R v Paterson - [2006] SADC 86

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v PATERSON
[2006] SADC 86
Reasons for Ruling of His Honour Judge Millsteed
28 July 2006
CRIMINAL LAW
Application to stay proceedings on grounds of abuse of process - applicant charged with criminal offences based on allegation that he made false declarations to obtain refunds of GST - pecuniary penalty previously imposed on applicant for substantially the same conduct under administrative penalty provisions in Taxation Administration Act 1953 - whether prosecution of criminal offences would expose applicant to double jeopardy - no double jeopardy - application for stay refused.
Crimes Act 1914 (Cth) s29D; Criminal Code Act 1995 (Cth) s134.2, s11.1; Taxation Administration Act 1953 (Cth) Sch 1 s284.75(1), s284.90; A New Tax System (Goods & Services Tax Administration) Act 1999 (Cth) s255.5(1), s255.5(2), referred to.
Rich v ASIC (2004) 220 CLR 129; Pearce v The Queen (2002) 194 CLR 610; The Queen v Carroll (2002) CLR 635; Adler v DPP (2004) 185 FLR 443; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (2003) 216 CLR 161; R v Whitnall (1993) 68 A Crim R 119; R v Nguyen (1996) 86 A Crim R 521; R v Elvin (1997) 91 A Crim R 213; Rucioch v Police (2004) 88 SASR 326, considered.

R v PATERSON
[2006] SADC 86
Introduction

This is an application for a stay of criminal proceedings.
The applicant, Mathew Graeme Paterson, is charged on an information filed by the Commonwealth Director of Public Prosecutions (DPP) with five counts of Defraud the Commonwealth, 20 counts of Obtain a Financial Advantage by Deception and six counts of Attempt to Obtain a Financial Advantage by Deception.
In relation to each count of Defraud the Commonwealth (counts 1-5) it is alleged that the applicant defrauded the Commonwealth, namely the Australian Taxation Office (ATO), by falsely declaring in a Business Activity Statement (BAS) that he had incurred a certain amount of expenditure in order to obtain a refund of Goods and Services Tax (GST).
In relation to the charges of Obtain a Financial Advantage by Deception it is alleged:
·that the applicant by a deception obtained a financial advantage from another person namely the ATO by falsely declaring in a BAS that he had incurred certain expenditure in order to obtain a refund of GST (counts 6-22);
·that the applicant by a deception obtained a financial advantage from another person namely the ATO by falsely declaring in a BAS, on behalf of Micro Technologies Pty Ltd (Micro), that Micro had incurred certain expenditure in order to obtain a refund of GST (counts 25-27).
In relation to the charges of Attempt to Obtain a Financial Advantage by Deception it is alleged:
·that the applicant attempted to obtain a financial advantage from another person, namely the ATO, by falsely declaring in a BAS that he had incurred certain expenditure in order to obtain a refund of GST (counts 23-24).
·that the applicant attempted to obtain a financial advantage from another person, namely the ATO, by falsely declaring in a BAS, on behalf of Micro that Micro had incurred certain expenditure in order to obtain a refund of GST (counts 28-31).
In relation to each of the attempt charges, the applicant failed to obtain the GST refund sought because the ATO suspected that his claims were fraudulent.
Stay application
The charges fall into two broad categories. First, the counts in which it is alleged that the applicant made false declarations in a personal capacity (counts 1-24) and, second, those in which it is alleged that he made false declarations on behalf of Micro (counts 25-31).
The stay application relates only to counts 1-24. The applicant contends that the proceedings in relation to these counts infringe the rule against double jeopardy because he has already been punished by the imposition of an administrative pecuniary penalty, pursuant to s284.75 of the Taxation Administration Act 1953 (TAA) (enforced by subsequent recovery proceedings) for substantially the same conduct. The applicant submits that the proceedings are therefore oppressive and should be stayed as an abuse of process.
In relation to counts 25-31 which concern the applicant furnishing BAS on behalf of Micro, no administrative penalties were imposed on the applicant. It is for this reason that the application for a stay has been confined to counts 1-24.
Offence provisions
The offence of Defraud the Commonwealth (counts 1-5) was proscribed by s29D of the Crimes Act1914. The section has since been repealed but still applies to offences committed before 24 May 2001.[1] The section provided:
A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence.
Penalty: $50,000 or imprisonment for 5 years or both.
[1] Repealed by Act 137, 2000, Sch 2.
The offence of Obtain a Financial Advantage by Deception (counts 6-22) is proscribed by s134.2 of the Criminal Code Act (1995) (CCA) which relevantly provides:
134.2 (1)     A person is guilty of an offence if:
(a)     the person, by a deception, dishonestly obtains a financial advantage from another person; and
(b)     the other person is a Commonwealth entity.
