The "Badgerys Creek land deal" subject matter
287 In April 2017, Mr Maguire met Ms Waterhouse and became aware that her family owned land on the western boundary of the Badgerys Creek airport site ([8.81], [8.82]).
288 In early September 2017, Mr Maguire told the applicant that he was interested in a land deal at Badgerys Creek, which "would give him enough money to pay off his debts in the order of $1.5 million" ([13.83]). There were discussions about that land deal between the applicant and Mr Maguire on 5, 6 and 7 September 2017 ([13.79]–[13.94]). At the time of these discussions, Badgerys Creek and the Western Sydney Airport was a "critical, and ongoing, economic development for the NSW Government" ([13.86]). In one of those discussions, Mr Maguire said that "we've done our deal so hopefully that's about half of all that gone now", to which the applicant responded "That's good… I don't need to know about that bit" ([13.87]).
289 In October 2017, Mr Maguire told the applicant that Ms Waterhouse had property at Badgerys Creek and that he had been involved in trying to resolve road access issues for her with the RMS ([8.212], [13.122]). On 18 October 2017, Mr Maguire took Ms Waterhouse to Ms Berejiklian's office and asked her staff to solve Ms Waterhouse's "big problem", which was a need for road access to her Badgerys Creek property ([13.121]–[13.125]).
Conclusion as to ground of review 11
290 The applicant submits that it is "pivotal to the application of s 11(2) that there be sufficient specificity in a putative 'matter' as to permit sensible consideration of whether there were 'reasonable grounds' for a suspicion of corrupt or possibly corrupt conduct". Each of the matters which are the subject of the Commission's s 11 findings is identified by reference to the conduct or subject matter, timing and persons involved, and on its face permits a sensible consideration of whether there were grounds for suspicion of corrupt or possibly corrupt conduct. These reasons outline each of these matters in order to test whether that is so, and do not seek to describe all the circumstances which were subject to evidence taken into account by the Commission. This being the position, and irrespective of the scope of a "matter" which can be the subject of's 11(2), there was no material error on the part of the Commission.
291 Ground of review 11 should be rejected.
Ground of review 12
292 Ground of review 12 is:
Further or in the alternative to ground 1, the Commission, having found that:
- a. 'the obstacles to a prosecution [of Ms Berejiklian] would be so formidable as to make it reasonably clear that any advice from the DPP with respect to the matter would be to the effect that no prosecution would be commenced' (R [13.416]), and
- b. 'there is insufficient admissible evidence ... for inferences to be drawn that would prove the mens rea of the offence of misconduct in public office to the required standard of beyond reasonable doubt in any criminal prosecution' (R
