of Edward Obeid’s
property were “consciousness of guilt” lies told by him from which an inference
of guilt might be drawn.
1964 In the course of the trial, after lengthy oral argument and the furnishing of
detailed written submissions from the Crown and from counsel for Edward
Obeid and Moses Obeid, I published a judgment ruling on the admissibility of
this body of evidence in the Crown case against each of them.
1965 The interlocutory judgment also considered lies and admissions said by the
Crown to have been made by Edward Obeid and Moses Obeid in the video
recording of the execution of the search warrant at the Locaway P/L premises
on 23 November 2011.
1966 I annexed a Schedule to that judgment in which the lies and admissions I
admitted were identified by a line entry, referable to Ms Ong’s statement, Ms
Davies’ handwritten notes of interviews with Moses Obeid and Edward Obeid
2136
As to which see par 1981 and following where I consider whether Edward Obeid’s parti cipation in the
conspiracy is proved beyond reasonable doubt.
2137
Exhibit AR.
2138
Mr Mullard’s evidence at T 771; Mr Gibson’s evidence at T 2504.
5KIPGFD[#WUV.++
and the audio recorded interview with Mr Shanahan and Ms Jiminez. 2139 Ms
Davies was the only journalist who gave evidence in the trial.
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,2140 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.
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.
2139
2140
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63.
5KIPGFD[#WUV.++
The lies Moses Obeid told to Ms Davies

1970 On 20 May 2010, Ms Davies published an article in the Sydney Morning Herald
entitled “Coal down below: how rich is his valley”.2141 Having regard to the
overwhelming weight of the evidence, I am satisfied that Moses Obeid told two
deliberate lies to Ms Davies:
(1) He did not “get” Mr Lewis to purchase Coggan Creek.

(2) He did not know Mr Lewis had purchased Coggan Creek until January
2010.
1971 I accept the Crown’s submission that the deliberation with which he told those
lies is accentuated by what Ms Davies described in her evidence as Moses
Obeid’s outrage at the implication that he would have orchestrated the
purchase of properties neighbouring Cherrydale Park.2142
The lies Moses Obeid told to Mr Shanahan and Ms Jiminez

1972 At the time these interviews were conducted in December 2012, ICAC had
commenced a public inquiry on 12 November 2012 with the stated scope that
included, relevantly so far as the issues at trial are concerned, the following: 2143
(1) The circumstances under which, in 2007 and 2008, Cherrydale Park,
Coggan Creek and Donola were acquired, and the actual and potential
financial consequences of those acquisitions to those parties who were
affected thereby.
(2) The ownership of Cherrydale Park, Coggan Creek and Donola.
(3) The circumstances surrounding Mr Macdonald’s decision to open a
mining area in the Bylong Valley for coal exploration, including whether
that decision was influenced by Edward Obeid or members of his family,
whether on Mr Obeid’s behalf or otherwise.
(4) The circumstances under which the DPI called for expressions of
interest, confined to junior miners, for the awarding of exploration
licences in respect of the coal mining allocation area known as Mount
Penny and Mr Macdonald’s role in the decision so to call for
expressions of interest.
(5) The actual and potential financial benefits of the award of the Mount
Penny tenement to those parties who have or have had a direct or
indirect interest in that tenement, whether by way of a holding of shares
or as a trust beneficiary or otherwise.
2141
Exhibit AQ.
2142
T 3566.
2143
Exhibit AJ.
5KIPGFD[#WUV.++
(6) Whether Mr Macdonald, any member of his staff or any DPI employee
(whether instructed by Mr Macdonald or otherwise), in breach of their
duties, provided confidential information relating to the EOI process in
respect of the Mount Penny tenement to members of the Obeid family
or persons associated with Cascade Coal P/L.
(7) Whether such confidential information was used by members of the
Obeid family or persons associated with Cascade Coal P/L.
(8) The unincorporated joint venture between Cascade Coal P/L and
Buffalo Resources P/L and the shareholding in and ownership of Buffalo
Resources P/L and any dealings involving Buffalo Resources P/L’s
interest in that joint venture.
(9) The circumstances surrounding an agreement made in about 2010
between Coal & Minerals Group P/L and Southeast Investment Group
P/L and the financial consequences of that agreement to those
companies and to those persons or entities directly or indirectly
interested in them.
1973 Evidence had been given in the ICAC public hearing from 13 November to 14
December 2012 by a large number of witnesses, many of whom gave evidence
for the Crown in the trial.2144
1974 I am satisfied that, in the course of the interview with Mr Shanahan and Ms
Jiminez, Moses Obeid told a large number of “half-truths” in addition to
deliberate lies in the course of constructing a deliberately false narrative
concerning his family’s motivations for the pursuit of, and ultimately their
involvement with, Monaro Mining NL and later Cascade Coal P/L as mining
companies at one time committed to exploiting the potential for coal mining in
the Bylong Valley situated near Mount Penny. In the published judgment2145 I
sought to disentangle from the narrative the lies which were capable of
constituting implied admissions of guilt and the representations which
constituted admissions against interest.
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
2144
Exhibit 45.
2145
5KIPGFD[#WUV.++
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.
5KIPGFD[#WUV.++
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.
The guilt of Mr Macdonald and Moses Obeid is established beyond reasonable