Penalty:     Imprisonment for 10 years.
(2)     …
…
By virtue of the combined operation of s134.2 and s11.2 of the CCA, it is an offence to attempt to obtain a financial advantage by deception (counts 23- 24). Section 11.2 states:
A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
GST[2]
[2] For an overview of GST laws see Laws of Australia LBC Vol 31.17 [5]-[18]
GST is governed by A New Tax System (Goods and Services Tax Administration) Act 1999 which came into operation on 1 July 2000. The tax applies where an entity registered or required to be registered for GST purposes has supplied goods and services in the course of carrying on an enterprise such as a business.
GST is imposed at the rate of 10% of the value of the taxable supply. The entity must account for this amount to the ATO. The entity will usually charge customers for the value of the goods and services supplied and the amount of GST which it is required to remit to the ATO. If an entity acquires goods or services in carrying on its enterprise, it can claim an input tax credit.
A registered entity must lodge a GST return (incorporated in a BAS) for each tax period which may be monthly or quarterly. The amount that the entity is liable to pay for each tax period is the GST for that period less the input tax credits for that period. If the credits exceed the GST, the entity is eligible for a refund, or a credit against any other tax due.
If an entity fails to account for GST the Commissioner of Taxation (the Commissioner) may impose a general interest charge in respect of the shortfall amount.
Furthermore, pursuant to s284.75 of the TAA, an entity is liable to an administrative penalty if it, or its agent, makes a statement in a GST return that is false or misleading in a material particular that results in the shortfall. The penalty is a fixed percentage of the amount of the shortfall and depends on whether the shortfall resulted from an intentional disregard of the law (75%), recklessness as to the operation of the law (50%), or failure to take reasonable care to comply with the law (25%).[3]
[3] TAA Sch 1 s284.75; s284.90
GST liability (including any administrative penalty) is a debt due to the Commonwealth and payable to the Commissioner.[4] The Commissioner or a Deputy Commissioner may sue in a court of competent jurisdiction to recover the amount owed.[5]
[4] TAA s255.5(1)
[5] TAA s255.5(2)
The alleged offences: Counts 1-24
For present purposes the facts can be stated as follows. At the time of the relevant events the applicant conducted a delivery service business. On 1 December 2000 he registered his business for GST and elected to submit monthly GST returns.
The charges relate to offences that are alleged to have been committed by the applicant between 31 December 2000 and 15 October 2002. In relation to each count, the DPP contends that the applicant submitted a BAS in which he falsely declared his business expenditure to obtain GST refunds to which he was not entitled. The particulars of counts 1-22 assert that the applicant obtained GST refunds totalling $241,686. The particulars of counts 23 and 24 assert that he attempted to obtain GST refunds totalling $74,207.
Administrative penalty and recovery proceedings
By letter of 10 July 2003 the ATO notified the applicant of the relevant shortfall. He was further informed that he had incurred an administrative penalty of $262,590 in relation to the shortfall. As I understood the arguments presented by counsel it is common ground that the penalty had been fixed on the basis that there had been an intentional disregard of the law. Furthermore, it is not in dispute that the applicant incurred liability by reason of conduct upon which counts 1–24 are substantially based.
On 27 August 2003 the Deputy Commissioner of Taxation commenced proceedings in the District Court of South Australia seeking recovery from the applicant of the sum of $546,646.34 inclusive of costs. The amount sought included the GST shortfall, the administrative penalty, general interest charged and other tax liabilities. On 21 October 2003 a default judgment was entered in favour of the Deputy Commissioner in the amount sought.
Following judgment the applicant filed a debtors petition under the Bankruptcy Act1966 (Cth). His bankruptcy came into effect on 1 December 2003. The judgment debt remains unsatisfied.
The arguments
The applicant contends that the administrative penalty and its enforcement by civil proceedings were penal in nature and that he should not be exposed to further punitive proceedings in respect of substantially the same conduct. The applicant accepts that no plea in bar is available because the elements of each of the charged offences are different to the elements of the cause which gave rise to the administrative penalty and subsequent proceedings. However, the applicant submits that the present proceedings ought to be stayed as an abuse of process because they infringe wider principles of double jeopardy.
The DPP contends that the recovery proceedings in relation to the administrative penalty were civil proceedings. No issue of double jeopardy arises because the applicant has not been placed twice in jeopardy of criminal prosecution or punishment. Furthermore, the criminal offences with which the accused is charged are different in important respects from the basis of liability for the administrative penalty.
