R v Dalton - [2011] SADC 55

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v DALTON
[2011] SADC 55
Reasons for Decision of His Honour Judge Rice
15 April 2011
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Application for a permanent stay of an Information - defendant employed by Department for Families & Communities - made a claim for workers compensation - claim rejected - dispute went to trial - one of the main allegations by the Department against the defendant was that she had falsified records and misappropriated funds under her control - a Judge of the Workers Compensation Tribunal rejected the allegation of falsification of records and misappropriation of funds - defendant found entitled to workers compensation - criminal proceedings commenced at same time workers compensation trial running - criminal proceedings alleging same falsification of accounts and misappropriation of funds - whether an abuse of process because of the risk of conflicting criminal court decision - application granted - Information stayed.
Criminal Law Consolidation Act 1935 (SA) s 178; Workers Rehabilitation and Compensation Act 1986 (SA) ss 30A, 30B and 90, referred to.
Rivers v Rivers and Others (2002) 84 SASR 426; Adler v Director of Public Prosecutions (Cth) (2004) 149 A Crim R 378, distinguished.
Rogers v The Queen (1994) 181 CLR 251; Walton v Gardiner (1992-1993) 177 CLR 378; Dalton v State of South Australia (In Right of the Department for Families & Communities & Anor (No 3) [2010] SASC 179; Hunter v Chief Constable of the West Midlands Police and Others [1982] AC 529; Stephenson v Garnett [1898] 1 QB 677; Moevao v Department of Labour [1980] 1 NZLR 464; Zollo v National Australia Bank Ltd & Anor [2009] SASC 38; Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473, considered.

R v DALTON
[2011] SADC 55
Introduction

By an application received on 18 February 2010, the defendant applies for a number of orders relating to the Information dated 21 January 2010 whereby she is charged with 184 counts of falsification of accounts, contrary to s 178 of the Criminal Law Consolidation Act 1935 (SA). Although the application seeks various orders, some expressed to be in the alternative, in the first instance a permanent stay of the Information is sought so as to prevent an abuse of the process of the Court. If that application fails, the other aspects of the application will need to be argued.
In essence, the defendant submits that the substance of these charges was the subject of judicial determination in favour of the defendant and that to allow this prosecution to proceed would bring the administration of justice into disrepute by generating conflicting decisions on the same issue.
As can be seen from the statement of the submission in those terms, there are a number of preliminary requirements that need to be satisfied before the foundation for the submission is made out. Assuming that foundation is made out, there then arises the question of “…a balancing of a variety of considerations”: Rogers v The Queen[1], adopting Mason CJ, Deane and Dawson JJ in Walton v Gardiner[2]. This is a process of weighing competing considerations and involves the exercise of a judicial discretion.
Earlier proceedings in the Workers Compensation Tribunal (both before the Deputy President and on appeal to the Full Bench) and the Full Court of the Supreme Court
[1] (1994) 181 CLR 251 per Mason CJ at 256
[2] (1992-1993) 177 CLR 378 at 396
Initial proceedings before the Deputy President
It is necessary to say something of the background of this matter to understand the present application. Much of this history is drawn from the judgment of Doyle CJ in Dalton v State of South Australia (In Right of the Department for Families & Communities & Anor (No 3)[3].
[3] [2010] SASC 179
Mrs Dalton was employed with the (former) Department of Human Services as the Manager of the Modbury District Office of Family & Youth Services. On 30 September 2003, Mrs Dalton made a claim for workers compensation on the basis that, in the course of her employment in the Department, she sustained psychological injury.
By letter dated 14 March 2005, an officer of the Department determined the claim and rejected it. Included in the grounds for that determination were assertions that $1.3 million of FAYS funds was unaccounted for since 1994 and that a departmental investigation had begun into the misappropriation of funds relating to domestic violence financial assistance payments authorised by Mrs Dalton. The Department was asserting that any disability was wholly or predominantly attributable to serious and wilful misconduct on the part of Mrs Dalton.