doubt
1979 Having found the existence of the conspiracy charged proved beyond
reasonable doubt, and having made the inevitable and allied finding, also
beyond reasonable doubt, that in the way the Crown has pleaded and
particularised its case that Mr Macdonald was a party to the agreement alleged
and, also for the reasons set out at length above, that Moses Obeid was a
party to that same conspiracy, subject only to being satisfied of the final
“element” of the offence charged concerning the seriousness of the offending, I
am satisfied beyond reasonable doubt of the guilt of both Mr Macdonald and
Moses Obeid.
1980 That finding does not lead, inevitably, to a finding that Edward Obeid is also
guilty of the offence charged. He is entitled to the benefit of any reasonable
doubt I have as to whether the Crown has proved his participation in the
conspiracy beyond reasonable doubt.
Is Edward Obeid’s participation in the conspiracy proved beyond reasonable

doubt?
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
5KIPGFD[#WUV.++
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.
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 20122146) 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. 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…2147
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.
2146
2147
5KIPGFD[#WUV.++
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.
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”)2148 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. That conduct,
the Crown submitted, and I accept, is demonstrative of Edward Obeid’s desire
to keep from public gaze or scrutiny what he knew by October 2008 was Mr
Macdonald’s progressive dissemination of information in breach of his
Ministerial duties of impartiality (if not confidentiality) in order that Moses Obei d
might pursue (with his knowledge and active encouragement) a mining deal
that would encompass Cherrydale Park.
1987 The Crown also relied on the degree of telephone contact between Edward
Obeid and Moses Obeid to support the inference that Edward Obeid was in
fact being kept informed of the unfolding prospect of the progressive steps
taken in execution of the conspiracy generating a very significant financial
benefit for his family. The Crown submitted that the evidence in the Telephone
Summary established the overwhelming opportunity for communication
2148
5KIPGFD[#WUV.++
between the accused and that the most direct line of communication was
between Mr Macdonald and Edward Obeid.2149 In the Crown’s submission, the
state of that evidence supported an inference that Mr Macdonald conveyed the
conspiratorial and other information to Edward Obeid, who then conveyed it to
Moses Obeid to use in pursuit of realising the commercial value of that
information. In my view, the inference contended for by the Crown is made out,
although as I have emphasised, and the Crown has accepted, 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. 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.
1988 It is clear to me, having regard to the full complement of the evidence that I
have reviewed and considered in finding the conspiracy proved beyond
reasonable doubt, and in finding that Moses Obeid participated in the
conspiracy and the inferences I have drawn from that evidence, that Moses
Obeid took a “hands on” approach to implementing and exploiting the
information generated by Mr Macdonald’s successive acts of misconduct
committed in connection with the granting of an EL at Mount Penny.
1989 On the basis at this stage of there being reasonable evidence of Edward
Obeid’s participation in the conspiracy, I am unable to determine whether there
was an apportionment of roles and responsibilities between Edward Obeid and
Moses Obeid which might explain why Moses Obeid’s role as a co-conspirator
was “hands on”. For example, on the available evidence I am unable to
determine whether Moses Obeid’s responsibility to instruct commercial
solicitors as he negotiated a range of commercial contracts, first with Monaro
Mining NL and then with Cascade Coal P/L, to achieve the best possible
commercial outcome for his family (and their friends and/or associates), was a
role he assumed because he had or was perceived to have the necessary
business acumen or time or both, or because that role was designated for him
2149
T 3671.
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in order to ensure there was a measure of distance between Edward Obeid

