A trio of conspirators including disgraced former NSW government ministers were convicted on a flawed indictment, a barrister appealing the Supreme Court's decision argues.
They were found to have conspired to commit misconduct in public office, including through the granting of a coal exploration licence by then-resources minister Macdonald on property owned by the Obeids at Bylong Valley, in the Upper Hunter, leading to a $30 million windfall.
The trio have appealed to the NSW Court of Criminal Appeal, which heard their arguments on Monday.
The elder Obeid, 79, appeared via audiovisual link seated behind his son in Kirkconnell Correctional Centre, while Macdonald, 74, was beamed in from Lithgow Correctional Centre about 30 kilometres to the east.
Barrister Bret Walker SC said the Crown's case was poorly-run and had issues with the timing and particulars of allegations, and an indictment lacking specificity about when or whether there was any particular agreement to do certain acts.
Mr Walker said the Crown had to prove, beyond a reasonable doubt, events that occurred were subject to prior agreement to break the law and would not have happened otherwise.
There were legitimate policy considerations for Macdonald granting coal licences, he said.
"Public administration directed towards modes of a lawful exploitation of a resource does not have any element of impropriety whatsoever," Mr Walker told the court on Monday.
"The grant of an exploration licence is not an act in itself that carries any sinister overtones, regardless of your political views on the exploitation of hydrocarbons."
That would remain the case if the licence was granted "even to a friend," he said.
The conspiracy agreement was made for Macdonald to "do what he could, if and when the opportunity presented" in connection with granting the licence, knowing he would breach his duties and obligations as a minister, NSW Supreme Court Justice Elizabeth Fullerton said in her 2021 judgment.
The agreement was "intentionally described at that level of generality," she said.
Acting Justice John Basten said Justice Fullerton did not appear to have made any legal error.
"She has been very careful to articulate, as best she understands it, the Crown's case," he said on Monday.
Mr Walker said he was not criticising how the judge described the case.
"We embrace it," he said.
It showed a failure to justify the conclusions about what was later alleged to have occurred beyond a reasonable doubt.
Without specific alleged acts and particular details about them, it could not be established there was misconduct in public office, let alone a conspiracy or agreement to commit such an offence.
"It comes dangerously close to an inference of agreement being sufficient," Mr Walker said.
The hearing continues.
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