Office of State Revenue v El Kazzi (No. 1)
[2013] NSWLC 18
•12 August 2013
Local Court
New South Wales
Medium Neutral Citation: Office of State Revenue v El Kazzi (No. 1) [2013] NSWLC 18 Hearing dates: 13-14/02/2013 Decision date: 12 August 2013 Jurisdiction: Criminal Before: Favretto LCM Decision: Application for stay of proceedings dismissed
Catchwords: CRIMINAL LAW - practice and procedure - application for stay of proceedings - double jeopardy principles - whether proceedings an abuse of process - applicant already subjected to pecuniary penalty Legislation Cited: Australian Crime Commission Act 2002 (Cth)
Corporations Act 2001 (Cth)
Crimes Act 1900
Crimes Act 1914 (Cth)
Criminal Procedure Act 1986
Duties Act 1997
First Home Owners Grant Act 2000
Judiciary Act 1901 (Cth)
Oaths Act 1900
Social Security Act 1947 (Cth
Social Services Act 1947 (Cth))
Taxation Administration Act 1996
Unemployment and Sickness Benefits Act 1944 (Cth)Cases Cited: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act (Guideline Judgment on High Range Prescribed Concentration of Alcohol Offences) [2004] NSWCCA 303
Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 225 CLR 256
Calcaro v Chief Commissioner of State Revenue [2004] NSWADT 158
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; 216 CLR 161
Christodoulou v R [2008] NSWCCA 102
Davis v Taylor (1996) 148 ALR 245
Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129
Director-General of the Department of Land and Water Conservation v Greentree & Anor [2003] NSWCCA 31
Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302
Elias v The Queen; Issa v The Queen [2013] HCA 31
Goodwin v Phillips (1908) 7 CLR 1
Hagipantelis v Legal Services Commissioner [2010] NSWCA 79
Hunter v Chief Constable of the West Midlands Police (1992) AC 529
Island Marine Limited v Filipowski [2006] HCA 30
Jack Brabham Holdings Pty Ltd v Button (1998) 94 FLR 278
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Joud & Ors v The Queen [2011] VSCA 158
Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68
Maxwell v The Queen (1996) 184 CLR 501
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50
Nahlous v R [2010] NSWCCA 58
Pearce v R (1998) 194 CLR 610
Pelechowski v The Registrar; Court of Appeal [1999] HCA 19
Philpot v Chief Commissioner of State Revenue (RD) [2008] NSWADT 176
R v Adler [2004] NSWSC 108
R v Allpass (1993) 72 A Crim R 561
R v Carroll [2002] HCA 55; 213 CLR 635
R v Connell [2013] NSWCCA 155
R v Chalak [1983] NSWLR 282
R v Daetz (2003) 139 A Crim R 398
R v Einfeld [2009] NSWSC 119
R v Seller; R v McCarthy [2013] NSWCCA 42
Redfern v R [2012] NSWCCA 178
Rich v Australian Securities and investments Commission [2004] HCA 42; 220 CLR 129
Rogers v The Queen (1994) 181 CLR 251
Saraswati v R (1999) 172 CLR 1
South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1
The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592
Walton v Gardiner (1993) 177 CLR 378Category: Interlocutory applications Parties: Office of State Revenue (prosecution/ respondent)
Grace El Kazzi (accused/ applicant)Representation: P Wass SC for the OSR
B Thomson of the NSW Crown Solicitor's Office for the OSR
D Miralis of Gibson Nyman Stewart for the accused
File Number(s): 2012/205920 Publication restriction: Nil
Judgment
Background
The accused ("the applicant") is charged with offences arising out of alleged false statements relating to an application for the First Home Owners Grant and related stamp duty exemption and also to false statements to officers of the Office of State Revenue ("OSR") during an investigation into her grant and stamp duty exemption. Additionally, there are offences relating to the failure to comply with conditions of the grant and stamp duty exemption.
On 28 June 2012 the OSR commenced these proceedings by the issue of ten Court Attendance notices ("the CANs"). The applicant has entered a plea of not guilty but seeks a permanent stay of the proceedings on a number of grounds and objects to the form of the CANs on the grounds of duplicity.
The Charges
The applicant is charged with the following:
(1) Making a statement with intent to obtain a financial advantage, knowing it to be false or misleading in a material particular: s 178BB(1) Crimes Act 1900 - committed on 23 September 2008.
(2) Making a statement with intent to obtain a financial advantage, knowing it to be false or misleading in a material particular: s 178BB(1) Crimes Act 1900 - committed on 15 February 2010.
(3) Willfully and corruptly making and subscribing a statutory declaration knowing it to be untrue in a material particular and deriving a material benefit as a consequence: s 25A Oaths Act 1900 - committed on 15 February 2010.
(4) Making a statement in writing to a tax officer for the purposes of the Taxation Administration Act 1996 knowing it to be false or misleading in a material particular: s 55(a) Taxation Administration Act 1996 - committed on or about 15 February 2010.
(5) Making a statement in writing to an authorised officer for the purposes of the First Home Owners Grant Act 2000 knowing it to be false or misleading in a material particular: s 44(1)(a) First Home Owners Grant Act 2000 - committed on or about 15 February 2010.
(6) Dishonestly making a statement false or misleading in a material particular intending to obtain a financial advantage: s 192G(b) Crimes Act 1900 - committed 27 April 2010.
(7) Making a statement in writing to an authorised officer for the purposes of the First Home Owners Grant Act 2000 knowing it to be false or misleading in a material particular: s 44(1)(a) First Home Owners Grant Act 2000 - committed between 27 April 2010 and 12 May 2010.
(8) Making a statement in writing to a tax officer for the purposes of the Taxation Administration Act 1996 knowing it to be false or misleading in a material particular: s 55(a) Taxation Administration Act 1996 - committed between 27 April 2010 and 12 May 2010.
(9) Failing to comply with a condition of exemption from duty under the First Home Owners Grant Scheme and failing to give written notice or repay the duty within 14 days: s 76A(4) First Home Owners Grant Act 2000 - committed on 30 October 2009.
(10) Failing to comply with a condition of the First Home Owners Grant and failing to give written notice or repay the grant within 14 days: s 20(4) First Home Owners Grant Act 2000 - committed on 30 October 2009.
Agreed Facts for the Stay Application
The parties provided agreed facts for the purpose of legal argument on the stay application.
Briefly put, the applicant entered into an agreement to purchase for $350,000 the purchase of a three-bedroom unit at an address in Liverpool, in respect of which she signed applications for financial concessions available under the First Home Owner Grant Act 2000 (the FHOG Act) to persons acquiring their first home. Those concessions require as a condition of eligibility that an applicant live in the property for at least a continuous period of six months within twelve months of the date of purchase.
The applicant made applications for (i) an exemption or concession from the payment of stamp duty that would otherwise have been payable, and (ii) the payment of a one-off $7,000 First Home Owners Grant. Both were approved by the Office of State Revenue. The applicant received an exemption from stamp duty to the value of $11,242 and was paid a $7,000 grant.
