Citation: Calleija v Regina [2012] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 22 March 2012
Judge(s): Beazley JA (with R A Hulme J and Garling J agreeing)
Background
The appellant faced two charges of defrauding the Commonwealth through a tax deduction scheme allegedly operated between 1997 and 2006. The scheme involved his company, and centred on falsely inflated tax deductions and the disguising of income as overseas loans. The accountants who introduced and managed the scheme were the alleged architects of the arrangement.
Following an ATO audit, the appellant voluntarily approached the Australian Federal Police in June 2006, made three induced statements, paid all outstanding tax plus interest and penalties (requiring the sale of his home), and offered cooperation in a broader investigation. Despite this, he was not charged until October 2009, and the indictment was not filed until February 2011.
The appellant applied for a permanent stay of the prosecution on the basis that the proceedings constituted an abuse of process. The application was refused by Frearson DCJ in the District Court in August 2011, and the appellant sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.
Legal Issues
- Whether the prosecution constituted an abuse of process such that the proceedings amounted to an affront to the public conscience, warranting a permanent stay
- Whether the indictment was bad for duplicity
- Whether the Crown had used the appellant's induced statements in a derivative manner
- Whether the delay in bringing the prosecution caused oppression and undue hardship sufficient to ground a permanent stay
- Whether the Commonwealth Prosecution Guidelines had not been fairly adhered to
- Whether new material (an AFP briefing paper dated November 2005) should be admitted on appeal and, if so, whether it affected the outcome
Decision
Beazley JA granted leave to appeal but dismissed the appeal in full, with R A Hulme J and Garling J agreeing. The Court confirmed that a permanent stay is an exceptional remedy, available only where the continuation of proceedings would constitute an affront to the public conscience or bring the administration of justice into disrepute. The mere fact that a prosecution appeared unfair to the accused, or that the accused had cooperated and suffered hardship, was not sufficient to meet that threshold.
On the issue of induced statements, the Court found no established derivative use of those statements by the Crown. The prosecution case relied on evidence from sources independent of, or subsequent to, the appellant's cooperation with the AFP. No abuse of process was made out on this ground.
On delay, the Court accepted that a period of over three years passed between the appellant's cooperation and the laying of charges, and that this delay had caused real hardship. However, the Court was not persuaded that the delay was so oppressive, or the overall conduct so unconscionable, as to require the extraordinary remedy of a permanent stay. The appellant's grievance, expressed as a complaint that the Crown was pursuing him rather than the accountants who were the alleged masterminds of the scheme, was characterised as a legitimate concern but not one that elevated the case to the exceptional category demanding a stay.
The application to introduce new material in the form of an AFP briefing paper was also refused. The Court found that the document did not add anything not already before the primary judge, and therefore could not have affected the outcome of the stay application.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A permanent stay of criminal proceedings is an exceptional remedy, granted only where the continuation of a prosecution would constitute an affront to the public conscience or bring the administration of justice into disrepute; hardship and perceived unfairness alone do not meet this threshold.
- The Court of Criminal Appeal confirmed that an accused's voluntary cooperation with authorities, payment of tax debts, and financial sacrifice, while relevant to the stay application, are not determinative factors justifying a permanent stay.
- Where an accused has made induced statements to investigators, a permanent stay on the basis of derivative use of those statements requires clear evidence that the Crown's case depends, directly or indirectly, on material derived from those statements rather than from independent sources.
- Delay between an accused's cooperation with investigators and the laying of charges may constitute oppression, but will only support a permanent stay if the delay is of a character that makes continuation of the proceedings truly unconscionable in the exceptional sense required by law.
- New material sought to be introduced on an interlocutory appeal must demonstrate something not already before the primary judge; material that merely repeats or reinforces existing arguments will not be admitted.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1914 (Cth), s 29D
- Criminal Code Act 1995 (Cth), s 135.1(3)
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
- House v R [1936] HCA 40; 55 CLR 499
- Moti v The Queen [2011] HCA 50; 283 ALR 393
- R v Edwards & Anor [2009] HCA 20; 255 ALR 399
- Dupas v The Queen [2010] HCA 20; 241 CLR 237
- R v King [2003] NSWCCA 399; 59 NSWLR 472
- Darwiche v R [2011] NSWCCA 62
- Petroulias v R [2007] NSWCCA 154; 176 A Crim R 302
- R (Cth) v Petroulias (No. 1) [2006] NSWSC 788; 177 A Crim R 153
- R v Glennon [1992] HCA 16; 173 CLR 592
- Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
- Mackay v R [1977] HCA 22; 136 CLR 465
- Moevao v Department of Labour (1980) 1 NZLR 464