Disgraced former NSW minister Eddie Obeid was not bound by the parliamentary code of conduct but by the law, five Appeal Court judges have been told.
Peter Neil SC, for the Crown, was replying to submissions made by Obeid's barrister about the "dumbfounding" failure to have the MPs' code put before the jury, a code which did not outlaw his behaviour.
"What the relevant duties, responsibilities and obligations of an MP were, are quite critical in this case," said Guy Reynolds SC on Tuesday in the NSW Court of Criminal Appeal.
Obeid is challenging his conviction for wilful misconduct in public office and his sentence.
The 73-year-old was jailed for at least three years in December after being found guilty of lobbying a senior public servant in 2007 over lucrative Circular Quay leases without revealing his family's stake in the outlets.
The former ALP powerbroker, wearing prison greens, appeared via video link while family members, including his wife, were in the public gallery
Mr Reynolds submitted that the issues in Obeid's case were within the "exclusive cognisance" of the NSW parliament and should not have been determined in the Supreme Court.
"It would be an affront to the dignity of parliament" for a court to assert it knows better than parliament what standards of conduct should apply to MPs in their official capacity, he said.
The guidebook for MPs and their code of conduct should have been, but were not, before the jury which would have enabled Obeid's lawyer to make more than 40 points to the jury, Mr Reynolds said.
For example, the rules did not impose any obligation on an MP to make disclosure of conflicts when dealing with a public servant and his lawyer could have held up the material, saying: "Where does it talk about public servants?"
Justice Robert Allan Hulme commented that jurors might think Mr Reynold's submissions were a "nice lawyers' argument", asking: "Why do you need it written down that you can't behave this way?"
Jurors might think even though certain behaviour was not written down, it was "amoral, unethical and deceptive", the judge said.
Mr Neil said the defence had known months before the trial that the prosecution was not relying on a breach of the MPs' code of conduct.
"It's not the standard of the parliamentary code of conduct, it's the standard of the Common law," he said.
"This was a deliberate piece of conduct to gain a pecuniary advantage of significance, not in the public interest but in the interest of the appellant," he said.
The hearing is continuing.
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