Mrs Dalton was asserting that she suffered psychological injury and severe depression (which was not seriously disputed) which made her unfit to work. She claimed the cause was overwork and stress attributable to her employment. The Department was asserting that the depression (and therefore disability) arose after the service on her, on 9 May 2003, of a notice that she was suspected of having misappropriated money. By virtue of the notice, she was suspended. On 12 May 2003, Mrs Dalton appealed against her suspension.
Mrs Dalton filed a Notice of Dispute pursuant to s 90 of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”). The hearing of this dispute came before Deputy President Olsson for judicial determination. The proceedings before the Deputy President concentrated on two broad aspects. First was the fact or otherwise of a psychological injury amounting to a disability and, secondly, whether Mrs Dalton had misappropriated departmental funds.
As to the first, the Deputy President accepted the evidence of a psychiatrist called on behalf of Mrs Dalton that the actions of the Chief Executive of the Department in suspending Mrs Dalton was not a cause of her disability and was, at most, a contributing factor. The Deputy President found that, after the events of May 2003, “…her condition of depression worsened”. The doctor found her totally unfit for work from May 2003 “…a matter as to which he was not challenged in cross-examination” (Deputy President at para 488).
Sections 30A and 30B of the Act provide as follows:
30A―Psychiatric disabilities
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
…
30B―Effect of misconduct etc
(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.
The Deputy President concluded that s 30A of the Act did not disentitle Mrs Dalton to compensation for her disability.
The Deputy President also considered at length, and made findings, as to whether there had been any misappropriation of departmental funds. Those findings are referred to below. However, at this point, I refer to Doyle CJ in Dalton (No 3) (supra):
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.
It is convenient also to refer back to the primary contentions on this topic by the respondent Department before the Deputy President and his conclusions:
[709]The respondent essentially contends that the evidence in this case compels the conclusion that the impugned transactions were patently fabricated by the applicant – that both the domestic violence outreach program referred to by the applicant and the purported clients in relation to it did not even exist and that the payments related to them were fraudulently misappropriated by the applicant for her own private purposes. It is argued that the major motive for so doing was to provide funds with which to feed the applicant’s gambling addiction.
The Deputy President’s conclusions were:
[715]At the end of the day it must be said that such are the obvious question marks and loose ends remaining on the whole of the evidence that, at their very highest, the matters relied on by the respondent cannot rise above the level of some degree of suspicion. They certainly fall far short of satisfying the principles adverted to in Briginshaw and Neat Holdings. The respondent has not clearly and unequivocally demonstrated the criminal conduct alleged by it.
[716]As to this, I regard the absence of any explanation of the multiple staple marks on the left margins of the original applications for assessment, coupled with the failure to discover the detail of the vast amount of material garnered by Boyd and still under his control, as critical considerations.
[717]In so saying I by no means ignore the conduct of the applicant in failing to make CIS entries in respect of the impugned transactions related to the period November 2002 to April 2003. Clearly, she was in breach of her duty to the respondent to make the entries and that failure is also pertinent to a consideration of whether the impugned transactions may have been bogus. On the other hand, the absence of information as to whether CIS entries were also missing in relation to other types of transactions processed by the applicant in the same timeframes renders it impossible to determine whether or not such absence was or was not a significant and potentially sinister aberration.
[718]The evidence indicates that this default on her part was not mere gross negligence or deliberate and wilful default on her part. Rather, it was the product of her steadily intensifying depression at the time.
[719]The material before me establishes that she perceived herself to be under inordinate work related pressures at the time, with which she was obviously not coping due to her increasing levels of dysfunction. The making of the entries was cumbersome and time-consuming and her procrastination is readily explicable in terms of her mental health condition.
[720]I have elsewhere pointed out that the failure to make the CIS entries does not necessarily give rise to any sinister inference, because the relevant transactions were otherwise entirely transparent and the appropriate details were in fact recorded in the applications for assessment.
[721]There are simply too many remaining possibilities consistent with innocence and too many gaps in the respondent’s case to enable me to conclude with the requisite degree of satisfaction that the positive aspects and findings as to the applicant’s evidentiary case have been overborne.
[722]It must be said, in that regard, that in large measure the respondent has substantially been the author of its own misfortune. There seems to have been a distinct lack of industry on its part to do those things that might have rendered its case more convincing. It appears to have relied to a very large extent on what actions the police have been content to take for their purposes, rather than accept its own direct obligations.
