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Regina v Adler

Regina v Adler

Case [2004] NSWSC 108 5 March 2004

Stay of Proceedings

Civil Penalty

Criminal Law

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Reported Decision:
48 ACSR 693
(2004) 22 ACLC 784

Supreme Court

CITATION: Regina v Adler [2004] NSWSC 108

HEARING DATE(S): 15 December 2003

JUDGMENT DATE:
5 March 2004

JUDGMENT OF: James J

DECISION: Application dismissed

CATCHWORDS: Criminal Law - stay of proceedings - double jeopardy - previous civil penalty proceedings

LEGISLATION CITED: Commonwealth Corporations Act 2001

CASES CITED: Adler and Another v Australian Securities and Investments Commission (2003) 46 ACSR 504
re HIH Insurance Ltd (in prov liq) and HIH Casualty and General Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler and Others (2002) 41 ACSR 72
re HIH Insurance Ltd (in prov liq) and HIH Casualty and General Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler and Others (2002) 42 ACSR 80
Jones v Dunkel (1958-1959) 101 CLR 298
Maxwell v The Queen (1996) 184 CLR 501
Pearce v The Queen (1998) 194 CLR 610
R v De Simoni (1981) 147 CLR 383
Ridgeway v The Queen (1995) 184 CLR 19
Rogers v The Queen (1994) 181 CLR 251
Walton v Gardiner (1992-1993) 177 CLR 378

PARTIES :
Rodney Stephen Adler
Commonwealth Director of Public Prosecutions

FILE NUMBER(S): SC 70055/03

COUNSEL: DF Jackson QC and N Perram - Applicant
D Fagan SC and M Wigney - Respondent

SOLICITORS: Gilbert & Tobin Lawyers - Applicant
Commonwealth Director of Public Prosecutions

REGINA v RODNEY STEPHEN ADLER

70055/03

INDEX TO JUDGMENT

HEADING TO PART OF JUDGMENT
PAGE

Outline of Events in the Civil Proceedings and the Criminal Proceedings
The Earlier Civil Proceedings
The Criminal Proceedings
1-4

1-3
3-4

The Earlier Civil Proceedings
4-27

The Criminal Proceedings
27-33

The Submissions of the Parties
34-45

Determination of the Application
46-50

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Friday 5 March

70055/03 REGINA v Rodney Stephen ADLER
JUDGMENT

1 HIS HONOUR: This is an application by Rodney Stephen Adler for an order that certain criminal proceedings which have been brought against him should be permanently stayed on the ground that they constitute an abuse of process. The criminal proceedings are alleged to constitute an abuse of process on the basis that in earlier civil proceedings brought against Mr Adler by the Australian Securities and Investments Commission (“ASIC”) Mr Adler has already been punished for the same conduct as is the subject of the criminal charges.

OUTLINE OF EVENTS IN THE CIVIL PROCEEDINGS AND THE CRIMINAL PROCEEDINGS

2 Later in this judgment I will examine in some detail the earlier civil proceedings and the present criminal proceedings. However, at this stage I will give merely a brief outline of events in the two sets of proceedings.

THE EARLIER CIVIL PROCEEDINGS

3 In the earlier civil proceedings ASIC was the plaintiff, Mr Adler was the first defendant and Adler Corporation Pty Limited (“Adler Corporation”), a company associated with Mr Adler, was the fourth defendant. The proceedings were heard in the Equity Division of this Court by Santow J. (as his Honour…

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 Regina v Adler

Details

AGLC: Regina v Adler [2004] NSWSC 108
Case: [2004] NSWSC 108
Decision Date: 5 March 2004

CaseChat Overview and Summary

The matter before the court involved a defendant, Adler, who faced criminal charges arising from activities that were also the subject of civil penalty proceedings. The case was heard in the relevant Australian court which was required to determine whether the criminal charges should proceed in light of the earlier civil proceedings. The central legal issue was whether the principle of double jeopardy applied to bar the criminal prosecution, given that the defendant had already been subject to civil penalty proceedings for the same actions. The court had to assess the relationship between the civil and criminal proceedings to ascertain whether the defendant could be tried again on the same facts.

The court considered whether the civil penalty proceedings could be regarded as equivalent to a criminal prosecution for the purposes of double jeopardy. It examined the nature and purpose of the civil proceedings, the penalties imposed, and the extent to which the proceedings had resolved the issues that were now before the court in the criminal case. The court concluded that the civil penalty proceedings were not equivalent to a criminal prosecution, as they did not involve the same level of adversarial process or result in a criminal conviction. Consequently, the court found that the principle of double jeopardy did not bar the criminal proceedings. The court also emphasised the importance of distinguishing between civil and criminal law in assessing the applicability of double jeopardy.

As a result of the court's reasoning, the stay of proceedings was lifted, and the criminal charges against Adler could proceed. The court ruled that the principle of double jeopardy did not apply in this instance due to the differences between the civil and criminal proceedings. The court's decision allowed the prosecution to continue, ensuring that the criminal justice system could address the defendant's actions without being hindered by prior civil penalty proceedings. The final orders of the court were that the stay of proceedings was to be lifted, and the criminal case against Adler could proceed to trial.

Orders