Consideration of arguments
The applicant’s contention that the administrative penalty was penal in nature accords with the principles expressed by the High Court in Rich v ASIC.[6] In Rich the Court held that an order made under the Corporations Act2001 (Cth) disqualifying a person from acting in the management of a corporation was to be characterised as penal or punitive for the purpose of determining whether the person could claim privilege against exposure to penalty and forfeitures.
[6] (2004) 220 CLR 129
Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ warned against characterising a statutory provision as penal or non penal based on a consideration of whether the proceedings had a protective or punitive purpose. Their Honours said:[7]
[T]he supposed distinction between “punitive” and “protective” proceedings or orders suffers the same difficulties as attempting to classify all proceedings as either civil or criminal. At best, the distinction between “punitive” and “protective” is elusive. That point is readily illustrated when it is recalled that, as McColl JA pointed out, account must be taken in sentencing a criminal offender of the need to protect society, deter both the offender and others, to exact retribution and to promote reform.
[7] (2004) 220 CLR 129 at [32]
Their Honours went on to say:[8]
The question is how should the general principles of the privileges against exposure to penalties and forfeiture find application in the particular circumstances of these proceedings. That inquiry is not assisted by examining why the orders sought in the proceedings might be made or what purposes might be achieved by their making. Rather, attention must be focussed upon the nature of the orders that are sought.
[8] (2004) 220 CLR 129 at [34]
They concluded:[9]
If a disqualification order is made, the person against whom the order is made ceases to be a director, alternate director, or a secretary of a company (s 206A(2)), unless given permission under s 206F or s 206G of the 2001 Act to manage the corporation concerned. The order for disqualification thus causes the person against whom it is made to forfeit any office then held in a corporation and forbids that person from holding office in a corporation for the duration of the disqualification order. Those consequences, whether taken separately or in combination, when inflicted on account of a defendant’s wrongdoing, are penalties. That the penalty is not exacted in the form of a money payment does not deny that conclusion. As the authorities referred to earlier in these reasons reveal, equity’s concern with penalties was never confined to pecuniary penalties. If exposure to loss of office or exposure to dismissal from a police force is exposure to penalty, exposure to a disqualification order is exposure to a penalty.
[9] (2004) 220 CLR 129 at [37]
I accept that the administrative penalty imposed on the applicant and its enforcement in subsequent civil proceedings can be characterised as penal or punitive. But does it follow that the present proceedings expose the applicant to double jeopardy?
It is clear from the judgments of the High Court in Pearce v The Queen,[10] that double jeopardy is a broad concept which is not confined to the pleas in bar and may apply at different stages of criminal proceedings.
[10] (1998) 194 CLR 610
In Pearce the appellant had been charged on indictment with two offences with overlapping elements that arose out of a single incident. The appellant applied for a stay of proceedings on the ground that the indictment was oppressive or an abuse of process by reason of his exposure to double jeopardy. The application was refused. He pleaded guilty to both charges and received concurrent sentences of imprisonment.
The High Court rejected an argument that a plea in bar was available to the appellant because such a plea goes to offences the elements of which are the same, or are included in, the elements for which an accused person has been tried to conviction or acquittal.[11] However, the Court considered that the laying of multiple charges might give rise to an abuse of process though a plea in bar was not available.
[11] (1998) 194 CLR 610 at [18]
McHugh, Hayne and Callinan JJ said:[12]
The expression “double jeopardy” is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be “punished again for the same matter” Further, “double jeopardy” is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.
If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States:
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
[12] (1998) 194 CLR at [9]-[10]
Their Honours went on to say:[13]
Confining the availability of the plea in bar in this way does not deny the existence of the inherent powers of a court to prevent abuse of its process. That there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process is illustrated by Rogers v The Queen.
The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.
[13] (1998) 194 CLR 610 at [29]-[30]. See also Gummow J at [67] and Kirby J at [117]
Similarly, Gummow J observed:[14]
In Australia, concerns with “double jeopardy” have come to be expressed at common law in differing ways by an evolutionary process which has crossed what often in the legal system is a false divide between substance and procedure. Thus, even if a plea in bar is not available, successive prosecutions may be an abuse of process. It should also be accepted that the inclusion of separate counts for what in substance, if not entirely in the form, is the same offence may be an abuse of process. For the reasons given by the other members of the Court, there was no abuse of process here. The decision of the Court of Criminal Appeal to dismiss the appeal against conviction was correct.
However, the principles involved in the notion of “double jeopardy” also apply at the stage of sentencing. They find expression in the rule of practice, “if not a rule of law” against duplication of penalty for what is substantially the same act. (footnotes deleted.)
