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District Court 15 June 2012

R v Lou TASICH

[2012] NSWDC 96

Public order & justice offences
CRIMINAL LAW PROCEDURE STAY OF PROCEEDINGS ISSUE ESTOPPEL IN CRIMINAL TRIALS ABUSE OF PROCESS JURIES

Citation: R v Lou TASICH [2012] NSWDC 96
Court: District Court of New South Wales
Date: 15 June 2012
Judge(s): Knox SC DCJ

Background

The accused, a property developer, faced three counts of giving false evidence at compulsory examinations before the Independent Commission Against Corruption (ICAC) in September 2007. The allegations concerned statements he made to ICAC that a Wollongong City Council divisional manager had solicited a corrupt benefit from him in connection with a proposed car park development, and that he had reported that solicitation to a local member of parliament and a council councillor.

Before these proceedings, the accused had been tried before a jury on a separate charge: corruptly offering a financial benefit to the same council manager. That trial, which turned on a factual dispute between the accused and the council manager, resulted in an acquittal in November 2011.

At the outset of the current trial, the accused brought a pre-trial motion raising two applications. First, he sought a ruling that the evidence the Crown intended to lead was the subject of issue estoppel, or alternatively that the proceedings should be stayed as an abuse of process. Second, he applied for the trial to proceed before a judge alone rather than a jury.

  • Whether the jury's acquittal in the earlier bribery trial gave rise to an issue estoppel, preventing the Crown from relying on evidence in the current false evidence proceedings
  • Whether, in the absence of a formal issue estoppel, the current proceedings constituted an abuse of process given the overlap in evidence and witnesses
  • Whether the trial should be conducted by a judge alone rather than a jury

Decision

Issue estoppel and abuse of process

The accused argued that the jury's acquittal necessarily implied a finding that the council manager was not credible, and that this implicit credibility finding "merged into the verdict" so as to estop the Crown from relying on him as a witness in the current proceedings. Knox SC DCJ rejected this reasoning. The court found no authority for the proposition that a credibility finding against a Crown witness can be extracted from a jury verdict in earlier proceedings so as to preclude reliance on that same witness in a separate prosecution involving distinct charges and different events.

The court also considered whether the doctrine of issue estoppel applies in criminal proceedings at all. Drawing on the authorities, including Gilham v R and Island Maritime Ltd v Filipowski, the court noted the concept is properly understood in the criminal context as a form of autrefois acquit: the Crown is estopped from re-asserting an accused's guilt on a matter already determined against it. That doctrine did not assist the accused here because the current charges relate to entirely separate conduct, namely, false statements to ICAC, not the bribery alleged in the earlier trial. The abuse of process application, which was framed as an alternative to the estoppel argument, was similarly rejected. Proceeding on the new indictment was not regarded as oppressive simply because some witnesses and evidence overlapped with the earlier proceedings.

Judge alone trial

The accused pressed for a judge alone trial on the basis that the involvement of ICAC and matters of public notoriety would unfairly prejudice him before a jury. Knox SC DCJ declined this application. The court emphasised the long-standing importance of trial by jury as a mode of trial in New South Wales, and noted that the Crown had opposed the application for good reason. The court found that the public interest was positively served by having a jury determine contested allegations involving elected and public officials, as well as disputed conduct before an inquisitorial body such as ICAC. The legitimacy of the criminal justice system, the court reasoned, was reinforced rather than undermined by jury deliberation in such cases.

Orders Made

  • The trial on all counts to proceed before a jury.

Key Takeaways

  • A jury's acquittal does not carry an implicit finding on the credibility of individual witnesses that can be extracted and deployed as an issue estoppel in subsequent proceedings involving separate charges.
  • In the criminal context, issue estoppel operates as a form of autrefois acquit: it prevents the Crown from re-litigating the accused's guilt on a matter already resolved against the prosecution, not from calling witnesses whose credit was contested in earlier proceedings.
  • Overlapping witnesses and evidence between two separate prosecutions does not, without more, render the later proceedings an abuse of process.
  • Allegations involving disputed conduct before ICAC, and credibility contests involving elected officials, were held to be matters particularly suited to jury determination, given the public interest in open resolution of such controversies.
  • Under the Criminal Procedure Act 1986, there is no presumption in favour of jury trial, but the District Court treated the value of jury trial as a weighty consideration not to be displaced lightly, particularly where the Crown opposed a judge alone application.

Legislation and Cases Referenced

Legislation
- Independent Commission Against Corruption Act 1988 (NSW), s 87(1)
- Crimes Act 1900 (NSW), s 249B(2)(a)
- Criminal Procedure Act 1986 (NSW)

Cases
- Gilham v R [2007] NSWCCA 323; (2007) 73 NSWLR 308
- Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328
- Mraz v R (No 2) (1956) 96 CLR 62
- R v Storey (1978) 140 CLR 364
- R v Belghar [2012] NSWCCA 86
- Rogers v R [1994] HCA 42; (1994) 181 CLR 251
- R v GSR [2011] NSWDC 17; (2011) 12 DCLR (NSW) 193