R v Dalton - [2011] SASCFC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DALTON
[2011] SASCFC 125
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Stanley)
2 November 2011
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Appeal by Director of Public Prosecutions against the order of a Judge of the District Court granting a permanent stay of an Information – where the defendant had made a claim for compensation for injury sustained at work as an employee of a government Department – the Department rejected the claim, inter alia, on the basis of the results of a Departmental investigation that the defendant had misappropriated Department funds – the defendant filed a notice of dispute and the dispute went before a Deputy President of the Workers Compensation Tribunal for judicial determination – the Deputy President determined that the defendant had made out a prima facie case for compensation – the Department contended that the disability was wholly or predominantly attributable to misappropriation of money amounting to “serious and wilful misconduct” for the purposes of the Workers Rehabilitation and Compensation Act 1986 (SA) – where Deputy President determined that the Department’s case for misappropriation of money had not been made out – in 2010 the defendant was charged with 184 counts of falsification of accounts – where the District Court Judge granted a stay, as to allow the criminal proceedings to proceed would risk the scandal of conflicting decisions; that is, between the decision of the Deputy President and that arising from the criminal proceedings – whether the Judge in error in ordering a stay of the criminal proceedings.
Discussion regarding the principle of incontrovertibility.
Held: extension of time in which to appeal, granted – appeal allowed – the Judge conflated the role of the Director of Public Prosecutions and that of the Department – different parties were involved – there has been no exposure to risk of punishment on two occasions for the same act or acts – a Judicial determination by the Workers Compensation Tribunal and a jury verdict in criminal proceedings do not fall within the category of conflicting records as to the rights, entitlements and liabilities between the same legal entities on the same issue determined by the exercise of judicial power – the essential question to be answered in what amounts to serious and wilful misconduct is not the same as that to be answered in what amounts to falsification of accounts – there is a strong public interest in the criminal trial proceeding – order staying the Information set aside and direction that matter proceed to trial.
Criminal Law Consolidation Act 1935 (SA) s 178 and s 275; Workers Rehabilitation and Compensation Act 1986 (SA) s 30A, s 30B and s 90; Director of Public Prosecutions Act 1991 (SA) s 6, s 7(1)(a) and s 9; Crown Proceedings Act 1992 (SA) s 5; Public Sector Act 2009 (SA) s 28, s 31 and s 33, referred to.
Dalton v The State of South Australia (2010) 106 SASR 279; Dalton v The State of South Australia (No 3) (2010) 107 SASR 435; Dalton v The State of South Australia (Department for Families and Communities) [2007] SAWCT 58; House v The King (1936) 55 CLR 499; R v Carroll (2002) 213 CLR 635; Rona v District Court of South Australia (1995) 63 SASR 223; Jago v The District Court of New South Wales (1989) 168 CLR 23; Attorney-General for New South Wales v Watson (1987) 20 Leg Rep SL 1; R v Glennon (1992) 173 CLR 592; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; Goldsmith v Sperrings Ltd [1977] 1 WLR 478; R v Littler (2001) 120 A Crim R 512; Rogers v The Queen (1994) 181 CLR 251; Batistatos v Road Traffic Authority (NSW) (2006) 226 CLR 256; Barton v The Queen (1980) 147 CLR 75; R v McGee and McGee (2008) 102 SASR 318; Question of Law Reserved (No 3 of 1995) (1996) 66 SASR 450; Blair v Curran (1939) 62 CLR 464; R v Storey (1978) 140 CLR 364; R v Wilkes (1948) 77 CLR 511; Brewer v Brewer (1953) 88 CLR 1; Thoday v Thoday [1964] P 181; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Director of Public Prosecutions v Humphrys [1977] AC 1; R v Davis [1982] 1 NZLR 584; Connelly v Director of Public Prosecutions [1964] 1 AC 1254; Island Maritime Ltd v Filipowski (2006) 226 CLR 328; R v Gilham (2007) 73 NSWLR 308; TransAdelaide v Evans (2005) 98 SASR 394; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Roberts v Western Australia (2005) 152 A Crim R 346; Zollo v National Australia Bank Ltd [2009] SASC 38; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Adler v Director of Public Prosecutions (Cth) (2004) 149 A Crim R 378, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"principle of incontrovertibility"

R v DALTON
[2011] SASCFC 125
Court of Criminal Appeal: Gray, Sulan and Stanley JJ
GRAY J:

This is an appeal by the Director of Public Prosecutions against the order of a Judge of the District Court granting a permanent stay of an Information.
Introduction
On 21 January 2010, Anne Elizabeth Dalton, the defendant and respondent, was charged with 184 counts of falsification of accounts, contrary to section 178 of the Criminal Law Consolidation Act 1935 (SA). On 18 February 2010, Ms Dalton applied for a permanent stay of the Information.
On 15 April 2011, the District Court Judge ordered a permanent stay on the basis that the alleged fraud repeated in the commission of each count had already been determined in proceedings in the Workers Compensation Tribunal. The Judge considered the stay was justified as:
… to allow the criminal proceedings to proceed would risk the scandal of conflicting decisions. The example give (sic) by [counsel for Ms Dalton] is telling. It could lead to a finding of criminal guilt of fraud in these transactions, yet she would still be entitled to weekly payments in gaol because of a necessary judicial determination that there was no fraud in those very same transactions.