[14] (1998) 194 CLR 610 at [67]
In the present case, the applicant contends that the principles in Pearce support the stay application. In my view that argument must be rejected. In Pearce, the Court (by majority),[15] ultimately concluded that the prosecution of the appellant for two crimes (with overlapping elements) arising out of the same incident, did not amount to an abuse of process.
[15] Kirby J dissenting
McHugh, Hayne and Callinan JJ said:[16]
The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused’s conduct that could have been charged separately. (my underlining.)
[16] (1998) 194 CLR 610 at [31] See Gummow J at [67]
In the present case, there are important differences between the criminal proceedings and those which resulted in the imposition of the pecuniary penalty, and the subsequent civil proceedings. First, the earlier proceedings, though they had had a penal or punitive quality, remained civil proceedings.[17] As the DPP has argued, this is the first time that the applicant has been exposed to prosecution and punishment for criminal offences. Furthermore, in the civil proceedings proof to the civil standard was sufficient and there was no power to fine or impose a sentence of imprisonment.
[17] See Adler v DPP (2004) 185 FLR 443 at [42]-[43] - Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (2003) 216 CLR 161 per Hayne J at [135] - [139]

Moreover, the elements of each of the criminal offences are different to the elements of the cause that resulted in the imposition of the administrative penalty. The conduct which resulted in the imposition of the pecuniary penalty involved the making of false or misleading statements coupled with an intentional disregard of GST law. Such conduct may amount to an offence under either s29D of the Crimes Act, or s134.2 of the Criminal Code Act, but the elements of the charged offences are different. In particular, in order to prove a breach of s24D of the Crimes Act, the prosecution must prove that the accused intentionally defrauded the Commonwealth. That is that he performed an act which he knew to be dishonest, according to the standards of reasonable and honest people.[18] The test of dishonesty contains both an objective and subjective component. The same requirement exists for offences under s134.2 of the Criminal Code Act.[19]
[18] See Beazley v Steinhardt (1999) 106 A Crim R 21
[19] See s130.2 of the Criminal Code Act
These differences are significant. In my view, it cannot be said in light of the principles expressed in Pearce, that the applicant has been exposed to double jeopardy. I also reject the applicant’s contention that the decision of the High Court in The Queen v Carroll.[20] demonstrates that the material differences in the present case are not a bar to the invocation of principles of double jeopardy.
[20] (2002) 213 CLR 635
Carroll was charged with murder. He was acquitted and later charged with perjury on the basis of his sworn evidence at trial, that he did not kill the victim. The High Court held that the perjury prosecution should have been stayed as an abuse of process. The applicant submitted that Carroll is relevant because “the facts relied upon to prove the perjury were the same facts that were unsuccessfully relied upon to prove the murder, although the elements of the offences of murder and perjury were very different”.[21] This argument must be rejected. The proceedings in Carroll were held to be an abuse because the prosecution effectively sought to try Carroll again on the issue that was central to his trial for murder and thereby controvert the verdict of acquittal.[22] Carroll was quite a different case.[23]
[21] Applicant’s written outline of submissions
[22] (2002) 213 CLR 635 at [35}-[51], [99]-[101], [114] [138]-[147]
[23] See discussion of Carroll in Adler v DPP (2004) 185 FLR 443 per Mason P at [44]-[50]
The applicant’s argument in the present case is similar to one that was rejected by the Court of Appeal (NSW) in Adler v ASIC.[24] In Adler, the appellant was arraigned on an indictment containing five counts of offences under the Corporations Act 2001 (Cth) involving stock market manipulation. The appellant sought a permanent stay of these criminal proceedings on the ground that they were an abuse of process because of exposure to double jeopardy.
[24] (2004) 185 FLR 443
It was submitted that as a result of earlier proceedings brought by the Australian Securities and Investment Commission (ASIC) under the civil penalty provisions of the Corporations Act, the appellant had already been punished for substantially the same conduct. Orders had been made under the civil penalty provisions that the appellant be disqualified from managing corporations for a period of 20 years, that he pay compensation ($7,986,402) and that a pecuniary penalty order for $450,000 be imposed.
Mason P (with whom the other members of the Court agreed) held that the prosecution did not involve an abuse of process, because the criminal offences and proceedings were different in important respects to the causes of action under the civil penalty provisions and the proceedings conducted there under.
After citing the passage in the judgment of McHugh, Hayne and Callinan JJ quoted in [34] of these reasons, Mason P said:[25]
James J held that this passage is not limited in its application to cases in which two or more offences are charged in the same indictment. That happened to be the case in Pearce, but the remarks of McHugh, Hayne and Callinan JJ are not so confined. This is confirmed by their Honours’ reference to the “repeated” prosecution of an offence and their citation of Rogers in the immediately preceding paragraph of their judgment in Pearce. I agree with James J on this matter.