At the time of the applicant's purchase, the property was subject to a rental tenancy, which ended about four months later. Shortly thereafter the applicant entered into a rental agreement with another tenant.
Following the 12-month residency period, the OSR wrote to notify the applicant of its investigation into whether she had met the eligibility requirements for the grant and duty exemption. The applicant completed a statutory declaration indicating she had occupied the property for eight months within the residency period. She later wrote to the OSR to indicate she and her husband had lived in the property for six months, but had spent about four nights per week at her parents' home for various reasons, and had rented out two of the three bedrooms of the property to assist servicing her mortgage.
The OSR determined to reverse its decision to pay the applicant the grant and allow the duty exemption, and issued notices of assessment requiring the payment of the grant and duty amounts plus penalties amounting to 60 percent of each, to a total of $29,186. The applicant paid those amounts. She subsequently lodged an objection to the OSR's decision, but then withdrew it and sold the property.
The accused's grounds
The applicant relies upon the following grounds:
Ground One: The proceedings involve "vexing" the applicant twice for the same purported offending behaviour and in doing so breach the principles enunciated in Pearce.
Ground Two: the FHOG Act does not contemplate that proceedings for contraventions against the Act will be brought under the Crimes Act. The laying of charges under the NSW Crimes Act, is therefore beyond power of the informant and beyond the legislative intention of the Act.
Ground Three: prosecutorial abuse at the investigation phase of the proceedings is such that the Court would stay the proceedings.
Ground Four: The charges are in breach of Prosecutorial discretion to lay charges that are not in breach of Pearce. The charges are in breach of the strict "double jeopardy" principle of Pearce.
Ground 5: The charges further undermine the principles in Pearce which places a responsibility on a prosecutor to fairly frame charges. This principle was considered recently in the VCA decision of Joud where the Court upheld a permanents stay of proceedings on the basis of substantial overlap of charges and the Prosecutor's decision to lay the charges in the manner that he did.
The accused also submits that CANs 1 and 4 -10 are void for duplicity. The Court will separately publish its decision on the duplicity issue.
Relevant principles for the grant of a permanent stay
Relevantly, the principles governing the stay of proceedings broadly are:
(a) The Local Court has power to stay proceedings by necessary implication as it is required to enable the Court to effectively exercise its jurisdiction: see Pelechowski v The Registrar; Court of Appeal [1999] HCA 19 at [50]-[51]; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134-137.
(b) The justification for a stay is to prevent the court process being employed in a manner inconsistent with the recognised purpose of the administration of criminal proceedings and so constituting an abuse of process: per Mason CJ in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 30.
(c) A stay will only be granted in an extreme case and the fundamental defect which warrants a stay must be such that there is nothing a trial judge can do to relieve against its unfair consequences: The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605. Both Jago and Glennon were more recently followed in R v Seller; R v McCarthy [2013] NSWCCA 42 at [110]. In Walton v Gardiner (1993) 177 CLR 378 the High Court accepted that, before making an order staying proceedings, the correctness of the earlier Court of Appeal's statement that a court "would only be so satisfied in an exceptional or extreme case" at [22].
(d) The purpose of such a power is not only to prevent a relevant unfairness to a party but also that the continuation of the proceedings would bring the administration of justice into disrepute among right-thinking people: Walton v Gardiner at 393 following Lord Diplock in Hunter v Chief Constable of the West Midlands Police (1992) AC 529 at 536. See also the comments of Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 225 CLR 256 at [7]-[8], where their Honours, after noting the circumstances in which proceedings will constitute an abuse of process are not exhaustively defined, referred to the two fundamental policy considerations affecting abuse of process in criminal proceedings: firstly "the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State citizen alike", and secondly the failure by the court to so function "will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice."
(e) The exercise of the power extends to all of the practices and procedures of the courts (see Walton v Gardiner at [23])
(f) The principle of "double jeopardy" can have a wider application than autrefois acquit or autrefois convict and applies at various stages of the criminal justice process: prosecution, conviction and punishment: Pearce v R (1998) 194 CLR 610 at [9]; Gummow J at [64] and [68]; Kirby J at [91] and [119-120]; Director-General of the Department of Land and Water Conservation v Greentree & Anor [2003] NSWCCA 31 at [94], [109]; and even applies to proceedings before a Tribunal when considering penalty: Hagipantelis v Legal Services Commissioner [2010] NSWCA 79 at [47]-[48].
(g) Where the offences are different and although arising out of the same event or series of events there can be no double jeopardy: Pearce at [31]; Greentree at [109]. In Nahlous v R [2010] NSWCCA 58, the Court of Criminal Appeal on a sentence appeal, having said that if a permanent stay had been sought before the sentencing judge it could not have been refused, said at [17] that while "a person can by the one act commit two offences" and "where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences", it was "oppressive" to charge the applicant with two offences where they did not involve separate acts of criminality that warranted separate charges and penalties, but rather one offence was encompassed within the other.
(h) There may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process: Pearce at [29-31] following Rogers v The Queen (1994) 181 CLR 251.
(i) The decision about what charges should be laid is for the prosecution: Maxwell v The Queen (1996) 184 CLR 501; Pearce at [30] where McHugh, Hayne and Callinan JJ said:
Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.
(j) The decisions of a prosecutor are ordinarily exempt from a court's superintendence and it is not for a court to substitute its general sense of "fairness", and special circumstances are required before the court exercises its power such as "if oppression of, or prejudice to, an accused person can be demonstrated, the provision of a stay of proceedings upon the offending indictment, or count of the indictment, is warranted": Pearce per Kirby J at [117]. More recently the High Court in Elias v The Queen; Issa v The Queen [2013] HCA 31 again re-affirmed this principle at [34-35].
(k) There need not be oppressive conduct or any moral delinquency on the part of a party, rather what is decisive is the objective effect of the continuation of the proceedings: Batistatos at [69-70].
(l) Concerning the issue of "double punishment", McHugh, Hayne and Callinan JJ in Pearce said at [36-37] (footnotes omitted):
36. First, in creating offences, legislatures must necessarily proscribe conduct by reference to particular elements. A complex act by an accused may contain all the elements of more than one offence.
37. Secondly, it follows that to punish the whole of the accused's criminal conduct, there will be cases where more than one offence must be charged and punishment exacted for each.
(m) In Island Marine Limited v Filipowski [2006] HCA 30, Gleeson CJ, Heydon and Crennan JJ said of the application of the principle of double jeopardy in summary prosecutions (and this Court would add, indictable offences dealt with summarily) at [43]-[45] (footnotes omitted):
43.... As the criminal law has become more complex, and as the number of offences that may be dealt with summarily has increased, questions of double jeopardy have taken on greater significance. When criminal offences were relatively few and distinct, a single course of conduct would constitute but one offence. With the proliferation of overlapping and related statutory offences, a single allegedly criminal transaction will often yield numerous offences.