It is necessary to set out the background to the workers compensation proceedings and their intersection with the criminal charges. It is an analysis of these circumstances that enable the issues on the appeal to be discussed, understood and resolved.
Extension of Time
The Director sought an extension of time of about four weeks in which to appeal. Ms Dalton opposed the application. The Court granted an extension at the time of the hearing and indicated that reasons would be provided later.
Counsel for Ms Dalton could not identify any real prejudice that would flow from an extension of time. The application was opposed on the ground that no satisfactory explanation had been provided for the delay and that in the circumstances the Court should refuse an extension. The matter, as discussed below, has a long history. Counsel was correct to accept that no prejudice would be suffered by his client if the application was granted. An affidavit filed by a solicitor within the Office of the Director of Public Prosecutions provided an explanation. The reason for the delay was one of oversight. The affidavit explained the oversight. Following the District Court judgment, the Director sought advice from senior counsel. It transpired that counsel had a conflict and because of work pressure, the matter was not referred immediately to other counsel. Once the solicitor became aware of the delay, the matter was referred to the Solicitor-General for opinion, and immediately following his advice, appeal papers were lodged and an extension of time sought. The appeal raises important matters for consideration, including matters of public interest. In the view of the Court, given the explanation and the importance of the matter, an extension of time was granted.
Background
The history of the workers compensation proceedings was set out in the reasons of Duggan J in Dalton v The State of South Australia,[1] by the Chief Justice in Dalton v The State of South Australia (No 3)[2] and also by the District Court Judge in the proceedings below. That history may be summarised as follows.
[1] Dalton v The State of South Australia (2010) 106 SASR 279, [2]-[15].
[2] Dalton v The State of South Australia (No 3) (2010) 107 SASR 435, [5]-[25].
On 30 September 2003, Ms Dalton made a claim for compensation asserting that in the course of her employment in a government department she sustained psychological injury.
In March 2005, an officer of the Department of Families and Communities determined the claim and rejected it. The grounds for that determination included the results of a departmental investigation in April 2003 into the misappropriation by Ms Dalton, while the manager of the Modbury District Office of Family and Youth Services, of funds of the Department relating to domestic violence financial assistance payments authorised by her. Further, it was said that Ms Dalton had, on 23 May 2003, resigned from her employment with the Department and that an internal audit had determined that $1.3 million of Department funds were unaccounted, spanning a period dating back to 1994.
The letter of determination advised that the Department had reported Ms Dalton to the Police. The letter of determination further provided:
Therefore the conclusions drawn from these facts are:
You have suffered a disability consisting of an illness or disorder of the mind;
Employment with the department was not a substantial cause of the disability;
The disability arose wholly or predominantly from reasonable administrative action taken in a reasonable manner by the department in connection with your employment;
The disability is wholly or predominantly attributable to serious and wilful misconduct on your part;
Your disability is not compensable under the Workers Rehabilitation and Compensation Act, 1986;
Even if your disability is compensable, by your conduct or by your resignation you have breached the obligation of mutuality and you are not entitled to any weekly payments of compensation.
Ms Dalton filed a notice of dispute pursuant to section 90 of the Workers Rehabilitation and Compensation Act 1986 (SA), asserting:
The worker does not believe that the employer has acted in a reasonable manner or with reasonable action.
There is no proof of any serious and wilful misconduct.
The worker’s disability is as a direct result of her employment and false allegations.
The dispute went before a Deputy President of the Tribunal for judicial determination. Ms Dalton alleged that she suffered psychological injury, which was not disputed. This injury was described as severe depression which made Ms Dalton unfit for work – the cause of which she claimed was overwork and stress attributable to her employment. The following findings by the Deputy President provide further background:[3]
I have already accepted the opinion of Dr Van den Bos that, for at least two years prior to September 2003, the applicant was suffering from a single, ongoing, developing condition of severe depression, the aetiology of which involved multiple factors, significant amongst which were cumulative stressors arising from her work environment. These included, for example, long hours consistently worked by her, the problems associated with staff members, the difficulties associated with the Aboriginal Family Services Program, the stress arising from the [PH] saga, and the impact of the aggressive/threatening conduct of clients, all as earlier discussed in these reasons.
I have also accepted the doctor’s view that the severity of the applicant’s symptoms fluctuated over time.
However, as he pointed out, the depression had become quite intense by late 2002 and resulted in substantial dysfunction in relation to the applicant’s work activities, constituting a significant level of disability and incapacity, notwithstanding the applicant’s actual attendance at work.
I have additionally accepted the doctor’s opinion that the applicant’s symptoms were further exacerbated by the service on her, on 9 May 2003, of a notice of intention to suspend and the associated stated suspicion that she had been guilty of fraudulent misappropriation of funds.
I have accepted his opinion that, from a point immediately after her suspension, the intensity of the applicant’s depressive symptoms was such that she became totally and permanently incapacitated for work. It will be recalled that he actually issued a certificate of total incapacity from 13 May 2003.
I have also accepted his view that, whilst the ultimate disability and resultant incapacity of the applicant was the consequence of a complex of stressors, some of them being non work-related, those arising from the work environment at all times remained major contributing factors.
[3] Dalton v The State of South Australia [2007] SAWCT 58, [689]-[694].
