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…

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 Minic

Details

AGLC: Minic v Minic [2024] TASSC 7
Case: [2024] TASSC 7
Decision Date: 27 February 2024

CaseChat Overview and Summary

The matter of Minic v Minic came before the court where the plaintiff sought leave to file an indictment against his former spouse for alleged criminal conduct. The defendant, the Director of Public Prosecutions, opposed the application on the basis that there were no reasonable prospects of a successful prosecution. The case raised important questions about the circumstances in which a private individual could seek to prosecute another for criminal conduct and the discretion of the Director of Public Prosecutions in deciding whether to continue with such a prosecution.

The primary legal issue before the court was whether the plaintiff had standing to seek leave to file an indictment against his former spouse. The court considered whether the plaintiff had a sufficient connection to the alleged criminal conduct to justify initiating a prosecution and whether the Director of Public Prosecutions had the discretion to refuse leave to file an indictment where there were no reasonable prospects of a successful prosecution. The court also examined the relevant statutory provisions and case law to determine the appropriate exercise of the Director of Public Prosecutions' discretion.

In reaching its decision, the court held that the plaintiff did not have standing to seek leave to file an indictment against his former spouse as he did not have a sufficient connection to the alleged criminal conduct. The court noted that the Director of Public Prosecutions has discretion to decide whether to continue with a prosecution where there are no reasonable prospects of success and that this discretion should be exercised judiciously. The court held that, in this case, the Director of Public Prosecutions had correctly exercised their discretion by refusing leave to file an indictment.

Accordingly, the court refused the plaintiff's application for leave to file an indictment against his former spouse. The court found that the Director of Public Prosecutions had correctly exercised their discretion in refusing leave to file an indictment where there were no reasonable prospects of a successful prosecution. The court also noted that the private prosecution of criminal conduct is not generally encouraged and that the Director of Public Prosecutions has an important role in deciding whether to continue with such prosecutions. The court's decision in this case provides guidance on the appropriate exercise of the Director of Public Prosecutions' discretion and the standing of private individuals to initiate criminal prosecutions.

Orders