(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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Dalton [2011] SASCFC 125
Case
[2011] SASCFC 125
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions appealed an order by a District Court Judge granting a permanent stay of criminal proceedings against Ms Dalton. The dispute arose after Ms Dalton made a workers' compensation claim, which was rejected by her employer, a government department. The department's rejection was based, in part, on an investigation that concluded Ms Dalton had misappropriated departmental funds. A Deputy President of the Workers Compensation Tribunal later found that Ms Dalton had established a prima facie case for compensation, determining that the department had not proven its case of misappropriation. Subsequently, Ms Dalton was charged with 184 counts of falsification of accounts. The District Court Judge stayed these criminal proceedings, reasoning that their continuation risked conflicting decisions between the Tribunal and the criminal court.
The central legal issue before the appellate court was whether the District Court Judge erred in ordering a stay of the criminal proceedings. This involved considering whether the continuation of the criminal proceedings constituted an abuse of process, specifically in relation to the concept of "scandal of conflicting decisions" as articulated by the District Court Judge. The appellate court also had to determine if Ms Dalton was being subjected to double jeopardy.
The appellate court found that the District Court Judge had erred in ordering the stay. The court reasoned that Ms Dalton was not twice "vexed" as the workers' compensation proceedings did not carry the risk of punishment, and the criminal proceedings were the first and only prosecution arising from the relevant events. Therefore, the principle of double jeopardy was not engaged. Regarding the "scandal of conflicting decisions," the court found that the District Court Judge had not clearly articulated how such a scandal would arise and had not conducted a detailed analysis of the Tribunal proceedings. The court noted that the District Court Judge's concern that Ms Dalton might recover compensation payments while in prison was incorrect and conceded as such by Ms Dalton's counsel.
The appellate court allowed the Director of Public Prosecutions' appeal, setting aside the permanent stay of the criminal proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.