[723]For reasons that I have earlier discussed at length, I view much of the evidence and conclusions expressed by the witness Boyd with considerable reservations. I accord it little weight where they are in conflict with the evidence of the applicant.
[724]I conclude that the respondent has not discharged its evidentiary onus of proving that the applicant was guilty of any relevant serious and wilful misconduct.
The conclusions reached by the Deputy President amount to this. On the assessment of the evidence before him, Mrs Dalton had suffered a serious and permanent disability. That finding was sufficient to entitle Mrs Dalton to compensation even if she had misappropriated money. Theoretically, the first finding was all that was necessary and there was no need to go further and consider the question of whether there was sufficient proof that Mrs Dalton had misappropriated funds. However, not to have considered the question of fraud had the potential for a number of consequences.
First, the conclusion of serious and permanent disability may have been overturned on appeal, leaving open the question of fraud (leading to the case being remitted to the Deputy President to consider that aspect). Secondly, bearing in mind that so much of the case focused on the alleged fraud, it would have been distinctly unfair to Mrs Dalton not to spell out the conclusions to which he had come. This topic is further dealt with below.
Returning to the history of the proceedings, the Deputy President, bearing in mind the conclusions to which I have referred, set aside the determination of the Department and determined that Mrs Dalton was entitled to weekly payments.
Full Bench of the Workers Compensation Tribunal
The Department appealed to the Full Bench of the Workers Compensation Tribunal.
One of the main contentions on appeal was that the Deputy President had misunderstood or misapplied the correct legal approach to circumstantial evidence. In essence, it was submitted that the Deputy President did not consider the cumulative approach to items of circumstantial evidence. The Full Bench upheld this ground of appeal and felt it unnecessary to consider the other grounds of appeal. The appeal was allowed and remitted for re-hearing before another Deputy President. The order for weekly payments was set aside.
Full Court of the Supreme Court – Dalton v The State of South Australia (In the Right of the Department for Families & Communities [2010] SASC 45
Mrs Dalton then appealed to the Full Court of the Supreme Court against the decision of the Full Bench of the Workers Compensation Tribunal. It was submitted on behalf of Mrs Dalton that the Full Bench of the Tribunal erred in finding that the Deputy President failed to consider the items of circumstantial evidence in a cumulative fashion.
However, a question was raised as to the competency of the appeal. By virtue of amendments to the Act, the question was reduced to whether the “decision” which was the subject of appeal was in existence prior to 1 January 2009. It is unnecessary for present purposes to trace the events and reasoning, but the finding was made that the decision being appealed against was made on 2 December 2008 at which time there was no right of appeal to the Full Court of the Supreme Court. On that basis the appeal to the Supreme Court was incompetent.
Notwithstanding that finding, the Full Court expressed its views on the substantive issues that were the subject of argument. Again, for present purposes, it is unnecessary to trace the argument, evidence and the reasons of the Deputy President. In the end, the Full Court of the Supreme Court expressed the view that the Full Bench of the Workers Compensation Tribunal had erred in finding that the Deputy President evaluated the circumstantial evidence in an incorrect manner.
In addition to that, the question arose whether a failure by the Deputy President to properly assess circumstantial evidence gives rise to a question of law. The Full Court of the Supreme Court expressed the view that the appeal then before it did not raise a question of law and was an additional reason why the appeal to it was incompetent.
Full Court of the Supreme Court – Dalton v The State of South Australia (In Right of the Department for Families & Communities) & Anor (No 3) [2010] SASC 179
The next step in the history of these proceedings was that Mrs Dalton applied for an order for judicial review. She sought to set aside the decision of the Full Bench of the Workers Compensation Tribunal on the basis that the Full Bench lacked jurisdiction to determine the appeal because its jurisdiction only lay to decide “a question of law”. The Full Court also heard argument that the Full Bench exceeded its jurisdiction because the Full Bench allowed the appeal and set aside the determination without finding that the determination was wrong.