and Mr Macdonald as his Parliamentary colleague.2150
1990 What I am satisfied of, however, is that what Moses Obeid did as a co-
conspirator in concert with Mr Macdonald, together with the many independent
steps Mr Macdonald took in his capacity as Minister for Mineral Resources to
position the Obeid family to seek out and secure the commercial advantage of
a mining deal over land they owned or controlled (some, but not all of which
involved the communication of confidential information as a discrete act of
misconduct on which the Crown relied in proof of its case), would be unlikely to
have occurred without the knowledge and sanction of Edward Obeid as the
head of the Obeid family, in particular in circumstances where, on Edward
Obeid’s own account, he was deeply attached to Cherrydale Park and where
he intended to live in his retirement.2151
1991 I do accept, however, and direct myself accordingly, that knowledge of the
existence of a conspiracy in which others are complicit (even Edward Obeid’s
son and Mr Macdonald, his Parliamentary colleague) is not enough to attract
criminal liability as a co-conspirator. If Edward Obeid is to be convicted, it is
essential that I am satisfied that the evidence allows me to find, to the criminal
standard of proof beyond reasonable doubt, that he also intentionally entered
into an unlawful agreement with Mr Macdonald of the scope and object of the
conspiracy charged, no later than 9 May 2008 when the agreement the Crown
determined to prosecute at trial was forged.
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
2150
Exhibit A p 168.001; Exhibit AV(2) p 27 of 40.
2151
Exhibit AO pp 4-6; Exhibit AU(2) line 275; Exhibit AV(2) p 3 of 40.
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course of the trial2152 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.
1994 I regard Edward Obeid’s interview with Ms Ong on about 27 October 2009
where he asserted he would fight any mine effecting Cherrydale Park, his
insistence in the Shanahan/Jiminez interview in December 2012 that
“Cherrydale Park was everything we wanted for the home, for the family, and
[he] wanted to retire there”2153 and, to a lesser extent, what he said to ICAC
officers in the execution of the search warrant in November 2011 (in each
forum expressing a strong emotional attachment to Cherrydale Park) as further
support for the conclusion I have reached that Edward Obeid would not have
been kept ignorant of arrangements made by Moses Obeid for Cherrydale Park
to be part of a so-called landholders alliance, where the very object of that
alliance was to monetise the prospects of contracting in a joint venture with the
mining company for the exploitation of coal under the property, including, if
necessary, the sale of Cherrydale Park as contemplated under the Landowners
Deed.
1995 I am also satisfied that Edward Obeid’s claim when interviewed by Ms Ong that
“his family had not been contacted by Cascade Coal” in the same category,
namely, as an admission against interest in the sense that it is capable of
supporting proof of his participation in the conspiracy.
1996 I also regard Edward Obeid’s assertion to Ms Davies in May 2010 that he was
“not interested in the [identity of the people] who are buying [properties]” as an
admission against interest, given that by December 2012 he was present when
Moses Obeid freely volunteered information to Mr Shanahan and Ms Jiminez
about the keenness with which his family introduced Mr Lewis to the prospect
of acquiring Coggan Creek and where Edward Obeid freely volunteered the
identity of “Rocco” (Triulcio) as the person who was to acquire Donola, albeit
that in both scenarios the acquisition of those properties was described as a
strategy to block the danger posed by the Authorisations held by Anglo
2152
2153
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American P/L.2154 I also note Edward Obeid’s diary recorded various meetings
with Rocco Triulcio on 1 May, 7 May and 18 July 2007; 4 June, 14 November
and 16 December 2008; and 22 May, 4 June, 29 July, and 10 September
2009,2155 including a meeting with Rocco Triulcio and Mr Macdonald at the
Wentworth Hotel on 1 June 2009.2156
1997 In the interlocutory judgment which dealt with the admissibility of the
Shanahan/Jiminez interview, I dealt with a submission advanced by the Crown
that some of the statements made constituted “joint admissions” against
interest by Edward Obeid and Moses Obeid. I rejected that submission. I was,
however, satisfied that the interview was an environment in which both of the
accused actively and freely participated in volunteering an unfolding dialogue in
the course of which, from time to time, they each added content to what the
other was saying. It was in that sense that I was satisfied in the context of the
language of s 87 of the Evidence Act that what they each intended to assert
about a fact or a state of facts was informed by that level of engagement. In
that limited sense I resolved to admit a number of discrete previous
representations as constituting admissions against each of Edward Obeid and
Moses Obeid. They were clearly identified in the interlocutory judgment by
various line entries. They included representations about the deployment of the
so-called “exit strategy” about which I have already made various findings
adverse to both Edward Obeid and Moses Obeid; the claim they each made
that they had no knowledge of and were shocked to learn about the existence
of EL 6676, as they described it, “coming on the left side of us” (clearly a
reference to the new Mount Penny Coal Release Area) and the various
references where Edward Obeid acknowledges the potential to capitalise on
the value of the land as landowners by the application of so-called “multiples”.
The co-conspirators rule

1998 Upon finding the existence of the conspiracy proved beyond reasonable doubt,
in large part because of the probative force of Mr Macdonald’s five related acts
of misconduct and the use to which Moses Obeid put the information
2154
Exhibit AV(2) pp 15 and 19 of 40.
2155
Exhibit A pp 115, 117, 121, 849, 2789, 3077, 3751, 3895, 4471, 4589.
2156
Exhibit A p 3895.
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generated directly from three of those acts of misconduct, (including the

information I was satisfied Mr Macdonald shared more generally as the
prospect of a new coal release area at Mount Penny became a reality), I was
also able to reason confidently to a finding that each of Mr Macdonald and
Moses Obeid were active participants in that conspiracy, a finding I also made
beyond reasonable doubt.
1999 On that analysis, I did not find it necessary to invoke the common law co-
conspirators rule,2157 the operation of which is now reflected in s 87(1)(c) of the
Evidence Act 1995 (NSW),2158 as an additional source of evidence in proof of
the participation of Mr Macdonald and Moses Obeid in the conspiracy.
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.
2001 Section 87(1)(c) of the Evidence Act provides:
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—
...
(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.
2157
Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 at 95 and 100 citing Tripodi v The Queen (1961) 104
CLR 1; [1961] HCA 22.
2158
R v Macraild (Court of Criminal Appeal (NSW), 18 December 1997, unrep); Elomar v R [2014] NSWCCA 303
at [288]; R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127.
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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.2159
2004 In R v Dolding,2160 Simpson AJA analyses what is meant by the concept of a

“representation” as that word appears in s 87(1)(c) and in s 59 of the Evidence
Act and where the word “admission” appears in the Dictionary to the Act.
Although, the point was not argued at length in the closing submissions of
either the Crown or Ms Francis, I set out the following passages to make clear
the basis upon which I propose to treat what the Crown relied upon as the
“representations” of Moses Obeid and Mr Macdonald as admissions against
Edward Obeid in further proof of his participation in the conspiracy:
[41] A number of observations about the relevant legislation need to be made.