I also agree with James J’s conclusion that there is no abuse of process involved in the launching of this prosecution. 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.
James J also accepted the submissions of the Crown that the civil causes of action and the criminal offences have different purposes. The appellant submits that this observation was irrelevant and wrong.
The reasons of the High Court in Rich v ASIC [2004] HCA 42 caution strongly against drawing conclusions based upon strict and mutually exclusive dichotomies between protective (civil) and punitive (criminal) notions (see per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [30]-[35], per McHugh J at [41], [56]-[58]. See also Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2003] HCA 49, 77 ALJR 1629 at 1649[14]). The context of Rich was different to the present, but the warning is apt, especially since the High Court has concluded that “civil penalty proceedings” that seek disqualification orders under the Corporations Act are to be characterised as “penal” for the purpose of determining whether the defendant can claim the privilege against exposure to penalties and forfeitures in response to an application for discovery. A fortiori, civil proceedings resulting in a penalty, as were the civil proceedings against the appellant. Some of the reasoning of Santow J referable to his final orders made reference to the public protective purpose of those orders (see eg ASIC v Adler (2002) 42 ACSR 80 at 105[80]).
But nothing in Rich casts any doubt on the civil nature of the proceedings brought against the appellant, as held by the Court of Appeal (with special leave to appeal being refused by the High Court) …
…
[25] (2004) 185 FLR 443 [39]-[43]
After analysing the facts in Carroll, Mason P said:[26]
In Carroll, the vice of the perjury indictment lay in its manifest inconsistency with the acquittal of murder. That inconsistency arose because the prosecution based the perjury charge solely upon Carroll’s sworn denial of guilt (see per Gleeson CJ and Hayne J at 649[42]). Examination of the proceedings in the earlier murder trial disclosed that the central issue was whether Carroll had killed the victim, Deirdre Kennedy. Once this emerged, the perjury indictment was revealed as a challenge to that which the law requires to be accepted as incontrovertibly correct, ie the murder acquittal.
On this analysis, Carroll does not assist the appellant. The proceedings before Santow J were not criminal proceedings and the appellant was certainly not “acquitted”. The present charges are in no way inconsistent with the outcome of the earlier proceedings. They represent the first occasion in which the appellant is placed in jeopardy of conviction for a criminal offence.
The judgments in Carroll demonstrate that a number of rules or principles cluster together under the title “double jeopardy” (see esp per Gleeson CJ and Hayne J at 640[9], per Gaudron and Gummow JJ at 660[84], per McHugh J at 673[131]).
But the “double jeopardy” that was the focus of attention throughout the reasons in Carroll was (in Gaudron and Gummow JJ’s words at 660[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 672[128], citing Friedland, Double Jeopardy (1969), pp3-4). As to abuse of process by successive prosecutions, see also Pearce per McHugh, Hayne and Callinan JJ at 620[29] and per Gummow J at 629[67]. This type of jeopardy is simply not involved in the present case, this being the first appellant arising out of the relevant events.
[26] (2004) 185 FLR 443 at [47]-[50]
In my view the reasoning of Mason P applies with equal force to the present case.
There are a number of cases where payment of an administrative penalty has been taken into account on sentence for criminal offences.[27] This line of authority supports the view that there it is not an abuse of process to institute criminal proceedings where such a penalty has been imposed. Of course, as earlier observed, the concept of double jeopardy applies at all stages of criminal proceedings including the sentencing of a convicted person. In cases where an administrative penalty has been imposed the sentencing judge must take that into account to the extent that it is necessary to avoid double punishment.[28]
[27] See for example: R v Whitnall (1993) 68 A Crim R 119; R v Nguyen (1996) 86 A Crim R 521,
[28] See Pearce v The Queen (1998) 194 CLR at [34]-[49];
In any event, in the present case the reality of the situation is that the applicant has not been punished at all for his breach of the GST laws. He has not paid the penalty imposed by the Commissioner or the judgment debt. Furthermore, it cannot be said that the pecuniary penalty imposed by the Commissioner drove him to bankruptcy. As counsel for the applicant conceded on the hearing of the application, the amount of money the applicant owed the ATO was such that he would have gone bankrupt even if no penalty had been imposed.
For these reasons I reject the application for a stay of proceedings in relation to counts 1-24.

R v Elvin (1997) 91 A Crim R 213

Rucioch v Police (2004) 88 SASR 326 per Doyle CJ at [24]-[27], [35]