The Full Court considered that the Full Bench acted without jurisdiction, or in excess of jurisdiction, in both respects. The orders made by the Full Bench of the Workers Compensation Tribunal were quashed. The matter was not remitted to the Full Bench for further consideration. It was left to Mrs Dalton to apply to the Full Bench for an order striking out the appeal as incompetent.
Final position of the workers compensation proceedings
The proceedings before the Full Bench came to an end on 30 July 2010. The Full Bench made an order that the State’s (Department for Families & Communities) Notice of Appeal of 19 January 2008 be struck out as incompetent. Ancillary orders were also made.
That tortuous history of the various proceedings was necessary to illustrate that the findings and comments by the Deputy President about an alleged misappropriation of departmental funds by Mrs Dalton, remain in place. (I refer back to those findings reproduced earlier in these reasons.) It was for this reason, earlier in submissions on the application, that I simply adjourned the application until the rights of all parties had been finally determined. That has now happened. Rights of appeal and the like have been exhausted or not pursued. That was not the position at the stage of the initial argument on the application.
Charges on the Information as compared with the allegations of fraud in the workers compensation proceedings
As noted, the Information charges 184 counts of falsification of accounts. Each count is essentially in the same terms but relating to a separate transaction. Count 10 is reproduced as a sample:
Tenth Count
Statement of Offence
Falsification of Accounts. (Ibid.)
Particulars of Offence
Anne Elizabeth Dalton on or about the 6th day of November 2002 at Modbury, being a servant of the Department of Family and Youth Services, wilfully and with intent to defraud, falsified an account belonging to or in the possession of the Department, being an emergency funds application in the amount of $400.00.

Before the Deputy President there were 272 impugned transactions that were said to comprise the alleged misappropriation of departmental funds. As originally charged, the Information in the District Court comprised 271 counts. The criminal proceedings were already on foot by the time of the Workers Compensation Tribunal hearing. Paragraph 72 of the Deputy President’s reasons are as follows:
[72]At the commencement of the hearing I was of the understanding that the respondent was actually setting out to impugn a total of 272 transactions adverted to in the affidavit of the witness Boyd (tr 45), 271 of which were the subject of criminal charges.
The criminal charges laid in the Magistrates Court on 31 August 2006 were, as here, falsification of accounts charges.
At the urgings of the Court, the number of counts was reduced to make the trial more manageable. Only the timeframe was narrowed. A fresh Information charging 184 counts was filed. The 184 counts formed part of the original 271 counts. In other words, the present charges, with comparable particulars, formed part of the impugned transactions.
The comments and conclusions of the Deputy President were not based solely on the weight (or lack of it) of the oral evidence and documents produced by the Department. The trial lasted 40-odd days, for about half of which Mrs Dalton was subject to cross-examination. The Deputy President had the fullest opportunity to assess the allegedly incriminating material and her response to it. Bearing in mind that the Department bore the onus, on balance, of proving the alleged fraudulent nature of these transactions, it is noteworthy that the Deputy President observed that the evidence, at its highest, could not rise above the level of some degree of suspicion (para 715 (supra)). The Department did not prove serious and wilful misconduct, here alleged to be falsification of accounts as a means of misappropriation of funds.
As I understand the position, the same issues are intended (hoped) to be proved beyond reasonable doubt in these criminal proceedings as were failed to be proved on balance in the worker’s compensation proceedings. I do not understand the prosecution to be now relying upon evidence that is materially different or better than that in the workers compensation proceedings. It may be more ordered and able to be presented in a more comprehensive fashion, but the substance remains the same.
One final matter under this heading. The nature of the workers compensation proceedings is clearly different from that of the criminal proceedings. However, one of the main areas of focus in the former was to prove, on balance, criminal behaviour, that is, misappropriation of funds. The object of the latter is to prove that same conduct as criminal, that is, prove beyond reasonable doubt. 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.
Legal principles – conflicting decisions bringing the administration of justice into disrepute
The ability of the District Court to order a permanent stay of proceedings is well-recognised. On the topic of what is referred to as the “scandal of conflicting decisions”, the applicant relies on a number of decisions.