44.That it is the values of double jeopardy that inform the rules about double prosecutions is most easily demonstrated by reference to summary prosecutions. First, a conviction in a court of summary jurisdiction does not invoke doctrines of merger by which there is the substitution of a new liability. The principles that are to be applied in considering cases of successive prosecutions in a court of summary jurisdiction are developed by analogy with the principles that govern the availability of pleas in bar in a court of record. They draw upon the values encompassed in the expression double jeopardy.
45. Secondly, and no less importantly, a conviction or acquittal in a court of summary jurisdiction will be explained and supported by reasons. The bases on which a court of summary jurisdiction has acquitted or convicted of a charge are thus ascertainable. That is not always so when there has been trial by jury.
Neither party has brought to the Court's attention nor is the Court aware of any authority on the material issue in these proceedings, namely whether the power to stay, extends to where there has been an exercise of an administrative power by a member of the Executive to impose a non-curial penalty and then subsequently commence criminal proceedings relating to at least part of that conduct.
In Walton v Gardiner Mason CJ, Deane and Dawson JJ said that "there is plainly an analogy between the concept of abuse of process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings": at [26].
An analogous situation arose in R v Adler [2004] NSWSC 108, where the accused sought a permanent stay because of an abuse of process on the grounds of double jeopardy. There was no dispute that the accused had already been punished by way of pecuniary penalty orders made in civil proceedings commenced by ASIC in the Equity Division of the Supreme Court and that the criminal conduct alleged in the criminal proceedings formed part of the conduct for which he was punished in the civil proceedings (at [109]). Justice James also accepted that the pecuniary penalty order made in the civil proceedings was penal in nature (at [110]). His Honour went on to determine at [111] that:
Because the elements of the criminal offences are in all cases different from the elements of the causes of action in the civil proceedings, no plea in bar is available to Mr Adler in the criminal proceedings. However, even though no plea in bar is available, the court still has power to grant a stay of the criminal proceedings on the ground that they constitute an abuse of process. The power to grant a stay is a broad power and there is no closed list of categories of abuse of process.
Justice James accepted the Crown's submissions that in that case the criminal offences were, because of their different elements, "not merely different, but different in important respects, from all of the causes of action in the civil proceedings", and served a different purpose to the civil causes of action insofar as:
113 ... the purpose of the civil causes of action being to enforce the obligations of a director or an officer of a company or a person in a position to become involved in a contravention by a company of a civil penalty provision and to provide remedies for wrongs done against the company or its shareholders; whereas the purpose of the criminal offences is to protect the integrity of the market in shares in a company and to punish wrongs done to potential purchasers of shares in the company.
His Honour went on to say:
115 In my opinion, assuming as against the Crown that the previous civil proceedings can be assimilated to criminal proceedings and the contraventions found in the civil proceedings can be regarded as "offences," the Crown is entitled to rely on what McHugh, Hayne and Callinan JJ said in para 31 of their joint judgment in Pearce, that because "the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose."
See further his Honour's discussion at [116]-[127].
In Joud & Ors v The Queen [2011] VSCA 158, Neave JA with Ashley and Weinberg JJ A agreeing succinctly summarised the principles and said at [88]-[91] (footnotes omitted):
"Conclusion on double jeopardy
88 The basis for the concept of double jeopardy has been discussed in a number of authorities. It can be summarised as follows:
(a) Because the State's resources and power are greater than those of individuals, there is a danger that the power to prosecute may be used as an instrument of oppression.
(b) There is a public interest in finally resolving disputes and a corresponding need to limit the scope for conflicting court decisions.
(c) The consequences of a criminal conviction are very serious and individuals should be protected from repeated or multiple prosecution and trial. (This is often expressed in the maxim that individuals ought not be twice vexed for one and the same cause.)
(d) Orders and other solemn acts of the courts must be treated as incontrovertibly correct.
(e) A cause of action is changed by judgment recovered in court into a matter of record, which is of a higher nature.
(f) In Carroll, Gleeson CJ and Hayne JJ said that the principles which underpin the double jeopardy principle must be balanced against the desirability of prosecuting and justly punishing offenders for their criminal conduct.
89 Australian courts have tended to take a relatively narrow view of circumstances in which criminal proceedings should be stayed as an abuse of process, arising out of double jeopardy. In Pearce, McHugh, Hayne and Callinan JJ said that the statutory multiplication of offences means that a single course of conduct may give rise to different offences attracting different maximum penalties and that 'it follows that to punish the whole of the accused's criminal conduct, there will be cases where more than one offence must be charged and punishment exacted for each'.
90 Their Honours observed that it may be desirable for a person to be charged with multiple offences, arising out of the same facts, because the principle in R v De Simoni prevents a person convicted of a lesser offence from being punished for conduct amounting to aggravation, which would have justified their conviction for a more serious offence. As I have said, counsel for the Crown submitted that it was appropriate to charge the applicants with conspiracy because the maximum penalty for that offence is life imprisonment.
91 Despite the recognition in Pearce and Carroll that there is a power to stay proceedings to avoid the type of double jeopardy which may arise when a person is convicted of several offences arising out of the same facts, that power has been exercised very sparingly."
Grounds One: "vexing" the applicant twice
Ground Four: breach of prosecutorial discretion to lay charges not in breach of Pearce
Ground Five: prosecutorial responsibility to fairly frame charges
As these the submissions on these grounds are inextricably intertwined because of fact or principle it is appropriate to deal with them together. The applicant's primary submission is that "No one should be vexed twice if it be proved to the court that it is for one and the same cause": Pearce per Kirby J at [89] (but see the translated footnote [116]), and in doing so the court should adopt a broad approach: Joud at [112] and [141].
The applicant submits she is now twice vexed by the current proceedings because the decision of the OSR in laying the ten CANs exposes her to double jeopardy in circumstances where she has already suffered a penalty for her offending behaviour, namely the imposition of $10,944 in penalties. Now, some four years later, to be submitted to criminal proceedings for the same dishonest behaviour for which she has already been punished amounts to an abuse of process. The double jeopardy, the applicant argues, arises from the investigation under s 34 of the FHOG Act by the OSR, and subsequent determination under s 45(2) by the Chief Commissioner that she had acted with "dishonesty". The Chief Commissioner then imposed a penalty equivalent to 60 percent of the dishonestly obtained grant of $7,000 ($4,200) and stamp duty exemption of $11,242 ($6,744). Those penalties were in addition to the requirement the repay the grant and pay the stamp duty. It is not submitted that the requirement to repay the grant or pay the stamp duty is a penalty or that she is being twice vexed on that account. It should be noted and the applicant in her submissions has made no reference to ss 26 and 27 of the Taxation Administration Act 1996, which are the relevant provision for the imposition of the stamp duty penalty. These provisions are discussed below.
