R v Tasich (No 2) - [2012] NSWDC 262

District Court

New South Wales

Medium Neutral Citation: R v Tasich (No 2) [2012] NSWDC 262
Hearing dates: 4 December 2012
Decision date: 04 December 2012
Before: Neilson DCJ
Decision:
Notice of motion dismissed

Catchwords: CRIMINAL LAW - Stay application - Knowingly give false evidence to ICAC - Accused acquitted on separate charge of bribery - Application for stay of proceedings rejected by trial judge - Hung jury at first trial - Crown rejected application for entry of nolle prosequi - Question of requirement to give reasons for accepting or rejecting request for nolle prosequi - Applicability of issue estoppel in criminal proceedings - Question of abuse of process - Whether use of Court's procedures unjustifiably oppressive - DPP Prosecution Guidelines
Legislation Cited: Crimes Act 1900 s 249B(2)(a)
Independent Commission Against Corruption Act 1968 s 87(1)
Cases Cited: Darwich v R [2011] NSWCCA 62
Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
R v Selim [2007] NSWSC 154
R v Seller [2012] NSWSC 934
R v Tasich [2012] NSWDC 96; (2012) DCLR (NSW) 261
Rogers v R (1994) 181 CLR 251
Williams v Spautz (1992) 174 CLR 509
Category: Interlocutory applications
Parties: Regina (Crown)
Lou Tasich (Accused)
Representation: Mr G Corr (Crown)
Mr G Wendler (Defence)

File Number(s): 2009/264101

Judgment

This is an application by the accused for a stay of proceedings. The application for the stay is opposed by the Crown.

It is important to bear in mind the chronology of the matter. In June 2007 the Independent Commission Against Corruption (ICAC) commenced an investigation into allegations of impropriety in the administration of the Wollongong City Council. Those investigations including the giving of development consents for Council property and dealings between property developers and members of the Council.

In September 2007 the accused gave evidence to ICAC. That was at a compulsory Examination. On 3 December 2009 there was the first listing before this Court of charges against the accused arising from the ICAC investigation. There were four charges. The charges included the three on the current indictment and a charge of corruptly offering a financial benefit as an inducement, a charge contrary to s 249B(2)(a) of the Crimes Act 1900. The three charges on the current indictment are of offences contrary to s 87(1) of the Independent Commission Against Corruption Act 1988 (the 'ICAC Act').

On 22 February 2011 the solicitors then acting for the accused wrote to the DPP. The substance of the letter is this:

"You would now be aware that the allegations against our client have now been adjourned for mention at the Sydney District Court on 18 March 2011.

Prior to that date we would ask that the Director of Public Prosecutions consider splitting the indictments [sic] so that there would be two separate trials with respect to the allegations against our client.

It is submitted to you that the Crown ought to bring one indictment for the allegation of 'Corruptly offering a benefit…

Grounds of appeal

[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.

Continue reading R v Tasich (No 2)

Details

AGLC: R v Tasich (No 2) [2012] NSWDC 262
Case: [2012] NSWDC 262
Decision Date: 04 December 2012

CaseChat Overview and Summary

The respondents, Tasich and others, applied to the Supreme Court of New South Wales for a stay of proceedings in relation to charges of knowingly giving false evidence to the Independent Commission Against Corruption (ICAC). The respondents had previously been acquitted of charges of bribery. The application for a stay was rejected by the trial judge, and the Crown rejected an application for entry of nolle prosequi. The matter was heard before the Court of Criminal Appeal, which had to determine several legal issues, including the requirement for the trial judge to give reasons for accepting or rejecting a request for nolle prosequi, the applicability of issue estoppel in criminal proceedings, and whether the use of the Court's procedures was unjustifiably oppressive. The Court also had to consider the Director of Public Prosecutions Prosecution Guidelines.

The Court of Criminal Appeal held that the trial judge was not required to give reasons for rejecting the application for a nolle prosequi. The Court found that the issue of whether the trial judge should have given reasons was not a matter of general public importance, and therefore, did not warrant an appeal. The Court also held that issue estoppel was not applicable in criminal proceedings, and that the use of the Court's procedures was not unjustifiably oppressive. The Court found that the respondents' application for a stay of proceedings was an abuse of process, and that the Crown's rejection of the application for entry of nolle prosequi was not an abuse of process. The Court held that the Director of Public Prosecutions Prosecution Guidelines did not apply to the circumstances of this case.

The Court of Criminal Appeal dismissed the notice of motion and held that the application for a stay of proceedings was an abuse of process. The Court found that the respondents had not established any grounds for the stay of proceedings, and that the trial judge's decision to reject the application for a nolle prosequi was not an abuse of process. The Court held that the Director of Public Prosecutions Prosecution Guidelines did not apply to the circumstances of this case. The Court found that the use of the Court's procedures was not unjustifiably oppressive, and that the respondents' application for a stay of proceedings was an abuse of process. The Court held that the respondents were not entitled to a stay of proceedings, and that the notice of motion was dismissed.

Orders

Orders of the court

Notice of motion dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Tasich (No 2) [2012] NSWDC 262
Hearing dates:	4 December 2012
Decision date:	04 December 2012
Before:	Neilson DCJ
Decision:	Notice of motion dismissed
Catchwords:	CRIMINAL LAW - Stay application - Knowingly give false evidence to ICAC - Accused acquitted on separate charge of bribery - Application for stay of proceedings rejected by trial judge - Hung jury at first trial - Crown rejected application for entry of nolle prosequi - Question of requirement to give reasons for accepting or rejecting request for nolle prosequi - Applicability of issue estoppel in criminal proceedings - Question of abuse of process - Whether use of Court's procedures unjustifiably oppressive - DPP Prosecution Guidelines
Legislation Cited:	Crimes Act 1900 s 249B(2)(a) Independent Commission Against Corruption Act 1968 s 87(1)
Cases Cited:	Darwich v R [2011] NSWCCA 62 Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 R v Selim [2007] NSWSC 154 R v Seller [2012] NSWSC 934 R v Tasich [2012] NSWDC 96; (2012) DCLR (NSW) 261 Rogers v R (1994) 181 CLR 251 Williams v Spautz (1992) 174 CLR 509
Category:	Interlocutory applications
Parties:	Regina (Crown) Lou Tasich (Accused)
Representation:	Mr G Corr (Crown) Mr G Wendler (Defence)
File Number(s):	2009/264101