Minic v Minic

[2024] TASSC 7

[2024] TASSC 7

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Minic v Minic [2024] TASSC 7
PARTIES:	MINIC, Dragan
v
MINIC, Angela
FILE NO:	2047/2022
DELIVERED ON:	27 February 2024
DELIVERED AT:	Hobart
HEARING DATE:	4 November 2022
JUDGMENT OF:	Martin AJ
CATCHWORDS:

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

Director of Public Prosecutions Act 1973, s 12. Minic v Coates [2023] TASSC 28, considered. Aust Dig Criminal Law [3059]

REPRESENTATION:

Counsel:

Applicant:	In Person
Respondent:	M Flanagan

Solicitors:

Respondent:  Murdoch Clarke

Judgment Number:	[2024] TASSC 7
Number of paragraphs:	17

Serial No 7/2024

File No 2047/2022

DRAGAN MINIC v ANGELA MINIC

REASONS FOR JUDGMENT	MARTIN AJ 27 February 2024
Introduction

1             By application filed on 3 August 2022 the applicant sought leave to file an Indictment alleging that the respondent, the applicant's former wife, committed 82 criminal offences in the course of Family Court proceedings between the parties. Subsequently a number of written submissions were filed by the applicant. Although not a party, the Director of Public Prosecutions (DPP) filed submissions on 31 October 2022, and the respondent on 3 November 2022.

2   The written submissions of the DPP summarise the proposed charges as follows:

"	False Swearing in breach of s 95 (11 counts);
•	Suppressing Evidence in breach of s 99 (26 counts);
•	Disobedience to Lawful Authority in breach of s 118 (14 counts);
•	Attempting to Pervert Justice in breach of s 299 and s 105 (11 counts);
•	Attempting to Dishonestly Acquire a Financial Advantage in breach of s 252A (9 counts); and
•	Attempting to commit Fraud in breach of s 253A (11 counts)."

3            The application was heard by Geason J who reserved his decision on 4 November 2022. While the decision was reserved, on 2 August 2023 the applicant filed an application seeking an order that Geason J recuse himself from determining the matter. That application has not been resolved.

4             It appears that Geason J will not provide a decision in respect of either application in the foreseeable future. In those circumstances the parties and the DPP advised the Court that they consented to the matter being allocated to another judge for determination.

5            On 23 February 2024 I held a directions hearing during which the applicant requested that another judge be allocated to determine the matter. The DPP agreed with that course.

6   For the reasons that follow, the application is dismissed.

Principles

7 The principles to be applied are not in doubt. Primary responsibility for the institution and conduct of proceedings on Indictment rests with the DPP. Section 420 of the Criminal Code provides that with leave of the Supreme Court, any person may file an Indictment against any other person. Section 420(2) provides that leave shall be granted "upon such terms and conditions" as the Supreme Court, "for the purpose of securing the substantial ends of justice thinks fit to direct".

8 Section 12 of the Director of Public Prosecutions Act 1973 (the DPP Act) identifies the functions of the DPP. It is a core function of the DPP to institute and undertake, on behalf of the Crown, criminal proceedings. Significantly, however, allied with the function of instituting and undertaking criminal proceedings is the function of taking over and continuing, or discontinuing, proceedings instituted by another person (other than proceedings instituted by the Attorney-General or

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Solicitor-General). Section 12 identifies a broad range of functions and duties resting with the DPP in relation to prosecutions:

"12 Functions of Director

(1) The functions of the Director are –

(a)

where he considers it desirable to do so –

(i)	to institute and undertake, on behalf of the Crown, criminal proceedings against a person in respect of a crime or an offence alleged to have been committed by that person; and
(ii)	subject to subsection (2) , to take over and continue any such proceedings that have been instituted or undertaken by another person; and
(iii)	subject to subsection (2) , to discontinue at any stage any such proceedings that have been instituted or undertaken by the Director or by another person; and

(b)

to give advice and assistance to –

(i)	a prescribed person; or
(ii)	a person to whom, in a particular case, the Attorney-General may direct or request the Director to give advice and assistance –

in respect of the conduct of any criminal proceedings in the conduct
of which that person is concerned; and

(c)

on behalf of the Crown or any other person, to have the conduct, as practitioner, of any proceedings (other than proceedings to which paragraph (a) or paragraph (b) of this subsection relates) when so directed or requested by the Attorney-General; and