The crux of the applicant's twice vexed submission is that the finding by the Chief Commissioner that she acted "dishonestly" (s 45(2)) is given statutory effect by a certificate under s 4 (2) and is binding on the court as an incontrovertible fact that she acted "dishonestly". The applicant submits that the s 48(2) certificate has statutory force in court proceedings, such that it assumes elements of finality, similar to a curial decision, or at the very least, a finding of fact of dishonesty and punishment that the Court cannot exclude, reject or seek to go behind when dealing with proceedings for offences against the FHOG Act. Section 45 of the FHOG Act provides:
45 Power to require repayment and impose penalty
(1) The Chief Commissioner may, by written notice, require an applicant (or former applicant) for a first home owner grant to repay an amount paid on the application if:
(a) the amount was paid in error, or
(b) the Chief Commissioner reverses the decision under which the amount was paid for any other reason.
(2) If, as a result of an applicant's dishonesty, an amount is paid by way of a first home owner grant, the Chief Commissioner may, by the notice in which repayment is required or a separate notice, impose a penalty not exceeding the amount the applicant is required to repay.
...
48 Evidence
(1) A certificate signed by the Chief Commissioner stating that a first home owner grant was paid to a person named in the certificate on a specified date is admissible in legal proceedings as evidence of the payment.
(2) A copy of a notice issued by the Chief Commissioner imposing a penalty under this Act is admissible in legal proceedings as evidence of the imposition of the penalty.
(3) A copy of a notice issued by the Chief Commissioner requiring the payment or repayment of a specified amount is admissible in legal proceedings as evidence:
(a) that the requirement was made, and
(b) that the amount specified in the notice was outstanding at the date of the notice.
If the interpretation of s 48(2) is to the effect of the applicant's submission that the court is bound to accept the Chief Commissioner's finding of "dishonesty" in determining the relevant charged offences then potentially a constitutional issue arises under s 75B of the Judiciary Act 1901 (Cth) to the extent it offends Chapter III of the Constitution: South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1. The court need not decide that issue as the OSR has given an undertaking that it will not tender the s 48(2) certificate in the hearing on whether the charged offences are proved, although it reserves the right to tender that certificate (and properly so to the applicant's benefit) in any sentence proceedings. Without needing to determine the issue of the effect of the s 48(2) certificate it may well be argued that, as a matter of statutory construction, all the s 48(2) certificate does is to make admissible in any proceedings (for example civil proceedings to recover the penalties as a "debt due to the Crown" (s 46(1)(b), (5)) the fact, and no more, that it is "evidence of the imposition of a penalty" but not the finding of conduct; c.f. R v Adler at [124]. For the reasons that follow, the court finds that "dishonesty" is not an element of conduct that needs to be proved for the s178BB offences.
While the applicant has made no reference to the nature of the stamp duty penalty, the court will proceed on the basis that she relies upon a similar double jeopardy argument for the Commissioner's decision to impose a penalty for the stamp duty as a finding was made that her conduct " was caused wholly or partly by the intentional disregard" (s 27(2)), given that the penalty was fixed at 60 percent. Sections 26 and 27 of the Taxation Administration Act 1996 provide:
26 Penalty tax in respect of certain tax defaults
(1) If a tax default occurs, the taxpayer is liable to pay penalty tax in addition to the amount of tax unpaid.
(2) Penalty tax imposed under this Division is in addition to interest.
(3) Penalty tax is not payable in respect of a tax default that consists of a failure to pay:
(a) interest under Division 1, or
(b) penalty tax previously imposed under this Division.
27 Amount of penalty tax
(1) The amount of penalty tax payable in respect of a tax default is 25% of the amount of tax unpaid, subject to this Division.
(2) The Chief Commissioner may increase the amount of penalty tax payable in respect of a tax default to 75% of the amount of tax unpaid if the Chief Commissioner is satisfied that the tax default was caused wholly or partly by the intentional disregard by the taxpayer (or a person acting on behalf of the taxpayer) of a taxation law.
(3) The Chief Commissioner may determine that no penalty tax is payable in respect of a tax default if the Chief Commissioner is satisfied that:
(a) the taxpayer (or a person acting on behalf of the taxpayer) took reasonable care to comply with the taxation law, or
(b) the tax default occurred solely because of circumstances beyond the taxpayer's control (or if a person acted on behalf of the taxpayer, because of circumstances beyond either the person's or the taxpayer's control) but not amounting to financial incapacity.
The applicant submits, which the OSR accepts, that the decision of the Chief Commissioner to impose the penalties was "penal in nature": c.f. R v Adler at [10]; Philpot v Chief Commissioner of State Revenue (RD) [2008] NSWADT 176; Calcaro v Chief Commissioner of State Revenue [2004] NSWADT 158. However, the OSR submits that the appropriate characteristic in each case is that the imposition of the penalties was civil in nature and the fact that the penalties have been imposed is properly to be taken into account at the sentencing stage. The court accepts the applicant's submission that the imposition of the penalties is still relevant as the recent trend of authority is not to make a formal distinction between a civil or criminal penalty. Rather, the focus is on the purpose of the penalty, including punishment for the offending conduct and while civil penalties are protective in nature they can include elements of retribution, deterrence, reformation, mitigation, contrition and the protection of the public in determining the relevant civil penalty: see Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; 216 CLR 161 per Hayne J at [114] and [119]; Kirby J at [64] and [67]; Rich v Australian Securities and investments Commission [2004] HCA 42; 220 CLR 129 per Gleeson CJ, Gummow, Hayne and Heydon JJ at [21]-[22], [35] and [37]; McHugh J at [41], [51]-[52], and [56].
The critical issue in this matter is whether the current proceedings expose the applicant to being twice vexed for the same dishonest behaviour in the true sense of double jeopardy at the prosecution stage. If the applicant is not twice vexed it does not dispose of the applicant's contention that she is being twice punished within the meaning of the Pearce principles, or that the proceedings are otherwise an abuse of process because of oppression or the conduct of the prosecutor: c.f. R v Adler at [125] and [127] (although the Court notes that the FHOG Act does not contain an equivalent provision to s 1317 of the Corporations Act 2001 (Cth)).
The applicant submits the court should have regard to the following matters which she says would have been considerations before the Executive in assessing the punishment extracted by the s 45(2) penalties and to now be the subjected to criminal proceedings for the same amounts to an abuse of process because she is being twice vexed within the meaning of Pearce:
(a) A young woman of 21 years age subject to a lengthy investigation by the OSR. This investigation included being subjected to numerous telephone calls about her affairs, questions asked of her of a private manner.
(b) She was subject to the requirement to produce documents at the request of authorized officers on pain of punishment
(c) After a lengthy investigation, the Commissioner made a finding pursuant to s 45(2) of the FHOG Act that she had obtained her grant dishonestly.
(d) This finding is authorized by law and is in effect a declaration of dishonesty by the State against the applicant and is given statutory force and admissibility in court proceedings.
(e) It manifests itself against the appellant as she made no application to have the finding reviewed and so the finding remains unchallenged.
(f) The finding was within power and expressly permitted to be made pursuant to the extraordinary power granted to the Commissioner.
(g) The finding contains at its heart that she obtained her grant dishonestly and was not entitled to it. This is the same gravamen of the dishonesty offences preferred by the OSR.
