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District Court 4 December 2012

R v Tasich (No 2)

[2012] NSWDC 262

Public order & justice offences
CRIMINAL LAW STAY APPLICATION KNOWINGLY GIVE FALSE EVIDENCE TO ICAC HUNG JURY AT FIRST TRIAL QUESTION OF ABUSE OF PROCESS DPP PROSECUTION GUIDELINES

Citation: R v Tasich (No 2) [2012] NSWDC 262
Court: District Court of New South Wales
Date: 4 December 2012
Judge(s): Neilson DCJ

Background

The accused faced three charges of knowingly giving false evidence at a compulsory ICAC examination in September 2007, contrary to s 87(1) of the Independent Commission Against Corruption Act 1988. The charges arose from an ICAC investigation into alleged impropriety at Wollongong City Council, involving development consents and dealings between property developers and council members.

The accused had originally faced a fourth charge of corruptly offering a financial benefit, but at the defence's request the charges were split into separate trials. The bribery charge was heard first, and in November 2011 the accused was acquitted. The subsequent trial on the false evidence charges, before Knox DCJ in June 2012, ended in a hung jury, with the jury unable to reach either a unanimous or majority verdict on any of the three counts.

Following the hung jury, the accused applied twice to the Director of Public Prosecutions (DPP) for a nolle prosequi (a formal discontinuance of the prosecution). The DPP declined both applications and proceeded to list the matter for a second trial on the false evidence charges. The accused then brought a stay application before Neilson DCJ, arguing that continuing the prosecution was unjustifiably oppressive and constituted an abuse of process.

  • Whether the DPP was required to give reasons for refusing a request to enter a nolle prosequi
  • Whether issue estoppel applied so as to bar the retrial following the acquittal on the bribery charge
  • Whether continuing the prosecution amounted to an abuse of process, specifically whether use of the court's procedures was unjustifiably oppressive to the accused
  • Whether the combination of relevant factors, taken together, was sufficient to justify a permanent stay

Decision

Neilson DCJ rejected the application for a permanent stay on all grounds. His Honour confirmed that the DPP is not required to give reasons for refusing a nolle prosequi request, applying the principle that prosecutorial decisions of this kind are not subject to a duty to furnish reasons. The DPP's brief communication that the prosecution would proceed, and the solicitor's telephone explanation that the Crown considered its principal witness to be strong, did not raise any obligation of further explanation.

On issue estoppel, his Honour confirmed that the doctrine applies only narrowly in criminal proceedings. The acquittal on the bribery charge did not estop the Crown from prosecuting the false evidence charges, because the two sets of charges turned on different facts and different elements. A finding that the accused had not corruptly offered a benefit did not necessarily resolve the question of whether he had knowingly given false evidence about his conversations with witnesses.

His Honour applied the principles from Jago v District Court of New South Wales (1989) 168 CLR 23 and Williams v Spautz (1992) 174 CLR 509 in considering the abuse of process argument. The court held that the accused bore a heavy burden of proof and had failed to discharge it. Assessed individually or collectively, the factors relied upon, including the acquittal on the related charge, the hung jury, the delay, the DPP's failure to respond promptly to the nolle prosequi applications, and the prospect of witnesses giving evidence again, did not meet the threshold for a stay.

His Honour observed that protracted proceedings requiring witnesses to give evidence multiple times are not uncommon in either the criminal or civil jurisdiction, and are a regular consequence of retrials ordered by appellate courts. The mere fact that the proceedings had become lengthy did not make their continuation unjustifiably oppressive.

Orders Made

  • The application for a permanent stay of proceedings was refused.
  • The notice of motion filed 20 November 2012 was dismissed.
  • The matter was stood over for directions before the list judge on Friday 7 December 2012.

Key Takeaways

  • The District Court confirmed that the DPP is not required to provide written or oral reasons for declining a request to enter a nolle prosequi, and that the absence of such reasons does not itself constitute an abuse of process.
  • Issue estoppel in criminal proceedings applies only in narrow circumstances. An acquittal on a bribery charge does not automatically preclude a subsequent prosecution for false evidence given in connection with the same factual background, where different elements and different facts are in issue.
  • Under the Jago and Williams v Spautz framework, a permanent stay requires proof that use of the court's procedures is unjustifiably oppressive; the accused bears a heavy onus and mere inconvenience, delay, or the prospect of witnesses testifying repeatedly does not satisfy that test.
  • A hung jury at a first trial does not, of itself, render a retrial an abuse of process or provide grounds for a permanent stay.
  • Delay and the age of the underlying allegations, while relevant considerations, carry insufficient weight on their own, particularly where retrials involving older events and repeated witness testimony are a recognised feature of the criminal justice system.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 249B(2)(a)
- Independent Commission Against Corruption Act 1988 (NSW) s 87(1)

Cases:
- 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