The Department claimed that Ms Dalton had an entrenched gambling habit, an addiction, and that over a period beginning in 1994 she misappropriated about $1.3 million from the Department. The Department asserted that the disability was attributable to the service on Ms Dalton on or about 9 May 2003 of a notice that she was suspected of having misappropriated money. The notice advised of the Department’s intention to suspend Ms Dalton.
On 12 May 2003, Ms Dalton appealed against her suspension. On the same day she sent a letter of resignation. On 20 May 2003, her resignation was accepted with effect from 16 May 2003.
At the hearing before the Deputy President, Ms Dalton and the State of South Australia were parties. The State presented a body of circumstantial evidence to support its claim that Ms Dalton had misappropriated Department funds.
The Deputy President determined that Ms Dalton had made out a prima facie case for compensability under section 30A of the Workers Rehabilitation and Compensation Act. That section provides:
A disability consisting of an illness or disorder of the mind is compensable if and only if—
(a)     the employment was a substantial cause of the disability; and
(b)     the disability did not arise wholly or predominantly from—
(i)reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker; or
…
The Deputy President concluded that section 30A did not disentitle Ms Dalton to compensation for her disability. He then turned to section 30B. That section provides:
(1)     A worker who is acting in connection with, and for the purposes of, the employer's trade or business is presumed to be acting in the course of employment despite the fact that—
(a)the worker is acting in contravention of a statutory or other regulation applicable to the employment; or
(b)the worker is acting without, or in contravention of, instructions from the employer.
(2)     However—
(a)a worker will not be presumed to be acting in the course of employment if the worker is guilty of misconduct or acts in contravention of instructions from the employer during the course of an attendance under section 30(3); and
(b)a disability is not compensable if it is established on the balance of probabilities that the disability is wholly or predominantly attributable to—
(i)serious and wilful misconduct on the part of the worker; or
(ii)the influence of alcohol or a drug voluntarily consumed by the worker (other than a drug lawfully obtained and consumed in a reasonable quantity by the worker).
(3)Subsection (2)(a) does not apply in a case of death or permanent total incapacity for work and subsection (2)(b) does not apply in a case of death or serious and permanent disability.
It is convenient to set out the observations of Doyle CJ in Dalton (No 3) with respect to the conclusion of the Deputy President:[4]
It is evident on its face that s 30B could not assist the respondent. Mrs Dalton had suffered “serious and permanent disability”. Accordingly, it was no answer to her claim that the disability might be “wholly or predominantly attributable to” misappropriation of money amounting to “serious and wilful misconduct”. The Deputy President made the point that s 30B(2)(b)(i) could not assist the respondent: at [697]. However, the Deputy President went on to consider the circumstantial case put by the respondent, in support of its claim that Mrs Dalton had misappropriated money. The Deputy President found that that case was not made out.
[4] Dalton v The State of South Australia (No 3) (2010) 107 SASR 435, [16].
The following observations of the Deputy President are also pertinent to a consideration of the issues arising in the present appeal:[5]
As to [Ms Dalton’s] relevant conduct, I have already held that it did not constitute serious and wilful misconduct, much less gross misconduct. Nor do I consider that my findings can possibly warrant a conclusion that any deliberate conduct of the applicant was such that the employer was entitled to conclude that it was incompatible with a continuing relationship of employer and employee. It was explicable by reference to the mental health state of [Ms Dalton] and her consequential inability to cope with her work tasks.
[5] Dalton v The State of South Australia [2007] SAWCT 58, [739].
The Deputy President determined that Ms Dalton was entitled to compensation. The State appealed to the Full Bench of the Workers Compensation Tribunal. The complaint of the State was that the Deputy President failed properly to assess the circumstantial evidence in that he assessed each item, or most items, separately, rather than in combination. The Full Bench determined that the Deputy President had erred in his assessment of the circumstantial evidence and that this was an error of law. The appeal was allowed, orders for payment of compensation were set aside and the matter remitted for rehearing before another Deputy President.
Ms Dalton appealed to the Supreme Court. The Full Court dismissed the appeal as incompetent. The Court concluded that there was no right of appeal.[6] The Court held, should it be necessary, that it considered the appeal did not raise a question of law. However, the Court expressed the view that the Deputy President had not erred in the manner in which he assessed the circumstantial evidence.
[6] Due to the fact that there had been a relevant change in the legislation which, it was determined by the Full Court, did not apply to the proceedings before it.
Following this ruling, Ms Dalton issued proceedings for judicial review, arguing that the appeal from the Deputy President to the Full Bench of the Tribunal was incompetent as it did not raise a question of law. In Dalton (No 3), Ms Dalton was successful in this contention; that is, that the Full Bench of the Tribunal had acted beyond power in allowing an appeal against the decision of the Deputy President. Consequently the decision of the Full Bench was quashed, leaving the decision of the Deputy President to stand.
It is convenient now to return to the proceedings in the Tribunal over which the Deputy President presided. At all times the parties to the workers compensation proceedings were the State of South Australia in right of the Department of Families and Communities, and Ms Dalton. The matter proceeded to judicial determination. The following were identified as the issues to be determined:[7]
•Whether the worker has suffered a disability pursuant to section 30A of the Workers Rehabilitation and Compensation Act 1986 (“the Act”).
•If so, was the worker’s employment a substantial cause of the disability?