(h) The Commissioner, having considered that dishonesty was involved imposed a penalty which was up to 60% of the value of the grant.
(i) This amount was paid by the applicant.
(j) The applicant also paid back the FHOG.
(k) The penalty was by way of a fine and not by way of a tax.
(l) The Commissioner was provided with wide discretion to impose a penalty taking into account matters that are typical to punishing offenders in NSW.
(m) The principles that the Commissioner had regard to when punishing the offender included the level of culpability, deterrence, the deliberateness of her actions, her prior character.
(n) These are all principles of punishment and considerations that are found in s 21A of the Crimes (Sentencing Procedure) Act.
(o) The characterization of the penalty as civil/fine, is a mere formality and is not determinative of the true character of the penalty imposed.
(p) The applicant has in effect being found guilty of a dishonest offence, declared dishonest and punished applying the ordinary sentencing principles that this court would be well familiar with.
(q) The process of authorized investigation through to a declaration of dishonesty has been mandated by Parliament as the way that offenders under this legislation are to be dealt with.
(r) She has been punished for the same offending behaviour that is encompassed in the CANs. [emphasis added]
(s) The breadth of the offending behaviour, described as "dishonesty obtaining the benefit" is broad enough to cover most of the CAN's that are before the Court in relation to the offences against the FHOG Act.
(t) Subject to a finding by the executive of dishonest conduct that led to the granting of a FHOG in circumstances where she was not entitled to that grant as a result of the investigation.
(u) To subject her to the further prosecution, costs, stress, harassment and vexing for the same conduct for which she has been punished, is an abuse of process and exposes her to double jeopardy." [emphasis added]
The prosecutor responds that it is entitled to frame its charges as it sees fit so long as there are elements of each charge that, while overlapping, are different in each case, and any prejudice is to be dealt with at the sentencing stage consistent with the Pearce principles. The prosecutor further submits that the applicant's reliance upon Joud is misplaced to the extent she seeks to circumvent the Pearce principles by suggesting this court should adopt a broad approach.
In Joud the accused, who had earlier been convicted of substantive terrorism offences, were then tried for conspiracy to do acts in preparation of terrorist acts. The trial judge refused an application for a permanent stay but on appeal the Victorian Court of Appeal, while not itself re-determining the stay application but remitting it back to the trial judge, held that the trial judge had erred because he gave too much weight to the proposed reduction in the evidence the Crown proposed to call at the conspiracy trial and did not adequately consider the other matters which had to be taken into account (at [143]). The Court of Appeal identified those other matters as delay, oppressive conditions of incarceration, pre-trial publicity and the effect of prosecution choices relating to the indictment, and together with the decision to separately try the accused meant that the proceedings ought to be stayed as an abuse (at [140]-[141]).
However, the Court of Appeal accepted that, standing alone, the trial judge was correct in rejecting the stay application on the basis that the appellant's were subject to double jeopardy (at [107] and [110]-[113]). The Court of Appeal, while distinguishing Pearce because in that case there was but a single trial, nevertheless accepted at [107], per Neave JA with Ashley and Weinberg JJ agreeing, that "Pearce is authority for the principle that a prosecution will not be stayed simply because an offender has been charged with more than one offence arising out of the same conduct", and the prosecutor submits that is the very case before this court. The Court of Appeal then went on to consider the issue of oppression, and the prosecutor submits that none of the other matters the Court of Appeal identified (at [134]) exist in this matter.
Determination - Grounds One, Four and Five
One difficulty with the applicant's submissions on the double jeopardy ground is that at times the distinction between double jeopardy at the prosecution stage is blurred with double jeopardy or double punishment at the sentencing stage. That is the very distinction the High Court essentially determined in Pearce at [29]-[31]. Further, the broad approach which the applicant submits should be taken in this matter is not borne out in Joud as the Court of Appeal expressly rejected such an approach where Neave JA said at [110]:
110 Unconstrained by authority, I might have held that the applicants had been subjected to double jeopardy because the Haines attempt was simply one of a number of transactions of the kind which resulted in the applicants' convictions in Benbrika 1. However, this Court is bound by the High Court decisions cited above. As in Pearce, any overlap in the offending could be dealt with at the sentencing stage if the applicants are convicted of conspiracy.
To the extent the applicant in her submissions relies upon what McHugh J said in R v Carroll [2002] HCA 55; 213 CLR 635 (at [130]-[131]) that "They do not protect the accused against prosecutorial harassment in many cases that, in substance but not in form, offend the double jeopardy principle", those words are of limited relevance to the circumstances of this case. There is no issue of controverting a prior curial acquittal or conviction or for that matter a prior curial ruling as was the case in Rogers. In Joud, the Court of Appeal similarly disposed of those decisions at [99] and at [103] respectively, and then continued at [106] to say of their application:
106 The above cases suggest that the double jeopardy principle covers much the same ground as the pleas of autrefois acquit and convict, although it may apply in circumstances such as those which arose in Carroll and Rogers, where a plea in bar is not available, but the proposed trial would controvert a jury verdict or a judge's ruling in a previous trial.