[42] First, the word “representation” appears in s 59, s 87, and in the definition
of “admission” in the Evidence Act. Its meaning is central to the issues
involved in this appeal. The Dictionary (which is usually taken to define terms)
to the Evidence Act contains an entry under “representation”, but it is an entry
that does not have the usual indicia of a definition. It provides:
“representation includes:
(a) an express or implied representation (whether oral or in writing), or
(b) a representation to be inferred from conduct, or
(c) a representation not intended by its maker to be communicated to
or seen by another person, or
(d) a representation that for any reason is not communicated.”
[43] This entry leaves open the meaning of the word “representation”. In Lee v
The Queen (1998) 195 CLR 594; [1998] HCA 60, the High Court said:
2159
See R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 where Simpson AJA at [38] cites with approval
Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794.
2160
(2018) 100 NSWLR 314; [2018] NSWCCA 127.
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“21. ’Representation’ is often used in the law to refer to words that are
intended to induce action or inaction by the person who hears or reads
them. It may, therefore, seem to be an unusual word to use in this
context [s 59 of the Evidence Act]. But it is clear from the Interim
Report of the Law Reform Commission on evidence that, in the
proposals that were later formulated in the [Evidence Act], the term
‘representation’ was used to apply to statements and to conduct and
was used to encompass all that those statements or that conduct
would convey to the observer. It is also clear that the proposal was
intended to resolve:
‘the issue of whether the proposed rules should apply to
implied assertions as well as express assertions, by
recommending that a distinction be drawn between intended
and unintended implied assertions, with the latter outside any
hearsay rule’.
In its Interim Report, the Commission went on to state why it excluded
unintended implied assertions from the operation of a hearsay rule and
its exceptions. Chief among those reasons was the conclusion that it is
unlikely that the person making some implied assertion would
deliberately attempt to mislead if the implied assertion was not
intended.
22. Section 59 must be understood in this light. The rule’s operation
requires consideration first of why it is sought to lead evidence of
something said or done out of court (a previous representation). What
is it that that ‘previous representation’ is led to prove? In particular, is it
sought to lead it to prove the existence of a fact that the person who
made the representation intended to assert by it? The fact that the
statement or the conduct concerned might unintendedly convey some
assertion is not to the point. The inquiry is about what the person who
made the representation intended to assert by it.”
[44] In Australian Competition and Consumer Commission v Pratt (No 3)
[2009] FCA 407; (2009) 175 FCR 558 Ryan J noted the Evidence Act
Dictionary entry with respect to “representation” and turned to dictionary
definitions to ascertain its meaning as used in the Evidence Act. Referring to
the second edition of the Oxford English Dictionary, he quoted:
“4.a The action of placing a fact etc. before another or others by means
of discourse or account esp. one intended to convey a particular view
or impression of a matter in order to influence opinion or action.”
and, from the third edition of the Macquarie Dictionary:
“14 a description or statement of things true or alleged.”
[45] To my mind, subsections (1) and (2) of s 59 make reasonably plain that
the concept underlying “representation” as used in the Evidence Act is that the
existence of a fact or state of facts is asserted. The entry in the Dictionary is
designed to broaden the means by which, for the purpose of the admissibility
or otherwise of evidence of the representation, the assertions of the existence
of a relevant fact may be conveyed. Indeed, the entry allows for
“representation” to include the assertion of the existence of a fact that is not
conveyed or communicated. There is an important, though subtle, distinction
between what was intended to be asserted, and what was conveyed, or
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intended to be conveyed, by the person who made the “representation”. But

