Written by Andrew Tiedt
April 8, 2016
The legal community has been in a frenzy of speculation about the trial of Eddie Obeid before the NSW Supreme Court. Obeid is of course a former member of the NSW Upper House.
The trial was dramatically abandoned earlier this year after new evidence was unexpectedly revealed.
Thanks to the expiry of some non-publication orders, we now know that Obeid appealed to the Court of Appeal and, later, the High Court to try and stop his trial.
His argument was that the Supreme Court does not have jurisdiction to try him – he says only the NSW Upper House is able to do so.
The High Court was not considering that question in full – rather, a single judge of the High Court was asked to consider whether his trial should be stayed (in other words, held over) until the High Court had the opportunity to hear his appeal in full.
Gaegler J, one of the justices of the High Court, refused to do so. He did so for a number of reasons.
Firstly, the Supreme Court judge running the trial (who had already dismissed this application) had assessed Obeid’s prospects of success on the appeal as being “very low”.
Secondly, if Obeid is convicted at trial, he will have the opportunity to run the appeal in full then. He will by then have been put to the expense of running the trial (not to mention the publicity), and have been sentenced, but he will have a right of appeal.
Finally, staying the trial to allow the appeal to be heard now would, in his Honour’s opinion, unnecessarily fragment the trial process. The High Court in particular prefers to have matters decided in full before they hear any appeals from it, or else matters can be heard on appeal multiple times through a trial. His Honour did not think that appropriate, and on that basis he rejected the appeal.
It of course remains to be seen whether a jury will find Obeid guilty. If that occurs, we will know doubt see this point argued more fully before the High Court at another time.