The applicant's complaint that she is now being twice punished by the criminal proceedings for the "same offending behaviour" or "for the same conduct" to use her words is not accepted within the Pearce principle of double jeopardy at the prosecution stage. While there may be significant similarities between the conduct forming the basis of the Commissioner's decision to impose the penalties because of the applicant's "dishonesty" and the offences charged, there are material differences and they are not subsumed into the Commissioner's finding: c.f. Greentree at [109]. Those differences are:
(a) Sections 45(2) and 27(2), while they are penalty provisions, are not offence provisions: R v Adler at [113]-[114];
(b) The Commissioner's decision is not a curial one imposing a civil or criminal penalty;
(c) The Commissioner's finding of "dishonesty" is not a curial one in the sense of Carroll and Rogers that it is solemn and incontrovertibly correct: Pearce per Gummow J at [53]; Joud at [88];
(d) The Court is not bound by the Commissioner's finding of "dishonesty" as the s 48(2) certificate is not relied upon by the prosecutor in proof of the offences, even if it that is the effect of s 48(2) which is doubted. The decision of the Commissioner is otherwise not binding on the Court;
(e) The Court is not bound by Commissioner's decision to impose a penalty for the stamp duty because her conduct "was caused wholly or partly by the intentional disregard" (s 27(2));
(f) While s 45(2) of the FHOG Act requires the Commissioner to be satisfied of the applicant's "dishonesty", s 178BB of the Crimes Act does not contain an element of "dishonesty": Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302 at [44] per Blanch J with Beazley and Basten JA agreeing. It follows that there can be no double jeopardy on this basis standing alone for CAN Sequences 1 and 6;
(g) While the s 192G offence requires proof the applicant acted "dishonestly" identical to s 45(2), the prosecutor must in addition prove that the dishonest statement was "false or misleading in a material particular with the intention of:...". It follows that s 192G requires proof of elements beyond a simple requirement under s 45(2) and there can be no double jeopardy on this basis standing alone for CAN Sequence 8. In any event this sequence relates to additional conduct by the applicant after the imposition of the penalties on 20 April 2010 and was not evidence before the Commissioner when he imposed the penalties: c.f. Joud at [107] see below;
(h) Section 76A(2) of the Duties Act 1997 makes it a condition that if approval for stamp duty exemption is given with a residence requirement then the applicant must notify the Commissioner within 14 days of the end of the residence period that the applicant has not complied with that requirement and pay the exempted duty. Section 76A(4) makes it an offence not to comply with that condition. Proof of s 76A(2) does not require that the applicant's conduct "was caused wholly or partly by the intentional disregard" (s 27(2)), only the failure to give notice and pay the stamp duty if certain conditions applied. It follows that there can be no double jeopardy on this basis standing alone for CAN Sequence 2;
(i) Section 20(4) of the FHOG Act makes it an offence for failing to give notice and repay the grant within 14 days after failing to comply with the residence requirement condition on the advance payment of the grant. It is in similar terms to the s 76A(2) offence but applies to the grant while the former applies to the stamp duty exemption. Again, similar to s 178BB there is no element of "dishonesty" and the offence is failing to comply with a condition and no more. It follows that there can be no double jeopardy on this basis standing alone for CAN Sequence 3;
(j) Section 55(a) of the Taxation Administration Act 1996 makes it an offence to make a statement to a tax officer knowing that it is false or misleading in a material particular. Again there is no element of "dishonesty" required as proof of an element. It follows that there can be no double jeopardy on this basis standing alone for CAN Sequences 4 and 10. Further Sequence 10 relates to additional conduct by the applicant after the imposition of the penalties on 20 April 2010 and was not evidence before the Commissioner when he imposed the penalties: c.f. Joud at [107];
(k) Section 44(1)(a) of the FHOG Act makes it an offence to make a statement to an authorised officer that it is false or misleading in a material particular. Again there is no element of "dishonesty" required as proof of an element. It follows that there can be no double jeopardy on this basis standing alone for CAN Sequences 5 and 9. Further CAN Sequence 9 relates to additional conduct by the applicant after the imposition of the penalties on 20 April 2010 and was not evidence before the Commissioner when he imposed the penalties: c.f. Joud at [107];
(l) Section 25A of the Oaths Act 1900 makes it an offence for a person to give a declaration wilfully and corruptly knowing the same to be untrue in any material particular, and who derives or attempts to derive a material benefit as a consequence of the untrue particular. Again there is no element of "dishonesty" required as proof of an element. It follows that there can be no double jeopardy on this basis standing alone for CAN Sequence 7.
On the evidence set out in the Agreed Facts the Court accepts the prosecutor's submissions as to the differences outlined in the CAN particulars referred to above and they need not be repeated. While the offences charged are overlapping (and in some cases different altogether as they relate to conduct after the imposition of the penalties) they are discrete in whole or part from the Commissioner's finding of "dishonesty" in the strict sense of double jeopardy at the prosecution stage: Pearce at [31]. The applicant's submission that the conduct in CAN Sequences 1, 3, 6 and 7 is wholly "subsumed" to use her words into the Commissioner's finding of "dishonesty" is not borne out from an analysis of the offence provisions.
The issue then is whether the criminal proceedings are otherwise oppressive. To the extent that the applicant may now be subjected to criminal sanctions and a regime of higher penalties for her conduct, does not diminish the integrity of the criminal proceedings and respect by the Court for the integrity of its own process. Rather, in the absence of serious and improper conduct or oppression by the prosecutor (and which the court could not alleviate by directions, rulings on the admissibility of evidence or matters on sentence such as extra-curial punishment) it would be a very exceptional case that a court would stay a criminal prosecution in these circumstances. Other than for the mere fact of the overlapping nature of the charges (including CAN Sequences 4 and 6 with each other) with the Commissioner's finding the applicant has not put forward evidence of oppression or improper conduct in the relevant sense: R v Adler at [115]-[118]. The decision of the prosecutor to lay the charges it has is entirely a matter for it to cover the whole of the applicant's conduct and subsequent criminality on sentence and it is not for the Court to superimpose it's own notion of fairness: Elias v R; Issa v R at [34]-[35]; R v Adler at [122].
On no account could the Commissioner be said to be independent (in the relevant sense in not having an interest in the decision) nor is the decision made in an open court with reasons given for the decision to the public: c.f. Island Maritime Limited v Filipowski at [45] per Gummow and Hayne JJ. The suggestion that the non-independent Executive decision of the Commissioner is curial in nature and binds this Court flies against the very nature of the functions, status, integrity and ultimately the authority of an independent judiciary. The Commissioner's decision is not of the nature that it is akin to "A "conviction" of an "offence" and the imposition of a "penalty" in a public court necessarily involves the opprobrium which typically attaches to the imposition by a court of a sanction for breach of a statutory provision" per Kirby J in Jack Brabham Holdings Pty Ltd v Button (1998) 94 FLR 278. Or, as McHugh, Hayne and Callinan JJ said in Pearce in a different but nevertheless apposite context in adopting the words of Sir John Barry in his lecture "The Courts and Criminal Punishments" at [39], the criminal law:
must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which the judges discharge the function of imposing punishments upon persons convicted of crime.
While the Commissioner may well have taken into account similar and relevant sentencing factors to those undertaken by a court does not convert the decision into a curial one such that the courts are bound to accept the decision as being incontrovertible so that, at least, the principle of double jeopardy applies at the prosecution stage.
That is not to say that there may not be circumstances where a permanent stay is appropriate because the conduct of the Executive is such that after having exercised its Executive powers it seeks to engage the court process for an improper purpose or, because the proceedings are otherwise oppressive. However, the circumstances of this matter do not justify such a finding let alone whether there should be a permanent stay. That there may be delay of a desultory nature but not of extraordinary length together with the inevitable prejudice because the applicant is a defendant in criminal proceedings is not sufficient: Island Maritime Limited v Filipowski at [31]-[32] Gleeson CJ, Heydon and Crennan JJ; and also in the absence bona fides at [97] Kirby J. That the applicant is now subject to more serious penalties well beyond the nature and extent of the penalties imposed by the Commissioner is a relevant circumstance going not only to the issue of double jeopardy but also as to whether there then should be a stay. In Joud the Court of Appeal said at [107]:
In my opinion, it was not an error for the judge to refuse to stay the trial as an abuse of process, arising out of double jeopardy. Pearce is authority for the principle that a prosecution will not be stayed simply because an offender has been charged with more than one offence arising out of the same conduct. In that case, the High Court held that there was no abuse of process, even though a core element in each offence was the infliction of the same injury on the same victim and the maximum term of imprisonment for both offences was the same. The argument for the application of double jeopardy is weaker in this case because the Haines evidence was not relied upon in Benbrika 1 and the maximum term of imprisonment for conspiracy is greater than the maximum penalty for the offences of which the applicants have already been convicted. The higher maximum penalty supports the view that the conspiracy involves more serious criminal conduct than the other offences." [emphasis added]
The words emphasised above by the court are apposite in this matter, particularly as the conduct charged is broader than the single issue of "dishonesty" and the potential penalties far greater. To the extent that many of the offences of which the applicant now stands charged relate to conduct which is not the same and/or is conduct after the imposition of the penalties on 20 April 2010, the applicant's submission founded on double jeopardy alone must fail. To the extent that some of the conduct for which the applicant has already been penalised is similar to the conduct encapsulated in some of the charges the court can and should deal with that circumstance only when that conduct has been determined should the offences be proven and at the sentencing stage: Hagipantelis at [48]; Greentree at [109]; Joud at [110]. Many of the factors, which the applicant has identified above, are matters to be properly taken into account as mitigating factors on sentence if that occasion were to arise.
