Former NSW Labor MP Eddie Obeid, his son Moses and his one-time ministerial ally Ian Macdonald have told an appeal court that their convictions over a lucrative coal licence should be overturned because the prosecution did not prove they plotted together to commit a crime.
The Obeids, dressed in prison greens, appeared via audiovisual link in the NSW Court of Criminal Appeal from Kirkconnell Correctional Centre, while Macdonald appeared from Lithgow Correctional Centre.
Eddie Obeid (left), Ian Macdonald and Moses Obeid (right).Credit: Renee Nowytarger, Kate Geraghty
In a decision in July 2021, NSW Supreme Court Justice Elizabeth Fullerton found the trio guilty of conspiring in 2008 that Macdonald, then state mining minister, would commit wilful misconduct in public office in connection with the grant of a NSW coal exploration licence.
The licence was granted by Macdonald’s department in 2009 over land including Cherrydale Park, a farm owned by the Obeid family at Mount Penny in the Bylong Valley. The Obeids were subsequently paid $30 million by a coal company to extract them from a joint venture.
Fullerton found Macdonald committed a series of acts of wilful misconduct as part of the conspiracy, including giving Moses Obeid a confidential list of mining companies that might be invited by the government to participate in an expression of interest process for the exploration licence.
Barrister Bret Walker, SC, acting for Moses Obeid, argued in the Court of Criminal Appeal in Sydney on Monday that the Crown had not proven his client entered into an unlawful agreement with his father and Macdonald that the latter would commit specific acts in breach of his ministerial duties of impartiality and confidentiality.
Walker said there was a “complete absence of material akin, for example, to ... [an] intercepted conversation of people plotting” to commit a crime.
“If you don’t know what the acts are that the conspirators have agreed will happen, committed by one or other of them ... you won’t be able to show that the conspirators knew of matters that would render those actions criminal,” Walker said.
Fullerton found in 2021 that Macdonald used information he obtained as minister, including the July 2008 list of companies, “to confer a private interest on Moses Obeid and his family”.
That information “conferred a significant benefit on the Obeids as the owners of Cherrydale Park (a fact of which Mr Macdonald was aware)”, Fullerton said, particularly when Moses Obeid was “already aware that a coal release area was to be released to tender at Mount Penny.”
But Walker said “this case has nothing to do with allowing a would-be tenderer to have a peek at the tenders that are already in, for example.” He argued the information allegedly provided in this case was not confidential.
Fullerton sentenced Macdonald to a maximum of nine years and six months in prison; Obeid senior to a maximum of seven years; and Obeid junior to a maximum of five years. They are eligible for parole between October 2024 and January 2027.
Barristers for Obeid senior, Macdonald and the Crown have yet to make oral submissions to the court.
The hearing continues on Tuesday.
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