•If so, did such disability arise wholly or predominantly as a result of reasonable action taken in a reasonable manner by the employer within the terms of section 30A of the Act?
•Did such disability arise wholly or predominantly as a result of serious and wilful misconduct on the part of the worker within the terms of section 30B of the Act?
•Whether the worker’s disability is compensable under the Act.
•Has the worker breached her obligation of mutuality by resigning her employment on 23 May 2003?
•If the worker has breached her obligation of mutuality, whether that breach operates to disentitle the worker from receiving weekly payments pursuant to the Act.
[7] Dalton v The State of South Australia [2007] SAWCT 58, [9].

A disability is relevantly compensable if the worker’s employment was a substantial cause of the disability and the disability did not arise wholly or predominantly from reasonable administrative action taken in a reasonable manner by the employer.[8] As mentioned, the Deputy President found that Ms Dalton had sustained a compensable disability. That disability was the product of multiple factors and was exacerbated by the action taken by the Department in 2003; that is, an indication that an investigation into allegations of the misappropriation of funds would be undertaken and the issuing of Ms Dalton with a notice to suspend. The Deputy President, upon making this finding, was required to consider section 30B of the Workers Rehabilitation and Compensation Act. As earlier set out, that section provides that a disability is not compensable if it is established on the balance of probabilities that the disability is wholly or predominantly attributable to serious and wilful misconduct on the part of the worker. In the Tribunal, the State’s case was, in part, that in misappropriating funds Ms Dalton had engaged in serious and wilful misconduct and that her disability was wholly or predominantly attributable to that misconduct. The Deputy President held that Ms Dalton’s disability was total and permanent. Consequently, section 30B did not apply.
[8] Workers Rehabilitation and Compensation Act 1986 (SA) section 30, 30A.
The Deputy President nevertheless made comment on the issues raised in the Department’s defence in the event that his conclusion as to the nature of the disability were to be found erroneous. The Deputy President concluded that the matters relied upon by the Department could not “rise above the level of some degree of suspicion.” The matters relied upon included only 152 of the 184 allegations comprising the counts the subject of the information.[9]
The Appeal
[9] Dalton v The State of South Australia [2007] SAWCT 58, [115]-[119], [708]-[715], [717]-[724].
Power to Grant A Stay
The grant of a stay is a discretionary order. In the present proceeding, it was submitted by the Director that in the exercise of that discretion, the District Court Judge failed to have regard to material matters and had regard to irrelevant matters.
The task of the Court when entertaining an appeal against a discretionary decision was expressed by Dixon, Evatt and McTiernan JJ in House as follows:[10]
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
[10] House v The King (1936) 55 CLR 499.
While the power to grant a stay is not truly discretionary, it has been accepted that the approach to an appeal against a stay is in accordance with the above observations. This acceptance can be found in the observations of Gaudron and Gummow JJ in Carroll:[11]
The power to stay is said to be discretionary. In this context, the word "discretionary" indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing.
[Footnote omitted. Emphasis added.]
[11] R v Carroll (2002) 213 CLR 635, [73].
Before coming to discuss the principles of incontrovertibility and the approach of the Judge in the present proceeding, it is convenient to address the power to grant a stay of proceedings and the principles relevant to its exercise.
The District Court of South Australia is vested with an implied power to stay proceedings in the exercise of its discretion so as to ensure that its processes are not abused.[12] As the power to stay a matter amounts to a refusal to exercise jurisdiction, it is an extreme step and accordingly, one only justified in exceptional circumstances.[13] The onus of satisfying a court that there is an abuse of process lies upon the party alleging it. This onus is a heavy one.[14] While the categories of case giving rise to an abuse of process are not closed, cases generally fall into one of three broad categories: where the court’s procedures are invoked for an illegitimate purpose; where the use of the court’s procedures is unjustifiably oppressive to one of the parties; and, where the use of the court’s procedures would bring the administration of justice into disrepute.[15]
[12] Rona v District Court of South Australia (1995) 63 SASR 223, 226 (King CJ).
[13] Jago v The District Court of New South Wales (1989) 168 CLR 23, 31 (Mason CJ), 60 (Deane J), 76 (Gaudron J); Attorney-General for New South Wales v Watson (1987) 20 Leg Rep SL 1, 1 (Mason CJ, Wilson and Dawson JJ); R v Glennon (1992) 173 CLR 592, 605 (Mason CJ and Toohey J), 615-6 (Brennan J); Williams v Spautz (1992) 174 CLR 509, 529 (Mason CJ, Dawson, Toohey and McHugh JJ); Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ).
[14] Williams v Spautz (1992) 174 CLR 509, 529 (Mason CJ, Dawson, Toohey and McHugh JJ); Goldsmith v Sperrings Ltd [1977] 1 WLR 478, 498; R v Littler (2001) 120 A Crim R 512, 513.
[15] Rogers v The Queen (1994) 181 CLR 251, 286 (McHugh J); Batistatos v Road Traffic Authority (NSW) (2006) 226 CLR 256, 267; see also Rona v The District Court of South Australia (1995) 63 SASR 223, 226 (King CJ), 230-1 (Olsson J); Barton v The Queen (1980) 147 CLR 75, 95-96; Jago v The District Court of New South Wales (1989) 168 CLR 23, 46-47 (Brennan J); Walton v Gardiner (1993) 177 CLR 378, 392-4 (Mason CJ, Deane and Dawson JJ), 411 (Brennan J).
