Obeid v The King; Macdonald v The King

The appellants challenged their convictions for conspiracy to commit misconduct in public office. The alleged conspiracy concerned an agreement that a Minister would exercise ministerial powers in connection with the granting of an exploration licence at Mount Penny in a way that would favour the financial interests of co-conspirators, in knowing breach of duties of impartiality and confidentiality. The process for granting exploration licences was governed by Pt 5 of the Mining Act 1992 (NSW). The appellants contended that the prosecution was required to allege agreement to do particular specified acts amounting to the predicate offence, and that the fifth element of misconduct in public office — that the misconduct be serious and meriting criminal punishment — could not be assessed where particular acts were not specified. The Court of Criminal Appeal dismissed the appeals (Macdonald, Ian v R; Edward Obeid v R; Moses Obeid v R [[2023] NSWCCA 250]). The High Court granted special leave and dismissed both appeals.

• Whether the prosecution must allege agreement to do particular specified acts amounting to the predicate offence of misconduct in public office as the object of a conspiracy
• Whether the object of a conspiracy can be described by reference to acts having particular characteristics rather than particular specified acts
• Whether a conspiracy is complete where the agreement is described by cumulative conditions necessarily amounting to the predicate offence, even though particular acts were not and could not be known at the time of the agreement
• Whether the fifth element of misconduct in public office (seriousness) can be assessed where particular acts are not specified in the conspiratorial agreement, and whether conspirators must agree on seriousness

• ratioThere is no general principle that the object of a conspiracy must be reduced to particular specified acts. The object of a conspiracy may be described by reference to acts having particular characteristics, subject to the constraints that there must be alleged and proven beyond reasonable doubt an agreement to do an act that necessarily amounts to a crime, with sufficient particularity to ensure a fair opportunity to defend the charge. — established [18, 28, 29]
• ratioA conspiracy charge is constrained by three requirements: (i) there must be alleged and proven beyond reasonable doubt an agreement; (ii) the agreement must be to do an act that necessarily amounts to a crime; and (iii) consistent with the adversary system and the necessity to ensure an accused has a fair opportunity to defend the charge, there must be provided as high a degree of particularity concerning the criminal charge as the subject matter will bear. — established [18]
• ratioThe fifth element of misconduct in public office — that the misconduct be serious and meriting criminal punishment — is not a matter about which the conspirators must agree. It is a matter for the tribunal of fact. — established [36]
• ratioA conspiracy to commit misconduct in public office is a complete offence where the alleged agreement contemplates acts to be undertaken by the public official that necessarily satisfy the elements of the predicate offence, even though it was not known and could not be known at the time the agreement was made what particular acts the official would undertake. — established [3]
• ratioA conspiracy to commit misconduct in public office may take the form of a conditional conspiracy — an agreement that the public official would act if and when the occasion arose — where the conditional aspect concerns what acts the official would do rather than whether the official would do any such acts. — established [3, 11]
• ratioAlthough it is unusual to have a conspiracy to commit a predicate offence that can be committed by only one of the conspirators, there is no reason in principle why such an unlawful agreement cannot amount to a conspiracy. — established [16]
• ratioGiven the high office and responsibilities of a government Minister, where the conspiratorial agreement contemplates the Minister exercising powers or using office to favour co-conspirators' financial interests in breach of duties of impartiality and confidentiality, there are no realistic circumstances in which such acts would not satisfy the fifth element of misconduct in public office. — established [37]
• ratioThe elements of misconduct in public office are: (1) a public official; (2) in the course of or connected to their public office; (3) wilfully misconducts themselves, by act or omission; (4) without reasonable cause or justification; and (5) where such misconduct is serious and meriting criminal punishment. — approved [14]
• ratioThe kernel of the offence of misconduct in public office is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position. — approved [15]
• ratioIt would deny the flexibility of the predicate offence of misconduct in public office to require a conspiracy charge to achieve a degree of precision to which the subject-matter does not lend itself. — applied [30]
• ratioThe more general the description of a conspiracy's object, the more difficult it may be to prove an agreement or that what was agreed necessarily amounted to a crime. — established [29]
• ratioConspiracy consists in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. — applied [16]