the hallmark of the concept is the assertion of a fact or a state of facts.
[46] As the Dictionary entry makes clear, it is not necessary that the existence
of a fact intended to be asserted by the maker of the representation was also
intended to be conveyed by that person. Paragraph [22] of Lee makes the
same point.
[47] There can be little doubt that “representation” was intended to have the
broadest application. It includes non-verbal representations to be inferred from
conduct, and representations not intended to be, and not, communicated.
2005 It follows that before utilising the representations of either or both of Moses
Obeid and Mr Macdonald which I am satisfied were made by each of them in
furtherance of the conspiracy (and where appropriate the statements that can
be attributed to each of them as accompaniments to their conduct), as an
available source of evidence to supplement proof of the participation of Edward
Obeid in the conspiracy, I would first need to be satisfied there is reasonable
evidence of his participation, that is, independent of the participation of either
or both of Moses Obeid and Mr Macdonald.
2006 Ms Francis submitted that the Crown had not established a sufficient basis to
invoke s 87(1)(c) in proof of its case against Edward Obeid and, accordingly,
he is entitled to the benefit of the reasonable doubt I must have as to the
sufficiency of the evidence to prove his participation in the conspiracy alleged.
2007 For the reasons already given in considering the evidence probative of Edward
Obeid’s participation, I reject that submission.
2008 Ms Francis submitted that even were I satisfied that there is reasonable
evidence of Edward Obeid’s participation, the agreement the subject of the
conspiracy is so amorphous that I could not be satisfied that the conduct of
Moses Obeid and Mr Macdonald is evidence of their participation in the same
criminal conspiracy, as distinct from some other unlawful or even lawful
arrangement, including a conspiracy that was entered into at a date other than
the date the Crown specifies as fundamental to proof of the conspiracy alleged.
2009 In circumstances where, again for the reasons set out at length above, I am
satisfied beyond reasonable doubt of the existence of the conspiracy the
Crown has elected to prosecute at trial, including that it was an agreement
forged no later than 9 May 2008, and in circumstances where at the outset of
my deliberations to verdict I addressed and rejected Ms Francis’ various
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challenges to the indictment as defective in law, inter alia, because of the lack
of specificity in the scope and object of the conspiracy as framed, the second
basis upon which Ms Francis challenged the Crown’s reliance on s 87(1)(c) of
the Evidence Act is not sustained.
2010 Finally, Ms Francis submitted that even were I satisfied that the inclusionary
rule in s 87(1)(c) is available as a matter of law, none of the previous
representations by either or both of Moses Obeid or Mr Macdonald in
furtherance of the conspiracy alleged (that is, what are understood under the
common law rule as the acts or declarations by a conspirator committed in
furtherance of the conspiracy) can elevate the independent evidence of
Edward Obeid’s participation to proof of that fact beyond reasonable doubt
where the conduct of both Moses Obeid and Mr Macdonald postdates any
conduct of Edward Obeid which might constitute independent evidence of his
participation.
2011 Ms Francis developed that submission by advancing the argument that since
there is no evidence that Edward Obeid knew that Mr Macdonald was providing
the information the subject of the fourth, seventh and eighth acts of
misconduct,2161 or any evidence that he knew that Moses Obeid received that
information, even if those acts are properly described as acts in furtherance of
the conspiracy and admissible against each of Moses Obeid and Mr
Macdonald as evidence of the existence of the conspiracy and their
participation in it, those same acts cannot provide any evidence of Edward
Obeid’s complicity when those specific acts were beyond the contemplation of
all of the parties at the time the agreement was forged.
2012 I did not regard that analysis as a precondition to the admission of the
“representations” made by each of Moses Obeid and Mr Macdonald (a
concept, as Simpson AJA identified it, of the broadest application under the
Evidence Act) as capable of constituting an admission against Edward Obeid.
What is important, however, is that I am satisfied that those representations
were made in furtherance of advancing or achieving the object of the
2161
Ms Francis also referred to the confidential information the subject of the sixth and ninth acts of
misconduct which I ignore since I am not satisfied those acts of misconduct are made out on the evidence.
5KIPGFD[#WUV.++
conspiracy (the common purpose) so as to attract the operation of s 87(1)(c) in

this case.
2013 Again as noted by Simpson AJA in R v Dolding,2162 the concept of what might
constitute acts or statements made in furtherance of the common purpose in
s 87(1)(c) is informed by the operation of the co-conspirators rule stated
distinctly in Ahern v The Queen,2163 at 94-95, as:
…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: … 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 the
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” (internal citation
omitted).
2014 In Landini v State of NSW2164 (also referred to by Simpson AJA in Dolding) Hall
J noted the fourth precondition to the operation of s 87(1)(c) as follows:
(d) The phrase ‘in furtherance of’ carries with it the ordinary English Dictionary
meaning encapsulated in the word ‘furtherance’, namely, the fact of being
helped forwards; the action of helping forwards; advancement, aid, assistance
… in the context of s 87(1)(c), it denotes an act done to advance, aid or help a
common purpose whether that purpose is a lawful or not.
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.
2016 The “representations” made by Mr Macdonald in furtherance of achieving the

object of the conspiracy include the following:
2162
[2018] NSWCCA 127.
2163
(1988) 165 CLR 87; [1988] HCA 39.
2164
[2007] NSWSC 259.
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(a) His conduct in committing the first, second, fourth, seventh, and
eighth acts of misconduct.
(b) His conduct in communicating to either or both of Edward Obeid
and Moses Obeid, on or after 6 June 2008, that a new coal
release area in the area of Mount Penny was likely to be
designated by the DPI and then, no later than 17 June 2008,
communicating to either or both of them that the Mount Penny
Coal Release Area had in fact been designated by the DPI.
(c) His introduction of Mr Fang to Moses Obeid in order that they
might discuss the prospect of a mining project.
2017 The “representations” made by Moses Obeid in furtherance of achieving the
object of the conspiracy include:
(a) Moses Obeid’s use of the information in the form of Wiles Map 2,
the subject of the fourth act of misconduct, to seek to attract
Lehman Brothers as an investor or broker in a mining deal.
(b) Moses Obeid’s receipt of the information comprising the seventh
and eighth acts of misconduct from Mr Macdonald and his
furnishing of that information to Mr Brook in his dealings with
Monaro Mining NL.
(c) Steps taken by Moses Obeid to secure ownership or control of
Donola and Coggan Creek.
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
5KIPGFD[#WUV.++
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.
The Jones v Dunkel direction sought by the accused