In the within proceeding, the principle of incontrovertibility was relied on by the District Court Judge. In Walton v Gardiner, Mason CJ, Deane and Dawson JJ noted:[16]
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
[Emphasis added].
[16] Walton v Gardiner (1993) 177 CLR 378, 392-3. See also, R v McGee and McGee (2008) 102 SASR 318, [56]-[61] (Doyle CJ).
Mason CJ, Deane and Dawson JJ in Walton v Gardiner drew on Jago v The District Court of New South Wales,[17] and observed:[18]
…the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. …
In Williams v Spautz, Mason CJ, Dawson, Toohey and McHugh JJ, observed:[19]
…there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J. referred to them in Moevao v. Department of Labour in a passage which Mason C.J. quoted in Jago. The first is that 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 and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice….
[Footnotes omitted.]
[17] Jago v The District Court of New South Wales (1989) 168 CLR 23.
[18] Walton v Gardiner (1993) 177 CLR 378, 395-396.
[19] Williams v Spautz (1992) 174 CLR 509, 520 (Mason CJ, Dawson, Toohey and McHugh JJ). See also Rona v District Court of South Australia (1995) 63 SASR 223, 231 (Olsson J); Question of Law Reserved (No 3 of 1995) (1996) 66 SASR 450, 460-1 (Debelle J with whom Mullighan and Nyland JJ agreed).
As with any application for a stay, ultimately a weighing exercise is to be undertaken.
Incontrovertibility
The application of the principle of incontrovertibility is assisted by an understanding of what have been termed the rules of preclusion and the principles and values that underpin those rules. The rules of preclusion comprise: res judicata, issue estoppel and abuse of process, together with their extended applications.
Two policy reasons are commonly invoked in justification of the doctrine of res judicata: the public interest in the finality and conclusiveness of judicial decisions;[20] and, the right of an individual to be protected from a multiplicity of suits.[21]
[20] The maxim interest reipublicae ut sit finis litium.
[21] The maxim nemo debit vexari pro uno et eadem delicto. See further Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996) [9-10]; See also K.R.Handley, ‘Res Judicata: General Principles and Recent Developments’ (1999) 18 Australian Bar Review 214.
The doctrine of res judicata was explained by Dixon J in Blair v Curran.[22] The doctrine precludes re-litigation of causes of action already judicially determined between the parties.
[22] Blair v Curran (1939) 62 CLR 464, 531-3.
It has been determined that issue estoppel has no place in the Australian criminal law.[23] The doctrine precludes the re-litigation of issues of fact or law that have already been determined between the parties.[24] However, the principles of issue estoppel as utilised in civil proceedings are considered inappropriate to criminal proceedings. The application of the doctrine has been considered likely to complicate criminal trials.[25]
[23] R v Storey (1978) 140 CLR 364, 372, 388, 400-401; Rogers v The Queen (1994) 181 CLR 251, 254-5, 278.
[24] R v Wilkes (1948) 77 CLR 511, 518-9; Brewer v Brewer (1953) 88 CLR 1, 14-15; Thoday v Thoday [1964] P 181, 197-8; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 597.
[25] R v Storey (1978) 140 CLR 364, 372, 379-380, 388-389; Rogers v The Queen (1994) 181 CLR 251, 278-280. See also Director of Public Prosecutions v Humphrys [1977] AC 1, 19-21, 40, 48, 58 and R v Davis [1982] 1 NZLR 584.
It is considered that the power to stay a matter for abuse of process is sufficiently broad to cater for the protection offered by the doctrine of issue estoppel without the added complexity.[26] The principles and values underpinning the doctrines of res judicata and issue estoppel have been invoked by courts as factors relevant to the determination of whether a cause of action or prosecution amounts to an abuse of process.[27] The central principle invoked is known as the principle of incontrovertibility. In Connelly v Director of Public Prosecutions, Lord Pearce observed:[28]
A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underly the pleas.
[Original Emphasis]
In Carroll, Gleeson CJ and Hayne J approved this statement of Lord Pearce.[29] Their Honours went on to observe:[30]
The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility and, in any event, it would be unwise to attempt to do so. It is a proposition which has not been held to preclude persons other than the prosecution asserting in later proceedings that the person committed the crime of which he or she was acquitted at trial.
[26] Rogers v The Queen (1994) 181 CLR 251, 255; R v Davis [1982] 1 NZLR 584, 589.
[27] See R v Carroll (2002) 213 CLR 635; Garrett v The Queen (1977) 139 CLR 437; Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996) Ch 26.
[28] Connelly v Director of Public Prosecutions [1964] AC 1254, 1364.
[29] R v Carroll (2002) 213 CLR 635, [37]-[38], [45].
[30] R v Carroll (2002) 213 CLR 635, [45].
Gaudron and Gummow JJ in Carroll referred to the interests at stake where a subsequent prosecution called into question determinations made in an earlier prosecution:[31]
The interests at stake in a case such as the present were discussed in Rogers v The Queen and in Pearce v The Queen. They touch upon matters fundamental to the structure and operation of the legal system and to the nature of judicial power. First, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive [interest reipublicae ut sit finis litium]. Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct [res judicata pro veritate accipitur]. This reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute. Thirdly, there is the interest of the individual in not being twice vexed for one and the same cause [nemo debet bis vexari pro una et eadem causa]. Finally, there is the principle that a cause of action is changed by judgment recovered in a court of record into a matter of record, which is of a higher nature [transit in rem judicatam].
