The state's highest court has thrown out an appeal brought by jailed former NSW Labor minister Eddie Obeid against his conviction and sentence for criminal misconduct.
The 73-year-old was jailed in December for a maximum of five years for lobbying a senior bureaucrat about his family's secret business interests at Circular Quay.
On Wednesday, a five-judge bench of the Court of Criminal Appeal - headed by Chief Justice Tom Bathurst - rejected his appeal.
Asked if his father would seek leave to appeal in the High Court, Moses Obeid said outside court: "We'll see what happens."???
Obeid's legal team raised the novel argument that the courts had no jurisdiction to hear a misconduct in public office case because the matter was within the "exclusive cognisance" or jurisdiction of Parliament.
This would have had broader consequences for a number of criminal trials arising out of investigations by the state's corruption watchdog.
But the court rejected the argument and said the courts and Parliament had concurrent jurisdiction over criminal matters.
Justice Mark Leeming said there were "numerous" difficulties standing in the way of accepting the argument that Parliament alone had the power to determine the case.
This included that the NSW Parliament, unlike its state counterparts and the Commonwealth Parliament, had not enacted legislation giving it the power to deliver punishments.
Justice Leeming said this was a "very powerful factor telling against" Parliament being given that power in NSW "by judicial innovation, contrary to some two centuries of appellate authority".
Obeid's barrister, Guy Reynolds, SC, had also argued it was wrong to suggest Obeid owed a "legal duty" to act "only according to what he believed to be in the public interest and the interests of the electorate".
Mr Reynolds said there was no "duty of law" to this effect and it was a "mere matter of conscience" akin to "a duty to be nice to your mum".
But Chief Justice Bathurst said the submission "should be rejected".
The cases Obeid's legal team referred to in support of their submission that the duty "was a matter of conscience not subject to legal sanction ... do not in my opinion support the proposition", he said.
The court also rejected an argument by Obeid's lawyers that his former legal team, who appeared at the trial, had caused a miscarriage of justice by failing to object to or tender certain evidence.
There were "sound forensic reasons" for the course taken by Obeid's former lawyers during the trial, the court found.
Similarly, the court rejected an argument that the jury acted unreasonably or contrary to law by finding Obeid's misconduct was "wilful" or intentional, which is a necessary element of the offence.
Chief Justice Bathurst noted Obeid was, at the time of the offence in 2007, "a parliamentarian of 16 years standing and had been a Minister for four of those years".
"It is inconceivable that a politician of that standing and experience did not know that his duty was to serve the public interest and that he was not elected to use his position to advance his own or his family's pecuniary interests," Chief Justice Bathurst said.
Justices Peter Hamill and Natalie Adams described the sentence imposed on Obeid as, respectively, "heavy" and "stern", but agreed with Justice Robert Allan Hulme that none of the appeal grounds against sentence could succeed.
The state government announced in December that Obeid would be stripped of his annual $120,000 parliamentary pension and forced to repay more than $280,000 in taxpayer-funded legal assistance he was given during the inquiries which led to criminal charges against him.
Corrections Minister David Elliott said on Wednesday that "if Obeid does not appeal the court's decision... in October 2017, he will be required to repay" the funds.
"NSW taxpayers deserve their money back," Mr Elliott said.