In Hunter v Chief Constable of the West Midlands Police and Others[4], there had been earlier criminal proceedings whereby the trial Judge was satisfied, beyond reasonable doubt, that six men charged with the Birmingham bombings had not been assaulted by police, that their statements had been voluntary and should be admitted in evidence. All six were convicted and sentenced to imprisonment for life. The six men later issued civil proceedings claiming damages against the police for injuries caused by the assaults, being the same allegations that had been before the trial Judge in the criminal proceedings. The question came before the House of Lords as to whether the civil action against the police ought to be struck out as an abuse of the process of the Court. Lord Diplock (at p 541) said this:
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.
[4] [1982] AC 529
As A.L Smith LJ posed in his judgment in Stephenson v Garnett[5], “…it has been shewn that the identical question sought to be raised has been already decided by a competent court.”
[5] [1898] 1 QB 677 at 680-681
A not dissimilar situation to that before the court in Hunter (supra) came before the High Court in Rogers v The Queen (supra). Again there were two sets of proceedings, but both were criminal. The accused was initially before the court on four counts of armed robbery. The prosecution was seeking to rely upon a number of recorded interviews. The trial Judge rejected the use of the interviews on the basis they were not made voluntarily. The trial proceeded without that evidence and there were two acquittals and two convictions.
Some three years later, the accused was indicted on yet more armed robberies and the prosecution was again seeking to rely upon two of the recorded interviews previously rejected. The majority of the court (Mason CJ, Deane and Gaudron JJ) considered that the later tender of recorded interviews would be a direct challenge to the earlier determination and, in the circumstances, would be an abuse of process. Mason CJ referred to Hunter (supra) and Moevao v Department of Labour[6] and went on to say (at 256-257):
These statements indicate that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. This led the majority in Walton v Gardiner to state that the question whether criminal proceedings should be permanently stayed was to be determined by a weighing process involving a balancing of a variety of considerations. Those considerations, which reflect the two aspects of abuse of process outlined above, include:
‘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 the present case, a weighing of these considerations inevitably compels the conclusion that a stay should be ordered. The public interest in securing the convictions of the appellant is clearly outweighed by other relevant considerations. The tendering of the confessions by the prosecution was vexatious, oppressive and unfair to the appellant in that it exposed him to re-litigation of the issue of the voluntariness of the confessional statements in the records of interview. This issue had already been conclusively decided in the appellant’s favour because the confessions sought to be tendered – although relating to different crimes – were made at the same time and in exactly the same circumstances as the confessions that were the subject of the voir dire. Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue. These considerations necessarily prevail over any competing public interest in the securing of convictions against the appellant.
[6] [1980] 1 NZLR 464 at 481
A number of observations need to be made that arise from that passage. The first is that the comments relate to a determination of “an issue”. In other words, the determination does not have to relate to the final result as would be recorded in the records of the court. It is sufficient to relate to “an issue”, perhaps a step towards the final result.
Secondly, as I touched on earlier, there is a need for the issue to have been finally decided. It was for this reason I initially adjourned the application until the judicial review proceedings were at an end and the rights of the parties finally determined. In the end, the findings of the Deputy President on fraud remained or were perhaps reinstated.
Thirdly, the attempted or proposed re-litigation must relate to the same issue. As I have endeavoured to illustrate earlier in these reasons, the criminal proceedings clearly relate to the same issue that had been one of the two main areas of focus in the workers compensation proceedings.
And, finally, the re-litigation must be calculated (not in the sense of that being the purpose) “…to erode public confidence in the administration of justice by generating conflicting decisions on the same issue” (p 257). It is sufficient if conflicting decisions is the potential result, particularly where the prosecution here is undertaking to prove fraud.
I mention one other aspect of the authorities which makes this point. As was made plain by Mason CJ in Rogers (supra), “…The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object…” (at p 255). As it was put by White J in Zollo v National Australia Bank Ltd & Anor[7]:
…the court looks to the effect which determination of the later proceedings may have upon a decision in the earlier proceedings. (Emphasis added)
[7] [2009] SASC 38 at para 80
In Zollo’s case, the first proceedings were civil proceedings that were finally determined by the Full Court against Zollo. Zollo then commenced criminal proceedings in the Adelaide Magistrates Court, charging the National Australia Bank and one of its directors with various criminal offences. The decision of the Judge at first instance granting a permanent stay of the criminal proceedings was upheld on appeal. The Judge at first instance found that “…the issues raised in the Magistrates Court were either identical to or closely related to the issues finally determined by the Full Court.” The Judge found that the purpose, or at least the predominant purpose in the criminal proceedings, was to collaterally attack the findings and decisions of the Full Court (paras 33 and 43).