[Footnotes omitted.]
[31] R v Carroll (2002) 213 CLR 635, [86]; see also Island Maritime Ltd v Filipowski (2006) 226 CLR 328, [41]; Rogers v The Queen (1994) 181 CLR 251, 273; R v Gilham (2007) 73 NSWLR 308, [5]-[24] (Spigelman CJ), [149]-[156] (McClellan CJ at CL).
Gaudron and Gummow JJ joined with Gleeson CJ and Hayne J in Carroll in determining that while the principle of incontrovertibility supported the proposition that a prior acquittal could not subsequently be controverted, it was unnecessary to decide whether it had any broader application.[32] With the exception of McHugh J, the other members of the Court declined to go so far as to propound a test to the effect that anything which answers the description of “calling into question” or “tending to undermine” judicial decisions infringes the principle of incontrovertibility. Rather, the principle is to be applied on the basis of the values that underpin it.[33]
[32] R v Carroll (2002) 213 CLR 635, [93].
[33] R v Gilham (2007) 73 NSWLR 308, [55] (Spigelman CJ).
The power to stay proceedings relies heavily on the principle of incontrovertibility as discussed above. The exercise of that power requires that a court undertake a balancing exercise. The balancing exercise permits a court to take into account competing public interests. That exercise is capable of accounting for all principles and values that are at stake where the principle of incontrovertibility is invoked. Consequently, the capacity to invoke the principle of incontrovertibility in a given case is not necessarily decisive.
Against the background of the foregoing discussion of the guiding principles and also of the history of the proceedings, it is convenient to now turn to the determination of the Director’s appeal.
Different Parties
In the within proceeding, the District Court Judge observed:[34]
…It does not make any material or relevant difference that, in the former proceedings, the State (in right of the Department for Families & Communities) is trying to prove criminal conduct and, in the latter, the Office of the Director of Public Prosecutions is trying to prove it.
[34] R v Dalton [2011] SADC 55, [4].
In my view, for the following reasons, the Judge incorrectly and inappropriately conflated the Director, the Department and the Police as though they were all the one party. Further, the Judge failed to recognise the separate and distinct role of the Director under the Director of Public Prosecutions Act 1991 (SA) and overlooked the submission that the Director had in no sense been a party to or had control over the Workers Compensation proceedings.
The Department for Families and Communities and the Director are aspects of the Crown. However, in my view they are not to be treated for the purposes of the law as the one entity. In TransAdelaide v Evans, Doyle CJ observed:[35]
I am content to assume that TransAdelaide is part of the Government, that it is the Crown for the purposes of the Crown Proceedings Act, that a whole range of legal rules or principles that apply to the Crown apply to TransAdelaide. But it remains the fact that TransAdelaide is a statutory corporation with its own separate identity. It may be the Crown, and can be described as the Crown, for a range of purposes. But to call it the Crown does not, as it were, dissolve its corporate status and identity. To do so does not, in some mystical way, cause TransAdelaide to merge into another entity called the Crown. As I said, it retains its separate identity as a statutory corporation.
[35] TransAdelaide v Evans (2005) 98 SASR 394, [30].

The Director of Public Prosecutions is a statutory officer appointed by the Governor pursuant to section 4 of the Director of Public Prosecutions Act. The Office of the Director of Public Prosecutions is similarly established by statute, and the Director has the administration and control of that office.[36] Section 9(1) provides that, subject to the Act, the Director is entirely independent of direction or control by the Crown or any Minister or officer of the Crown. Under section 9(2) only the Attorney-General may, after consultation with the Director, give directions and furnish guidelines to the Director in relation to the carrying out of the Director’s functions. That power does extend to giving direction in particular cases.[37] Absent a direction, the Director alone is responsible for the institution and conduct of proceedings in the District Court.[38]
[36] Director of Public Prosecutions Act 1991 (SA) section 6.
[37] See Nemer v Holloway (2003) 87 SASR 147.
[38] Director of Public Prosecutions Act 1991 (SA) section 7(1)(a), Criminal Law Consolidation Act 1935 (SA) section 275.
By contrast, the Department for Families and Communities was created by proclamation of the Governor under section 26 of the Public Sector Act 2009 (SA).[39] The Chief Executive of the Department possesses independence only in the exercise of a quasi-judicial or statutorily independent function conferred upon that position or in the making of an employment decision. Otherwise, the Chief Executive is subject to the direction of the Minister responsible for the administration of the Department.[40] The Department is not an independent legal entity.[41] In accordance with section 5 of the Crown Proceedings Act 1992 (SA), any proceedings against the Department are brought against the Crown. Any proceedings instituted at the behest of the Department are instituted on the instructions of the Minister. The Minister acts independently of the Attorney-General and of the Director.
[39] Or continued under the transitional provisions of that Act.
[40] Public Sector Act 2009 (SA) sections 28, 31, 33.
[41] Although the Minister, if a body corporate, may be: Administrative Arrangements Act 1994 (SA) section 7.
