Minic v Coates

[2023] TASSC 28

[2023] TASSC 28

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Minic v Coates [2023] TASSC 28
PARTIES:	MINIC, Dragan
v
COATES, Daryl (SC)
FILE NO:	1088/2023
DELIVERED ON:	4 September 2023
DELIVERED AT:	Hobart
HEARING DATE:	21 June 2023 (written submissions finalised on 8 August
2023)
JUDGMENT OF:	Marshall AJ
CATCHWORDS:

Criminal Law – Procedure – Persons entitled to conduct prosecution – Leave sought to file indictment against Director of Public Prosecutions – Director of Public Prosecutions empowered to discontinue proceedings if leave granted – No reasonable prospects of successful prosecution – Leave to file an indictment refused.

Aust Dig Criminal Law [3059]

REPRESENTATION:

Counsel:

Applicant:	Self represented
Respondent:	K Siejka

Solicitors:

Respondent:  Director of Public Prosecutions

Judgment Number:	[2023] TASSC 28
Number of paragraphs:	15

Serial No 28/2023 File No 1088/2023

DRAGAN MINIC v DARYL COATES SC

REASONS FOR JUDGMENT MARSHALL AJ 4 September 2023

1 By an amended application, dated 28 June 2023, the applicant seeks leave to file an indictment against the respondent. The application is made pursuant to s 420 of the Criminal Code (the "Code"). Section 420(1) provides that:

"Any person may, by leave of the Supreme Court, file an indictment against any other
person for any crime alleged to have been committed by such other person."

2 The applicant contends that the respondent has committed the crime of wilful disobedience to lawful authority under s 118(1) of the Code. He also submits that the respondent has committed the crime of attempting to pervert the course of justice under ss 105 and 299 of the Code.

3 The applicant is a person who was dissatisfied with the conduct of his former wife during family law proceedings and alleged that his wife had committed criminal offences during those proceedings. The respondent holds the office of Director of Public Prosecutions in the State of Tasmania. He declined to prosecute the applicant's former wife. The applicant then made an application to the Court for leave under s 420(1) of the Code to bring a private prosecution against his former wife. That matter is reserved before another judge of this Court. The State intervened in those proceedings and informed the Court that if the applicant was given leave to commence a private prosecution against his former wife, the Director of Public Prosecutions would issue a nolle prosequi, being a formal notice to abandon the prosecution after taking it over from the applicant.

4 Such action is permitted by s 12(1)(a)(ii) and (iii) of the Director of Public Prosecutions Act 1973. Section 12(1)(a)(ii) of that Act allows the Director, "when he considers it desirable to do so" to "take over and continue any such proceedings that have been instituted or undertaken by another person" and at s 12(1)(a)(iii) "to discontinue at any stage any such proceedings that have been instituted … by another person".

5             Having considered that there was no reasonable prospect of obtaining a conviction against the applicant's former wife and having declined to prosecute her initially, it was unsurprising that the Director intended to discontinue any private prosecution that the applicant may have been given leave to commence against the applicant's former wife. In informing the judge in the application to commence a private prosecution against the applicant's former wife that that was the intention of the Director, the State intervening in that proceeding was doing no more than informing the judge that the Director would act accordingly if leave was granted to the applicant.

6 In so doing the State was informing his Honour of a position which the Director was entitled to take under s 12 of the Director of Public Prosecutions Act. In having that intention and expressing it (through Counsel for the State), the Director did not, on any rational view, attempt to pervert the course of justice and indeed did not pervert the course of justice. He was simply foreshadowing that he would perform a function which he was entitled to perform.

7            It is a function which is not judicially reviewable; see Maxwell v The Queen [1996] HCA 46,184 CLR 501 at 534, per Gaudron and Gummow JJ, where their Honours said:

2   No 28/2023

"It ought now be accepted … that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi ….".

8 Leave to issue a private prosecution under s 420(1) is only permitted in exceptional circumstances; see Roberts-Smith J in Re Section 720 Criminal Code (WA); ex parte Michael [2002] WASC 208 at [27].

9             Leave to commence a private prosecution against the respondent in respect of the allegations of the applicant that the respondent perverted the course of justice, or attempted to do so, is refused. No exceptional circumstances exist and for the above reasons any such prosecution has no reasonable prospect of succeeding.

10 Leave is also refused to commence a private prosecution in respect of the alleged offence of disobedience to lawful authority contrary to s 118 of the Code.

11 Section 118(1) of the Code provides that:

"Any person who, without lawful excuse, disobeys any order … given by any court
… is guilty of a crime".

12           The applicant relies on the failure of the State to comply with a timetable imposed by a judge of the Court in the proceedings requesting leave to issue a private prosecution against the applicant's former wife. The State filed its submissions 20 days late. There is no evidence that there was any prejudice to any party. In any event, the respondent was not directed or ordered to do anything. That obligation was on the State and the submissions filed late were made by the State.

13           There is no reasonable prospect of any prosecution of the respondent by the applicant succeeding on the basis of the late filing by the State of its written submissions in the matter concerning the applicant's former wife.

14           At the second directions hearing in this matter I asked the parties to advise me in writing about whether this matter should await judgment in the applicant's application to seek leave to prosecute his ex-wife. Both parties contended that I should not do so. They were correct to so submit.

15 For the above reasons, the application made by the applicant under s 420 of the Code is rejected. The order of the Court is as follows:

(1) The applicant is refused leave to file an indictment against the respondent, in accordance with
these reasons for judgment.