• approved [[2023] NSWCCA 250] — The High Court approved the Court of Criminal Appeal's reasoning and affirmed its decision dismissing the appellants' appeals against conviction.
• cited_applied R v Boston [[1923] HCA 59] — Applied as authority on the fundamental elements of conspiracy and the principle that conspiracy is complete upon agreement even without detailed planning of execution.
• cited_applied Obeid v R [[2015] NSWCCA 309] — Applied as authority on the elements of misconduct in public office.
• cited_applied R v Quach [[2010] VSCA 106] — Applied as authority on the elements of misconduct in public office.
• followed Real Estate Tool Box Pty Ltd v Campaigntrack Pty Ltd [[2023] HCA 38] — Followed as High Court authority.
• approved R v Lacey [[2016] QCA 25] — Approved as intermediate appellate authority.
• cited_applied R v Maudsley [[2021] QCA 268] — Applied as authority relevant to the elements of misconduct in public office.
• cited_applied R v Rogerson; R v McNamara (No 6) [[2015] NSWSC 1015] — Applied in the context of the factual and procedural background.

• Mining Act 1992 (NSW) Pt 5 — The process for granting exploration licences under Pt 5 was central to the factual background. The Minister for Mineral Resources had power to grant an exploration licence. The Court's reasoning recognised that the nature of the ministerial power under Pt 5 meant that the particular acts the Minister might undertake could not be known at the time of the alleged agreement, supporting the conclusion that the conspiracy could be described by reference to cumulative characteristics rather than specified acts. [5, 25, 32, 33]

This is the first High Court authority on the elements of conspiracy to commit misconduct in public office. It resolves a disputed question about the level of specificity required in conspiracy charges, definitively rejecting arguments that particular acts must be specified as the object of the conspiracy. The decision confirms that prosecutors may frame conspiracy charges by reference to cumulative characteristics of contemplated acts that necessarily satisfy the elements of the predicate offence. It also settles that the seriousness element of misconduct in public office is an objective assessment for the tribunal of fact, not a subjective element of the conspiratorial agreement. The three-part framework constraining conspiracy charges — proof of agreement, that the agreement necessarily amounts to a crime, and sufficient particularity — provides an authoritative structure for future conspiracy prosecutions, particularly in complex regulatory contexts where specific acts cannot be predetermined.

• Prosecutors charging conspiracy to commit misconduct in public office need not specify the particular acts agreed upon; it is sufficient that the agreement is described by cumulative conditions that necessarily satisfy the elements of the predicate offence (at [28]–[30], [35]).
• The three constraints on conspiracy charges are: (i) proof of agreement beyond reasonable doubt; (ii) the agreement must be to do an act that necessarily amounts to a crime; and (iii) particularity as high as the subject matter will bear (at [18]).
• The more generally the object of a conspiracy is described, the more difficult it may be to prove the agreement or that what was agreed necessarily amounted to a crime — generality in framing carries an evidentiary cost (at [29]).
• The fifth element of misconduct in public office (seriousness) is not a matter about which conspirators must agree; it is assessed objectively by the tribunal of fact (at [36]).
• Where the alleged conspiracy involves a government Minister exercising powers to favour co-conspirators' financial interests, the seriousness threshold will virtually always be met given the high office and responsibilities of a Minister (at [37]).
• A conspiracy to commit misconduct in public office may be framed as a conditional conspiracy — an agreement that the official would act if and when the occasion arose — and is complete upon the making of the agreement (at [3], [11]).
• It is unnecessary to resolve whether the 'but for' element is truly an element of misconduct in public office or simply describes circumstances in which conduct amounts to breach of duty; the Court left this open (at [13]).

• [[2023] NSWCCA 250]
• [[2023] HCA 38]
• [[2015] NSWCCA 309]
• [[2010] VSCA 106]
• [[1923] HCA 59]