In Health Care Complaints Commission v Litchfield,[42] a doctor had been acquitted by a jury on charges relating to sexual offences against patients. He was later referred to the Medical Tribunal who suspended him for nine months, finding that the conduct was unlikely to have been for any genuine medical purpose and was motivated in part by sexual gratification. The doctor initiated a cross-appeal on the basis that the Tribunal should have excluded any evidence before it that challenged the correctness of the acquittal based on the principle of double jeopardy. The New South Wales Court of Appeal observed:[43]
It is strongly arguable that there is no identity of parties in this case. The criminal proceedings were conducted by the Director of Public Prosecutions on behalf of the Crown…These proceedings have been conducted by the Commission, which is a statutory body representing the Crown…The Director and the Commission are both servants or agents of the Crown … but it does not follow that there is identity of parties. …
[Footnotes omitted.]
[42] Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630.
[43] Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 635.
In Roberts v Western Australia,[44] the appellant had divorced her husband, which led to proceedings in the Family Court held over 29 days. A Family Court Judge made findings that during the marriage the appellant had written and signed cheques on the husband’s account with the husband’s knowledge and he had authorised her to write and sign cheques on his account. The Judge found that the husband tolerated this misuse and deceptive behaviour until the relationship deteriorated. The Judge rejected the suggestion that the husband never authorised the appellant to sign his cheques.
[44] Roberts v Western Australia (2005) 152 A Crim R 346.
The appellant was charged with 89 counts of forgery and 89 counts of uttering a cheque on the husband’s account, which charges were on foot at the time of the Family Court proceedings. Before trial, the appellant sought to have the proceedings dismissed as an abuse of process on the basis that the issue had been dealt with in the Family Court proceedings in her favour. That application was refused. It was subsequently raised on appeal. McLure J observed that “this is a case where an issue determined in earlier civil proceedings is sought to be re-litigated in subsequent criminal proceedings”.[45] Referring to the principle in Walton v Gardiner that a stay should be granted if the continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings, Templeman J, with Jenkins J agreeing, said:[46]
Despite the width of that principle, no authority was cited to the court in which it had been held inappropriate to prosecute criminal proceedings where the issues which fell to be determined in those proceedings had been determined previously in civil litigation. That is perhaps because subsequent criminal proceedings, while no doubt oppressive to the accused person, could not usually be said to be unjustifiably so: in most, if not all cases, the public interest in prosecuting alleged offenders would far outweigh the oppressive nature of the proceedings.
[Original Emphasis]
[45] Roberts v Western Australia (2005) 152 A Crim R 346, [155].
[46] Roberts v Western Australia (2005) 152 A Crim R 346, [50].
In my view, it cannot be said that the proceedings before the Workers Compensation Tribunal and the District Court Criminal proceedings are the same. The parties in each relevant proceeding are different. The difference in parties and the distinct and independent role of the Director refutes the suggestion that the proceedings in the District Court should be characterised as an attempt by the Crown to collaterally attack the decision of the Deputy President.[47] It is to be noted that no allegation of mala fides or misfeasance in public office on the part of the Director has been made.
[47] Contrast to Zollo v National Australia Bank Ltd [2009] SASC 38.
Has the Director Had the Opportunity to Bring his Case
The District Court Judge placed weight on what he described as the strong endeavours made by the Department for Families and Communities to prove serious and wilful misconduct. The Judge further commented as follows when faced with the submission that the prosecution in the District Court had provided the additional material:[48]
It is true that the prosecution in this court has provided additional material with a view to strengthening its case against Mrs Dalton. However, none of it amounts to fresh evidence in the accepted legal sense. Due diligence and attention to detail would have revealed that material for the purposes of the workers compensation trial. I mention again that it is not as if criminal proceedings were not in contemplation and the police were not involved. Any gaps in proof could have been readily filled in the abundant available time. …
It is apparent that the Judge, in making the above observation, conflated the role of the Director and that of the Department.
[48] R v Dalton [2011] SADC 55, [50].
Once it is understood that different parties are involved and that the Director had no say in and no control over the case presented by the Department in the Tribunal, the conclusion is to be drawn that the Director had no opportunity to bring his entire case to the Court on an earlier occasion. This conclusion is supported and strengthened by the fact that the cause being litigated in the Workers Compensation Tribunal was an entirely different cause to that being addressed in the criminal proceedings. The two proceedings were entirely different when one contemplates the rights, entitlements and liabilities being litigated.
It was submitted by the Director that in no real sense could it be said that through the criminal proceedings, the Director was mounting a collateral attack to an adverse outcome that the Director had sustained in earlier proceedings. The Director drew attention to the observations of the House of Lords in Hunter v Chief Constable of the West Midlands Police.[49] Their Lordships had concluded that civil proceedings were an abuse of process on the basis that the purpose was to amount a collateral attack upon the final decision of a trial judge in criminal proceedings. Their Lordships observed:[50]
The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack Upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
[49] Hunter v Chief Constable of the West Midlands Police [1982] AC 529.
[50] Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 541.
In my view, these submissions are well based and provide, in themselves, a reason to refuse the application for a stay in the present proceeding.
Twice Vexed
An assumption underlying the rules of preclusion which informs the principle of incontrovertibility is that the prosecutor of proceedings has had a full opportunity to bring before the court its entire case and as a consequence, the defendant is twice vexed.