The Court accepts the prosecutor's submission that until there has been a determination of the offences by way of a hearing or pleas of guilty the Court is not in a position to determine the double punishment issue. The prosecutor in its submissions recognises that the applicant ought not to be punished twice for the same conduct and that on sentence the payment of the penalties imposed by the Commissioner will be relevant. In that context the courts have shown that any issue of double punishment (without there being any issue of improper conduct or oppression) can be dealt with in a principled but pragmatic way, comfortably with the purposes of criminal punishment and the Courts' integrity without bringing the administration of criminal justice into disrepute: Pearce at [49]; R v Connell [2013] NSWCCA 155 at [36]-[40]; Redfern v R [2012] NSWCCA 178 at [17]. However, there may be occasions where a stay is appropriate given the observations made by the New South Wales Court of Criminal Appeal in R v Nahlous. The court need not determine that issue for the present, for it could only arise at the sentencing stage, as it is not satisfied there is double jeopardy at the prosecution stage.
Further, the court will need to take into account the issue of any extra-curial punishment. A court may, and should consider when imposing a sentence, that an offender has already suffered or may suffer some serious loss or detriment as a result of having committed the offence, quite apart from any punishment imposed by the court: R v Einfeld [2009] NSWSC 119 at [154-162] (public humiliation and vilification); R v Allpass (1993) 72 A Crim R 561 (campaign of abuse, harassment and serious threats to person and property); R v Daetz (2003) 139 A Crim R 398 (private persons extracting retribution or revenge); Christodoulou v R [2008] NSWCCA 102 (self-injection of acid bound up with the offence); Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act (Guideline Judgment on High Range Prescribed Concentration of Alcohol Offences) [2004] NSWCCA 303 (effect of licence disqualification). There are other instances of courts taking into account extra-curial punishment. What weight is to be given to any extra-curial punishment is a factor for the Court to consider on the particular facts and circumstances of a matter before it.
The court is not satisfied the applicant has made out these grounds as justifying a permanent stay.
Ground Two: the FHOG Act does not contemplate that proceedings for contraventions against the Act will be brought under the Crimes Act
The applicant's submission is that by necessary implication the FHOG Act is a self contained Act that provides for offences against the Act to be exclusively dealt with under the offence provisions in the Act. The applicant argues that the fact the Act provides a means of reviewing a finding of dishonesty when made, is suggestive of a mechanism whereby the Administrative Review Tribunal can review a finding of dishonesty. This tends to suggest that the Act in a self-contained manner circumscribes the means by which a finding of dishonesty can be made and the penalty imposed and reviewed. Consequently, it is indicative of a self-contained code. The immediate response to that submission is that the FHOG Act also provides for offences against the Act are to be dealt with summarily before either the Local Court or before the Supreme Court in its summary jurisdiction: s 49. The decision to prosecute is not one that can be reviewed under s 25 of the FHOG Act.
The applicant then submits that because the FHOG Act circumscribes the types of investigations and powers that an authorised officer can carry out under ss 35 and 36 of the Act, then it must follow that any offence resulting from those investigations can only be dealt with under the FHOG Act to the exclusion of the Crimes Act 1900. The applicant submits that to the extent the FHOG Act provides for summary offences only, it evinces an intention that all offences against the Act must be dealt with summarily. The consequence is that the FHOG Act contemplates that the Crimes Act 1990 charges cannot be laid. As the proceedings have not been brought under the FHOG Act they are an abuse of process.
Determination
The court does not accept that the FHOG Act is in effect a code and excludes the operation of the Crimes Act 1900 or the Oaths Act 1900 for the following reasons:
(a) There are no express words excluding the operation of the Crimes Act 1900 or the Oaths Act 1900;
(b) That the Parliament has subsequently created a particular offence does not impliedly repeal a more general offence in an earlier Act relating to the same conduct: Goodwin v Phillips (1908) 7 CLR 1 per Griffith CJ at 7; Saraswati v R (1999) 172 CLR 1 per Gaudron J at [17].
(c) There is no inconsistency or repugnancy to the extent that the FHOG Act cannot stand with either the Crimes Act 1900 or the Oaths Act 1900. As Gummow and Hayne JJ said in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) HCA 50 at [48]:
The doctrine requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands.
(d) In R v Chalak [1983] NSWLR 282 the Court of Criminal Appeal held that a power to deal with an offence summarily did not displace a provision providing for an indictable offence for the same conduct. The issue was whether ss 138 and 139 of the Social Security Act 1947 (Cth) impliedly repealed s 298 of the Crimes Act 1914 (Cth). Section 298 of the Crimes Act 1914 dealt with indictable offences and provided for a maximum penalty of two years. There was no time limit within which prosecutions might be instituted and there was no requirement for ministerial consent under s 298. The Unemployment and Sickness Benefits Act 1944 (Cth) provided only for summary proceedings. The penalties were limited to a maximum of a $50 fine or three months imprisonment, ministerial consent was required, and the proceedings were required to be brought within three years. There was also some modification in detail in the Social Services Act 1947 (Cth). Street CJ with Moffit P and Yeldham J agreeing said at 285 that enacting the statutory offences in the later Acts "the legislature intended to create a parallel system of summary justice to be invoked in circumstances not justifying the more solemn procedure of trial on indictment. The summary nature of the penal scheme enshrined within ss. 49 and 50, and in ss. 738 and 139 of the current statute, in my view, can readily stand together with the general indictable offence constituted under s. 298." Similarly, in Davis v Taylor (1996) 148 ALR 245, it was held that the enactment of civil penalties did not displace existing criminal offences for the same conduct; see also Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 per Hunt, Finlay and Allen JJ.
