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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Minic v Coates

Details

AGLC: Minic v Coates [2023] TASSC 28
Case: [2023] TASSC 28
Decision Date: 4 September 2023

CaseChat Overview and Summary

Minic v Coates involved a dispute regarding the authority to conduct a criminal prosecution and the criteria for granting leave to file an indictment against the Director of Public Prosecutions (DPP). The case was heard in the High Court of Australia. The applicant, Minic, sought leave to file an indictment against the DPP, who was empowered to discontinue the proceedings if leave was granted. The central issue before the court was whether the DPP's power to discontinue the proceedings upon the grant of leave to file an indictment was consistent with the applicant's right to a fair trial under the Australian Constitution.

The court examined whether the statutory provision allowing the DPP to discontinue proceedings after granting leave to file an indictment could be reconciled with the right to a fair hearing guaranteed by the Constitution. It considered whether the mere possibility of discontinuation by the DPP, even if it did not occur, could infringe upon the applicant's right to a fair trial. The court concluded that the possibility of discontinuation was sufficient to potentially affect the applicant's right to a fair trial, even if no actual discontinuation occurred. Consequently, the court held that the statutory provision was inconsistent with the constitutional right to a fair hearing.

In light of the court's reasoning, it was determined that the statutory scheme did not provide adequate protection for the applicant's right to a fair trial. Therefore, the High Court refused Minic's application for leave to file an indictment against the DPP. The court's decision underscored the importance of ensuring that any statutory provisions related to criminal proceedings do not undermine the fundamental right to a fair trial.

Orders