(d)

to instruct, and supervise the work of, counsel and State Service officers and State Service employees and other persons whose services are provided or procured for the conduct of any proceedings or otherwise for assisting the Director in the performance of his functions; and

(e)

to act as counsel for the Crown in right of the State or for any other person for whom the Attorney-General directs or requests the Director to act; and

(ea)

to issue to –

(i)	prosecutors; and
(ii)	persons acting on the Director's behalf; and
(iii)	the Commissioner of Police; and
(iv)	any persons or Agencies who conduct prosecutions –

guidelines in relation to prosecutions, including in respect of the offences, or classes of offences, that are to be referred to the Director for the institution and conduct of proceedings; and

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(eb)	to grant indemnities from prosecution, whether on indictment or otherwise; and
(ec)	to give undertakings to persons that answers given, or statements or disclosures made, by those persons will not be used in evidence against those persons; and
(f)	to carry out such other functions ordinarily performed by a practitioner as the Attorney-General directs or requests.

(2) The Director may not take over, continue, or discontinue proceedings that have been instituted or undertaken by the Attorney-General or the Solicitor- General except with the approval of the Attorney-General or of the Solicitor- General, as the case requires."

9 The power of the Supreme Court to grant leave to a person other than the DPP to file an Indictment against another person alleging the commission of a crime is to be exercised in the context of the statutory scheme for prosecutions found in the DPP Act. In their written submissions, the respondent and the DPP identified relevant principles and a number of authorities which it is unnecessary to canvass in detail. It is sufficient to note that included in the relevant factors are the availability of other remedies, the need for circumstances going beyond the particular interests of the applicant and the importance of the view of the DPP, coupled with any decision made by the DPP that, should leave be granted and the Indictment filed, the DPP would discontinue the proceedings.

10   Obviously, the nature of the charges and the prospects of success are relevant factors.

Discussion

11           The various crimes which the applicant asserts were committed by his former wife all arise out of proceedings between the parties in the Family Court. The material before me does not provide evidence to support a view that the charges possess reasonable prospects of success. To the contrary, the helpful summary contained in the written submissions of the DPP strongly suggests the absence of reasonable prospects.

12          In addition, as the alleged offending conduct arose in the course of the Family Court proceedings, the appropriate venue for airing of the complaints is in that court.

13           The applicant has deposed that the Australian Federal Police declined to conduct any investigation. Further, the DPP has advised the Court that if leave was granted permitting the applicant to file an Indictment, the DPP would take over the prosecution and enter a nolle prosequi thereby discharging the prosecution. In the view of the DPP, there are no reasonable prospects of securing a conviction based on admissible evidence.

14 In response to the submissions of the DPP, the applicant provided rambling submissions discussing numerous irrelevant matters which it is unnecessary to canvass. Those submissions were filed on 29 November 2022 and were followed by an application, amended as at 28 June 2023, seeking to file an Indictment against the Director personally. The applicant contended the Director had committed the crime of Wilful Disobedience to Lawful Authority (s 118(1) of the Code), together with the crime of Attempting to Pervert the Course of Justice (ss 105 and 229 of the Code). The applicant asserted that the Director had failed to comply with an order in the current proceedings for the filing of submissions and, as the submissions were filed 20 days late, the DPP was guilty of the offence of disobeying an order of the Court contrary to s 118(1) of the Code. Further, the applicant asserted that the Director had committed the crime of Attempting to Pervert the Course of Justice by informing the Supreme Court of an intention to discontinue any proceedings instituted by the applicant should the Court grant leave pursuant to s 420.

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15           As was inevitable, Marshall AJ dismissed the application[1]. That application was doomed to failure. It provides an indication as to the misconceived thought processes by which the applicant has been guided in connection with these proceedings.

Conclusion

[1] Minic v Coates [2023] TASSC 28.

16           The proposed prosecution would not serve the best interests of the State or justice. It is readily apparent that the applicant is seeking to pursue his own interests in punishing his former wife for her perceived misconduct in the Family Court proceedings. The appropriate venue for airing such complaints was in those proceedings in the Family Court. Leave would be futile. Not only are there dismal prospects of success, but the DPP, quite properly, would take over and discontinue any proceedings instituted by the applicant should leave be given.

17          For these reasons, the application for leave to file an Indictment is refused. In these circumstances, the application for Geason J to recuse himself has been overtaken by this decision.