The case at bar does not seem to be a case of a collateral attack on the findings by the Deputy President on central issues. After all, the criminal proceedings were under way at the time of the workers compensation trial. Clearly, on the applicant’s case, at the very least it is a case where the effect of the criminal proceedings is to impugn the findings and conclusions of the Deputy President.
I need to mention two cases referred to by Mr Barklay, counsel for the prosecution. The first is Rivers v Rivers and Others[8]. The first proceedings were criminal proceedings whereby Mrs Rivers was charged with the murder of her husband. She was acquitted of both his murder and manslaughter. The deceased died intestate and his son sought certain declarations against Mrs Rivers pursuant to the Administration and Probate Act 1919 (SA). For the son to succeed it was necessary to prove that Mrs Rivers unlawfully killed Mr Rivers. It was submitted, inter alia, that the civil proceedings were an abuse of the court’s process. Duggan J (with whom Williams and Martin JJ agreed) delivered the judgment of the court that there was no abuse of process. The headnote provides the relevant principles (p 427):
The purpose of the criminal proceedings was to determine whether the prosecution could prove beyond reasonable doubt that the first defendant committed the offence of either murder or manslaughter. Those alleged offences can no longer be established as crimes rendering the first defendant liable to punishment. However, it remains open in civil proceedings for the court to determine whether there is proof on the balance of probabilities that the first defendant unlawfully killed the deceased, thus disentitling her to any benefit from his estate. [55] In order for the forfeiture rule to operate, a felonious killing must be established, but it is the fact of an unlawful killing established in proceedings outside the context of crime and punishment that give rise to the public policy considerations which form the basis of the forfeiture rule. Nor is there cause for concern about public perception by reasons of the “scandal of conflicting decisions”. [57] The parties are not the same, the nature of the jurisdiction is not the same and the standard of proof is different. There is no risk of embarrassment arising from differing findings. [59]
[8] (2002) 84 SASR 426
For present purposes, the most important aspect of that decision is that there was no attempt to impugn the decision in the criminal proceedings. It was sufficient for the son to prove an unlawful killing by Mrs Rivers which was different than murder or manslaughter. Further, the son was only required to prove an unlawful killing pursuant to the civil onus. The verdicts in the criminal proceedings did not mean Mrs Rivers was innocent, merely that the prosecution failed to satisfy the jury of murder or manslaughter beyond reasonable doubt. This case is therefore distinguishable.
The second case is Adler v Director of Public Prosecutions (Cth)[9]. Adler was subject to proceedings pursuant to the Corporations Act 2001 (Cth), known as civil penalty proceedings, relating to his time as a director of HIH Insurance Ltd. These civil proceedings were heard in the Equity Division of the Supreme Court of New South Wales. Santow J granted certain relief relating to disqualification, compensation and a pecuniary penalty order.
[9] (2004) 149 A Crim R 378
Subsequently, Adler was charged with five offences under the Corporations Law involving stockmarket manipulation and making false or misleading statements. It was sought to argue that the criminal proceedings were an abuse of process. Mason P, with whom the others agreed, rejected that argument (at para 40):
The criminal offences are different in important respects from all of the causes of action in the civil proceedings. The findings and orders made by Santow J were based on the civil standard of proof. There is no attempt to eclipse or challenge a prior acquittal (contrast Carroll). If the appellant is acquitted, this would not be inconsistent with the orders made by Santow J, having regard inter alia to the different standards of proof.
Again, this case is distinguishable. The standard of proof, parties, nature of the proceedings and the order in which they occur are all relevant considerations.