2021 Mr Martin sought a Jones v Dunkel 2165 direction in relation to Mr Munnings.2166
Mr Neil also sought that direction.2167 The same direction was sought by Mr
Neil in relation to:
(1) Paul Obeid and Gerard Obeid, Moses Obeid’s brothers who attended
various conferences with Mr Rumore.
(2) Mr Selby, who introduced Mr Brook and Moses Obeid at the first
Wentworth Hotel meeting on 3 July 2008.
(3) Mr Fang, the Chairman of the Tianda Group and an associate of Mr
Macdonald who attended a conference with Mr Rumore and Moses
Obeid.
(4) Mr Hewson, a consultant for Tianda Resources P/L who was previously
Mr Macdonald’s Chief of Staff.
(5) Witnesses who were speaking to Mr Brook in July 2008, including BBY
and Tasmania Mines.
2165
(1959) 101 CLR 298; [1959] HCA 8.
2166
T 3802.
2167
MFI 192 p 93.
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(6) Witnesses from any of the other companies invited to express interest in
the eleven coal release areas, including the “Jain Group” and
“Breaksphere”.
(7) Any of the potential investors who Mr Brook spoke to prior to September
2008.
(8) Hemantha de Silva, Steven Dunn and Brian Gardoll, who were involved
in answering enquiries about the water licences at Cherrydale Park.
(9) Selina Rainger, Mr Macdonald’s personal assistant.
(10) Patricia Madden, Kevin Ruming and other DPI witnesses.
(11) Annmarie Robinson, the ICAC investigator who shared a storage locker
with Ms Stockley.
(12) Mr Lewis, the purchaser of Coggan Creek.
(13) Ross and Rocco Triulcio, the purchasers of Donola.
(14) Mr Kaidbay, an associate of Moses Obeid.
(15) Mr Sassine, a chartered accountant who acted from time to time for
members of the Obeid family.
(16) Mr Poole, John and James McGuigan, Travers Duncan and other
individuals associated with Cascade Coal P/L.
(17) Unspecified individuals associated with the White Group.2168
2022 Earlier in my deliberations to verdict, I indicated that I would deal with the
direction sought by the accused in respect of those individuals when
considering whether the Crown has proved its case. That approach is in
accordance with Mahmood v Western Australia.2169
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.2170
2024 In respect of those witnesses the Crown classified as “close associates” of an

accused person, Mr Neil submitted that it was insufficient that the Crown
merely suspected that those witnesses may be unreliable for that reason; there
must be “identifiable circumstances which clearly establish” unreliability. 2171
2168
MFI 192 pp 92-96.
2169
(2008) 232 CLR 397; [2008] HCA 1.
2170
MFI 192 p 92; Mahmood v Western Australia (2008) 232 CLR 397 at [27].
2171
The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38 at 576.
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2025 Mr Neil advanced the further submission that the Crown’s reliance on s 18 of
the Evidence Act in not calling either of Gerard Obeid or Paul Obeid was
“misguided”, particularly in the case against Moses Obeid.
2026 The Crown submitted that the Court would not regard it as appropriate to give a
Jones v Dunkel direction because the Crown’s failure to call those witnesses
does not give rise to a reasonable doubt about the guilt of the accused. In
respect of those witnesses it identified as “close associates” of the Obeids, the
Crown submitted that the nature of their involvement in relevant events would
render their evidence unreliable. The Crown also submitted that the Cascade
Coal P/L witnesses were, from their perspective, involved in “a series of
legitimate arm’s length commercial transactions” and, for that reason, “their
understanding and involvement is not material to determination of the offence
charged”.2172
2027 The Crown also submitted that, in any case, the appropriate direction would be
that the Court, sitting as the tribunal of fact, would not speculate as to why the
witnesses had not been called, or what their evidence might have been, and to
decide the case on the evidence before the Court.
2028 I decline to make a direction either in the terms accepted by the Crown or as a
Jones v Dunkel direction.
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.2173
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
2172
MFI 181 p 23.
2173
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27].
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Dunkel direction was sought could have given evidence which was capable of
raising a reasonable doubt about the guilt of the accused.
Ultimate findings
2031 For the avoidance of doubt, I am satisfied the Crown has proved beyond
reasonable doubt that each of the accused intentionally entered in an
agreement with Mr Macdonald that:
(a) in the public office he occupied as Minister for Mineral Resources

in the Executive Government of the State of New South Wales;
and
(b) in the course of or connected with that public office;
(c) he would misconduct himself by doing acts in connection with the
granting of an EL at Mount Penny for the improper purpose of
benefiting Edward Obeid and/or Moses Obeid and/or members
of their family and/or their associates; and, further, that
(d) each of the accused knew and intended that by Mr Macdonald
agreeing to act in that way, he would be acting wilfully, that is
that he would act knowing that he was breaching the duties and
obligations of impartiality and confidentiality by which he was
bound as a Minister in the Executive Government of the State of
New South Wales; and
(e) that he would act in that way without reasonable excuse or
justification.
2032 I am also satisfied the Crown has proved beyond reasonable doubt that at the
time the conspiracy was forged each of the accused knew that Mr Macdonald
was subject to a duty of confidentiality and a duty of impartiality in the
discharge of the public office he held as the Minister for Mineral Resources,
and that they each knew that what he agreed that he would do in that public
office would constitute a breach of either or both of those duties and
obligations.
2033 I turn now to consider whether I am also satisfied that the seriousness of that
offending merits criminal punishment, as to which it is necessary for me to
make an affirmative finding before a guilty verdict could be entered against
each accused.
5KIPGFD[#WUV.++
Am I satisfied of the seriousness of the offending and that it merits criminal