I do not consider that in any sense Ms Dalton is twice “vexed”. There has not been an exposure to a risk of punishment on two occasions for the same act or acts. The proceedings in the Tribunal did not carry with them the risk of punishment. The District Court proceedings are the first and only prosecution of Ms Dalton arising out of the relevant events. I consider the observations of Mason P in Adler[51] to be pertinent. In that matter, the Australian Securities and Investments Commission had initially taken action against Adler under the civil penalty provisions of the Corporations Act. Later, proceedings were instituted against Adler under the criminal provisions of the Corporations Act relating to stock market manipulation and the making of false or misleading statements. The submissions made by Adler that the proceedings were an abuse of process were rejected. Mason P observed:[52]
But the "double jeopardy" that was the focus of attention throughout the reasons in Carroll was (in Gaudron and Gummow JJ's words at [84]) "placing an individual twice in jeopardy of criminal punishment for the one incident or series of events". Similarly, McHugh J referred to the main rationale of the principle of double jeopardy as "prevent[ing] the unwarranted harassment of the accused by multiple prosecutions" (at [128], citing Friedland, Double Jeopardy (1969), pp 3-4). As to abuse of process by successive prosecutions, see also Pearce per McHugh, Hayne and Callinan JJ at [29] and per Gummow J at [67]. This type of jeopardy is simply not involved in the present case, this being the first and only prosecution of the appellant arising out of the relevant events.
Ms Dalton was not relevantly in jeopardy in the Tribunal, and as a consequence, this is not a matter of double jeopardy.
[51] Adler v Director of Public Prosecutions (Cth) (2004) 149 A Crim R 378.
[52] Adler v Director of Public Prosecutions (Cth) (2004) 149 A Crim R 378, [50].
Scandal of Conflicting Decisions
The District Court Judge concluded that “to allow the criminal proceedings to proceed would risk the scandal of conflicting decisions”. In reaching this conclusion, the Judge reviewed a number of authorities, but did not clearly articulate how the suggested scandal would arise. The Judge appears to have reasoned that it was appropriate for the Workers Compensation Tribunal to make findings in relation to the alleged fraud and that this was sufficient to allow the conclusion of “scandal”. The Judge made no detailed analysis of the Tribunal proceedings and, in particular, did not identify the true nature of the issues arising in those proceedings.
The District Court Judge considered that the supposed scandal of conflicting decisions was highlighted by the possibility that if the Director succeeded in the criminal proceeding, Ms Dalton could be in a position of recovering weekly payments for compensation while in prison. This is incorrect and was conceded by Ms Dalton’s counsel to be incorrect.
The principle that a court will grant a stay to avoid a scandal of conflicting decisions is to be understood as recognising the undesirability of conflicting records as to the rights, entitlements and liabilities between the same legal entities on the same issue determined by the exercise of judicial power. The judicial determination by the Workers Compensation Tribunal and the jury verdict in criminal proceedings, do not fall within such characterisation.
Further Matters
The factual questions before a jury in the District Court proceedings are not the same as the factual questions arising before the Tribunal. Matters relevant to the proof of the offences charged were not considered in the Tribunal proceedings. The core issue in the Tribunal was whether Ms Dalton had engaged in serious and wilful misconduct. What amounts to serious and wilful misconduct is not the same as the falsification of accounts. It is to be accepted that there will be overlap of evidence to be adduced, but the essential questions to be answered are different.
Further, by reason of the provisions of the Workers Rehabilitation and Compensation Act, a finding that Ms Dalton had suffered a serious and permanent disability meant that it was not necessary for the Tribunal to decide that Ms Dalton had not engaged in serious misconduct. As Doyle CJ noted in Dalton (No 3) in relation to the issue of serious misconduct, it was not necessary but merely appropriate to deal with it:[53]
In short, the Deputy President considered and accepted an argument that Mrs Dalton's employment was "a substantial cause of the disability". He found in her favour that the disability did not arise "wholly or predominantly" from the reasonable action taken by the Chief Executive. In light of the uncontested finding that she was suffering from serious and permanent disability, the issue of "serious and wilful misconduct" did not have to be determined. Of course, it was appropriate to deal with it.
[53] Dalton v The State of South Australia (No 3) (2010) 107 SASR 435, [32].
The Balancing Exercise
Serious allegations of criminal misconduct have been raised in the District Court criminal proceedings. The Director initiated those proceedings in the performance of his independent statutory duties. The Director has the conduct of those proceedings. This is the first occasion on which the primary prosecution agency of the State of South Australia has had the opportunity to undertake the very function for which it exists. There is a strong public interest in the trial proceeding.
A permanent stay in the circumstances of this matter will put at risk the public confidence in the administration of justice. The conclusion of the Workers Compensation Tribunal was that it had not been established that Ms Dalton had engaged in serious and wilful misconduct. The Deputy President criticised the manner in which the Department ran its case and in particular, was critical as to the extent of the evidence called in support of the Department’s case. The Deputy President’s conclusion was restricted – the evidence adduced by the Department did no more than raise a suspicion. These factors when weighed, overwhelmingly support the conclusion that the District Court criminal proceedings should continue to trial.
Conclusion
I would allow the appeal. I would set aside the order staying the Information and direct that the matter proceed to trial.
SULAN J: I agree with the reasons of Gray J and the order that he proposes.
STANLEY J: I would allow the appeal for the reasons given by Gray J. I would set aside the order granting a stay and direct that the matter proceed to trial.