Discussion and findings
There is no doubt in my mind that The State of South Australia (In the Right of the Department for Families & Communities) made strong endeavours to prove serious and wilful misconduct against Mrs Dalton by proving she had fraudulently misappropriated departmental funds. The means of doing that was to identify 272 instances (at least) of the alleged falsification by her of a departmental document relating to an application for a domestic violence emergency payment. Part of the very clear allegation was that the applicants for payment were in fact bogus, and that Mrs Dalton falsified the applications using false names, obtained the proceeds herself and then gambled them away as part of an ongoing gambling addiction.
The prosecution here does not quarrel with the fact that the counts on the Information (271 originally, 184 now) relate to the very same instances used to try to prove, on balance, serious and wilful misconduct in the workers compensation proceedings.
It is clear that these criminal proceedings were on foot in the Adelaide Magistrates Court during the workers compensation proceedings and that the South Australian Police were investigating and mounting a case against Mrs Dalton in conjunction with officers of the Department. What is abundantly clear from the judgment of the Deputy President is that, despite their combined resources, the Department failed dismally to establish, on balance, serious and wilful misconduct of the type alleged. That is despite the trial itself being spread over many months and Mrs Dalton giving evidence over many weeks.
It makes no difference that she initiated the workers compensation proceedings which led to the dispute and trial. She had no income and was entitled to have the dispute resolved as soon as was reasonably possible. In a very real sense that put her at a disadvantage so far as the fraud allegations were concerned. She did not know precisely what the Department was able to present against her even with the pre-trial provision of statements and documents. She had to give evidence first and subject herself to cross-examination without full disclosure of the material to be mounted against her.
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 (see Deputy President at para 722 quoted above).
One of the aspects of the findings by the Deputy President about which I was concerned is whether it was necessary to make the findings relating to the alleged fraud. That concern arose from the fact the Deputy President made the finding, on medical evidence, that Mrs Dalton was suffering from an injury amounting to a total and permanent incapacity. On that basis, there may have been no need to explore serious and wilful misconduct. In this regard I accept the submissions of Mr Lyons that it was necessary to deal with that allegation.
As Mr Lyons observes, Doyle CJ in Dalton (No 3) at para 32 was not saying that determining the issue of fraud was not necessary. Rather, it “…did not have to be determined. Of course, it was appropriate to deal with it.”
It was appropriate to deal with that central issue for a number of reasons. First, as mentioned, the Deputy President did not know whether his primary findings that she was suffering from a serious and permanent disability would survive an appeal. Secondly, the allegation of fraud was so serious and occupied so much of the trial, it was only fair to Mrs Dalton to deal with it. Thirdly, it was relevant to her overall credibility bearing in mind the allegations of the Department. The opinion of the psychiatrist hinged upon her credibility. Her credibility hinged, in part at least, on whether she was guilty of misappropriating funds. Fourthly, the cause of Mrs Dalton’s depression was very much a live issue at trial. This was necessarily linked into the allegation by the Department that these clients did not exist and needed to be resolved. Fifthly, it was accepted at trial, on behalf of Mrs Dalton, that if she misappropriated $1.3 million (or anything like it), that would amount to “gross misconduct” “…which would take her outside of the contract of employment” (submissions before the Deputy President at p 2190). Such a position would preclude her from obtaining benefits under the Act: see Hatzimanolis v ANI Corporation Limited[10].
[10] (1992) 173 CLR 473
Conclusion

I acknowledge that the grant of a permanent stay on the basis of an abuse of process is a remedy to be used but rarely and only then in an exceptional or extreme case: see Walton v Gardiner (supra) at 392. As observed earlier, there is a necessary weighing process and the exercise of a judicial discretion.
The prosecution submits that it would be a real perversion of justice if Mrs Dalton was able to defeat the criminal prosecution on the basis of a decision in a civil action which arose out of proceedings instituted by her and over which the Director of Public Prosecutions had no control. I have already observed that the police were very much involved in the investigation of the departmental fraud and criminal proceedings were on foot at the time of the workers compensation trial using those same allegations. It was necessary for the Deputy President to deal with the allegation of fraud. The evidence did not rise above the level of suspicion. The question of fraud has already been decided by a competent court.
In my view, to allow the criminal proceedings to proceed would risk the scandal of conflicting decisions. The example give by Mr Lyons 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.
To allow these charges to proceed would amount to an abuse of process. I stay permanently the Information dated 21 January 2010.