punishment?
2034 The Crown submitted that I would be satisfied beyond reasonable doubt that
the misconduct each of the accused intended that Mr Macdonald would commit
pursuant to the agreement into which they each intentionally entered has the
requisite quality of seriousness having regard to the responsibilities of the
Office of Minister for Mineral Resources Mr Macdonald occupied throughout
the conspiracy period, his responsibilities as the holder of that Office and the
importance of the public objects which that Office and its Officeholder served,
including the nature and extent of the departure from those objects, such as to
merit criminal punishment.2174
2035 In its written submissions the Crown developed that submission referable to the
following factors:
a. the gravity of the breach of the duties of impartiality and confidentiality which
are intrinsic to appropriate Ministerial conduct constituted a most significant
departure from the public objects which the Office and the Officeholder serve;
b. the misconduct was planned and the execution of the conspiracy was
protracted involving multiple acts of misconduct;
c. the Minister’s responsibility to act in the best interests of the people of NSW
was completely abrograted;
d. the value of the commercial advantage that the misconduct conveyed was
significant ($60 million, plus the sale of Cherrydale Park, Donola and Coggan
Creek at a significant profit - albeit incompletely realised); and
e. the effect is to undermine the importance of the public objects of Ministerial
Office and to bring the Office into disrepute.2175
2036 I regard that submission, in part at least, as an overstatement of what is
available to me to inform the qualitative assessment which it is for me to
undertake at this stage of my deliberations to verdict, where I am satisfied the
conspiracy is proved beyond reasonable doubt and where I am satisfied, also
beyond reasonable doubt, that each of the accused intentionally participated in
that conspiracy.
2037 In one part of its closing submissions the Crown appeared to accept that,
having regard to the framing of the indictment, the quantitative assessment of
the seriousness of the misconduct is to be undertaken referable to the
2174
MFI 181 par 740.
2175
MFI 181 pp 167-168.
5KIPGFD[#WUV.++
misconduct which was the subject of the agreement, namely that Mr

Macdonald would wilfully misconduct himself without reasonable cause or
justification in breach of his Ministerial duties and obligations in connection with
the granting of an EL at Mount Penny and concerning the interests of his co-
conspirators and/or members of their family and/or their associates. By that
submission, I take the Crown to submit that the assessment of seriousness
must be made referable to acts of misconduct which were necessarily
described in the indictment at a high level of generality because, while the
object of the agreement was clear and unambiguous, the particular ways Mr
Macdonald would misconduct himself in executing the agreement could not be
presaged by the accused at the time the agreement was reached.
2038 However, in relying on the fact that the execution of the conspiracy was
protracted and involved multiple acts of misconduct (in (b) above); and in
focusing on the very significant, albeit incompletely realised, value of the
commercial advantage that the misconduct generated in (d) above; is to focus,
in my view impermissibly, on the manner in which the conspiracy was executed
and not on the scope or object of the conspiracy at the time the agreement was
forged and the seriousness of the acts of misconduct which it was agreed
would be committed by Mr Macdonald as Minister for Mineral Resources in
wilful breach of his Ministerial obligations and duties.
2039 Although, for the purposes of concluding my deliberations to verdict and

making the requisite assessment of the seriousness of what was
comprehended by the conspiracy, I do not propose to focus upon the multiple
ways in which Mr Macdonald executed the agreement, that does not diminish,
in any way, the gravity of the agreement which had as its object that Mr
Macdonald would misconduct himself as the Minister for Mineral Resources in
connection with the granting of an EL at Mount Penny for the improper purpose
of advancing, promoting or securing the private interests of his co-conspirators
or those associated with them. In fact, on one view, the open-ended nature of
that agreement and the breadth of its scope, which I interpret as allowing for Mr
Macdonald to do what he could when the opportunity presented itself as
Minister for Mineral Resources in connection with the granting of an EL over
land he knew was owned or controlled by his co-conspirators or those
5KIPGFD[#WUV.++
associated with them, makes what he and Edward Obeid and Moses Obeid
agreed to do serious in the extreme.
2040 As I have set out at some length in the course of my deliberations to verdict, as
the Minister for Mineral Resources Mr Macdonald had significant powers under
the Mining Act, the exercise of which were necessarily subject to the implied
obligation that they are exercised for legitimate purposes in the public interest.
As Minister for Mineral Resources he also exercised supervisory control over
the DPI from whose officers and executives he took advice and to whom he
gave directions in their management of coal resources in New South Wales.
2041 It follows, without the need for further elaboration, that the scope and object of
the agreement comprehended by the conspiracy constituted a gross departure
from Mr Macdonald’s responsibilities as the Minister for Mineral Resources.
Those responsibilities included ensuring that the exploitation of coal resources
in New South Wales did not advantage one stakeholder over other potential
stakeholders and that the processes designed to ensure that objective were at
all times transparent and the highest standards of probity strictly adhered to.
2042 By agreeing to act in wilful breach of his Ministerial duties and obligations in
connection with granting of an EL at Mount Penny for the improper purpose of
conferring an advantage on a cohort of private people, including the co-
conspirators themselves, self-evidently denigrates the public objects which the
Office of the Minister for Mineral Resources is designed to serve and the
objects which Mr Macdonald was obliged to serve in the public interest.
2043 It is fundamental to our system of government that Ministers who occupy office
as Members of the Executive Government are entrusted with powers, duties
and responsibilities exclusively for the public benefit. That is not simply an
arcane feature of the Westminster system as we have inherited it. The people
of New South Wales are entitled to expect that, in the Office of a Minister in the
Executive Government of New South Wales, consistent with the oath or
affirmation that their elected representatives take when admitted to that Office,
that he or she will act as a Minister of the Crown at all times conscientiously
and honestly in the public interest. The very solemnity of that promise
recognises that the exercise of Ministerial powers, duties and responsibilities in
5KIPGFD[#WUV.++
the public interest will be rendered nugatory if a Minister is motivated by