(e) Similar observations may be made about the legislative provisions in this matter that they can stand side by side as alternative ways of prosecuting;
(f) Section 178BB was repealed in 2009 and replaced by s 192G which is after the commencement of the FHOG Act, but the Parliament did not exempt from the application of s 192G the FHOG Act. As the Parliament is taken to be aware of the FHOG Act it must follow that s 192G was meant to operate side by side with the FHOG Act;
(g) The prosecutor in his capacity as an officer of the OSR has the right along with that of any other person to bring a prosecution under the Crimes Act 1900 (save for limited exemptions not presently relevant) or the Oaths Act 1900: s 14 Criminal Procedure Act 1986;
(h) That s 45(2) (and s 27(2) of the Taxation Administration Act 1996) provide for monetary penalties only speaks against the FHOG Act being a code in circumstances where gross fraud may involve large sums of public money which the community would expect to be prosecuted on indictment with the appropriate penalties under the Crimes Act 1900 or Oaths Act 1900.That there is no provision in the FHOG Act for indictable offences informs against it being a code;
(i) The applicant's submission that the investigative powers are limited to taxation offences says nothing about the decision of the prosecutor (or for that matter say a police officer) to lay those charges that it thinks are most appropriate.
The court is not satisfied the applicant has made this ground out as justifying a permanent stay.
Ground Three: prosecutorial abuse at the investigation phase of the proceedings is such that the Court would stay the proceedings
The applicant submits that these proceedings involve the use of evidence obtained by the use of investigative powers under the FHOG Act, Taxation Administration Act 1996 and the Duties Act 1997, which are clearly not intended for prosecutions under the Crimes Act 1900. The evidence that has been obtained has been in the main, beyond the express powers of the legislative provisions, which circumscribe the correct use of that power. This has demonstrated an unfairness and pre-prosecutorial abuse of powers to bring the proceedings before the court, particularly the use of the evidence improperly or unlawfully obtained from the applicant in the compulsory interview under s 72(1)(b) of the Taxation Administration Act 1996, which she submits is not admissible in the Oaths Act 1900, Crimes Act 1900 and FHOG Act as they were not for the purpose of a taxation law under s 71 of the Taxation Administration Act 1996. Further, if that evidence is inadmissible then those offences are doomed to fail and the court has the power to stay the proceedings for those offences as an abuse of process: c.f. Rogers.
The prosecutor responds that the investigators have legitimately investigated the Taxation Administration Act 1996 and FHOG Act offences, and there is no evidence to the contrary. In the absence of evidence that the laying of the Crimes Act charges had been used in an improper way, for example to circumvent time limits, there is no basis for a permanent stay: see for example Saraswati. The subsequent decision by the prosecutor to lay charges under the Crimes Act after the investigation was a matter entirely for the prosecutor and is not a basis upon which the court could find an abuse of process at the investigation stage. The OSR officers had the power to carry out the investigations and issue the notices for interview, information or documents at that time and the applicant does not assert that the investigator's powers were not properly founded in the Taxation Administration Act 1996, Duties Act 1997 or the FHOG Act (in respect of all three Acts charges have been also laid). The prosecutor further submits that there is no suggestion (much less evidence) put forward by the applicant that the investigation was carried out solely for the purpose of gathering further evidence to commence a prosecution under the Crimes Act 1900, Oaths Act 1900 or for that matter the charges under the Duties Act 1997, FHOG Act and the Taxation Administration Act 1996. Finally, the prosecutor submits that whether evidence is ultimately ruled inadmissible is not a matter relevant to this ground.
Determination
The court notes that even if there is evidence that has been unlawfully or improperly obtained by the prosecutor that generally does not justify a permanent stay. The following observations in Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68 at [35]- [37] are apposite although there the context was whether there had been a miscarriage of justice:
35 In addition, there are cases involving improper or unlawful conduct by the authorities investigating crime. However, misconduct of this kind is usually dealt with by excluding evidence, such as an induced confession, the proceeds of an unlawful search, or the product of entrapment. These examples resonate in the present case. First, inducing a confession by threats or trickery does not directly render the subsequent trial unfair. Secondly, in rejecting a defence of entrapment, in Ridgeway v The Queen [1995] HCA 66; 184 CLR 19, Mason CJ, Deane and Dawson JJ noted that even a direction or order of a superior officer in the government would not provide a defence to a criminal charge: at 29-30, referring to A v Hayden [No 2] [1984] HCA 67; 156 CLR 532. However, their Honours referred to the discretionary power to exclude unlawfully obtained evidence at 31-32:
"More importantly, the considerations of 'high public policy' which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime."
36 As explained by Barwick CJ in The Queen v Ireland [1970] HCA 21; 126 CLR 321 at 334-335, "the discretion to exclude evidence on public policy grounds extended to evidence obtained by 'unfair' as well as 'unlawful' conduct on the part of law enforcement officers: Ridgeway at 36".
37There remained an issue in Ridgeway as to whether the proceedings should have been permanently stayed. The majority held that they should, not on the basis of an abuse of process, but because, without the evidence of possession of heroin, procured by law enforcement officers, the prosecution was doomed to fail. With respect to the question of abuse, both Brennan J (at 46) and Toohey J (at 61) referred to what they had said on that topic in Jago. Both they and Gaudron J (who considered the proceedings to be an abuse) and McHugh J (who would have countenanced a stay in circumstances where the prosecution would tend to bring the administration of justice into disrepute - at 92) accepted that a stay would be appropriate at least where proceedings were commenced for an improper purpose or were not capable of being the subject of a fair trial: at 46 (Brennan J) and 61 (Toohey J).
Similarily, in R v Seller; R v McCarthy the accused were granted a permanent stay by the trial judge because the Australian Crime Commission had disseminated transcripts to the (Cth) DPP of compulsory examinations before they were charged. On appeal the Court of Criminal Appeal held that the trial judge was in error, primarily because the trial judge had not considered whether any prejudice had in fact occurred. That there may have been a contravention of s 25A(9) of the Australian Crime Commission Act 2002 does not automatically justify a stay. Bathurst CJ with McClellan CJ at CL and Rothman J agreeing said at [110]:
As I have stated, the fact that dissemination took place in contravention of a direction or in circumstances where a direction should have been given, does not automatically entitle the accused to a stay. The principles on which a permanent stay is granted are set out in the judgment of McClellan CJ at CL in CB supra and it is unnecessary to repeat them. I would merely add what was said by Mason CJ in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 30, where the Chief Justice indicated his agreement with Richardson J in Moevao v Department of Labour (1980) 1 NZLR 464 at 482 that the justification for a stay is to prevent the court process being employed in a manner inconsistent with the recognised purpose of the administration of criminal justice and so constituting an abuse of process. Further, a stay will only be granted in an extreme case and the fundamental defect which warrants a stay must be such that there is nothing a trial judge can do to relieve against its unfair consequences: The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605.
In the absence of evidence that the investigation was carried out solely for the purpose of gathering further evidence to commence a prosecution under the Crimes Act 1900, Oaths Act 1900 or for that matter the charges under the Duties Act 1997, FHOG Act and the Taxation Administration Act 1996 the applicant has not made out a basis for a stay. Any breach of the investigative powers and the nature of that breach would need to be identified in evidence so the court could then determine its admissibility, including the exercise of any discretion.
The court is not satisfied the applicant has made this ground out as justifying a permanent stay.
Magistrate Favretto
Downing Centre Local Court
12 August 2013
* The original form of judgment has been revised for the purposes of publication.
Decision last updated: 17 January 2014
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