personal interests or, as is the case here, where Mr Macdonald, in his capacity
as Minister for Mineral Resources, agreed with another member of Parliament
and a member of that person’s family that he would deliberately breach his
duties and obligations to advantage, favour or promote their personal financial
interests.
2044 Counsel for the accused advanced no submissions to how the requisite
assessment of seriousness might be made or whether the seriousness of the
misconduct which I might find they each intended that Mr Macdonald commit
merited criminal punishment.
2045 In all the circumstances, and in concluding my deliberations to verdict, I am

satisfied beyond reasonable doubt that the misconduct each of the accused
intended that Mr Macdonald would commit pursuant to the agreement into
which they each intentionally entered as framed in the indictment, has the
requisite quality of seriousness such as to merit criminal punishment for each
of them.
Verdicts
2046 On the charge of conspiracy to commit misconduct in public office upon which
each of the accused was arraigned on 12 February 2020, I find each of the
accused guilty.
2047 I direct that a conviction against each of them be entered.
**********
Annexure 1 - Dramatis Personae (502812,

pdf)http://www.caselaw.nsw.gov.au/asset/17ab2dc0c3eb00159763fc56.pdf
Annexure 1 - Dramatis Personae (6110892,

rtf)http://www.caselaw.nsw.gov.au/asset/17ab2dc76c4bc3412ec3f30c.rtf

Eddie, Moses Obeid and The Left Testicle Guilty of Conspiracy Over Public Office Corruption

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Eddie, Moses Obeid and The Left Testicle Guilty of Conspiracy Over Public Office Corruption

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5KIPGFD[#WUV.

New South Wales

Case Name: R v Macdonald; R v Edward Obeid; R v Moses Obeid

Medium Neutral Citation: [2021] NSWSC 858

Hearing Date(s): 12 February – 6 April 2020; 31 August – 26 November

Decision Date: 19 July 2021

Jurisdiction: Common Law

Decision: Verdict of guilty entered against each accused.

Catchwords: CRIME — conspiracy to commit the common law

Legislation Cited: Coal Mining Act 1973 (NSW)

Evidence Act 1995 (NSW)

Mulcahy v The Queen (1868) LR 3 HL 306

(No 14) [2020] NSWSC 1948

Category: Principal judgment

Parties: The Crown

J Martin (Accused Macdonald)

File Number(s): 2015/212910; 2015/214251; 2015/212851

The conspiracy charged in this trial94d41fd16 - paragraph 19

Controversies as to the elements of the conspiracy chargedd57f98a14 -

The submissions of the Crownb515a9df0 - paragraph 30

The submissions of the accusedd70cf6a36 - paragraph 44

The authorities4badf85f0 - paragraph 47

Determination of the controversy as to the “final element” of the

Is the conspiracy charged an offence known to the law?d850a6805 -

Is the failure to allege an “improper purpose” fatal to the

Does the failure to specify acts of misconduct, or how they might be

Is the use of the conjunction “and/or” in the indictment fatal?e1250f850 -

Mr Neil’s additional challenges to the indictment: Does the Crown have

Is the indictment defective because of the identity of the conspirators:

What is encompassed by the concept of acts (of misconduct) in

The indictment is not defective: the elements of the offence charged as

The timeframe of the conspiracy allegedfe367f1e0 - paragraph 160

The co-conspirators rule and the operation of s 87(1)(c) of the Evidence

The Crown case as particularised7059b8928 - paragraph 175

The eight acts of misconduct, as particularised79cafd0ac - paragraph

Proving the existence of the conspiracy by inference5400547ab -

What is comprehended by Mr Macdonald’s duties of confidentiality and

How do the Ministerial duties of confidentiality and impartiality impact on

The Ministerial Code of Conducte218a5178 - paragraph 211

The DPI Code of Conduct184432a9d - paragraph 220

What is confidential information as a matter of fact and law?3df32442b -

What constitutes the duty of confidentiality under the Ministerial Code of

The relevance, if any, of s 365 of the Mining Act8ee5df8ab - paragraph

The evidence of the DPI officers as to their understanding of their duty

Mr Iemma and Mr Gibson’s evidence605a05dff - paragraph 273

What will need to be proved to constitute a breach of Mr Macdonald’s

What constitutes the duty of impartiality under the Ministerial Code of

The Shepherd fact: Mr Macdonald’s knowledge of the Obeids’

The significance of the eight acts of misconduct to proof of the Crown

What does the Crown need to establish were Mr Macdonald’s acts of

The significance of the date by which the conspiracy was in

Edward Obeid’s participation in the conspiracy (on the Crown

Moses Obeid’s participation in the conspiracy (on the Crown

The further directions by which I am bound in my deliberations to

The documentary evidence tendered in the trial, in summarya6dccbdd9

Witnesses called in the Crown case086b062b9 - paragraph 371

Parliamentary witnessese19fafc9d - paragraph 372

Bylong properties witnesses45f44337d - paragraph 375

DPI witnessesef5680f3e - paragraph 381

Ministerial staff832215f6e - paragraph 384

Monaro Mining NL witnesses94398641a - paragraph 386

Officers of the Independent Commission Against Corruption