Citation: Office of State Revenue v El Kazzi (No. 1) [2013] NSWLC 18
Court: Local Court of New South Wales
Date: 12 August 2013
Judge(s): Favretto LCM
Background
The applicant was charged with ten offences arising from her application for a First Home Owner Grant and associated stamp duty exemption on a Liverpool unit. The charges alleged she made false statements about occupying the property as her primary residence, knowing she had not met the continuous six-month residency requirement. Additional charges related to false statements made during the Office of State Revenue's subsequent investigation and to her failure to comply with conditions of the grant and exemption.
Before the criminal proceedings commenced, the OSR had already determined to reverse both concessions and issued penalty notices requiring repayment of the $7,000 grant, the $11,242 stamp duty exemption, and penalty amounts of 60 percent on each sum, totalling $29,186. The applicant paid that amount in full.
The applicant then sought a permanent stay of the criminal proceedings, arguing that having already been subjected to a pecuniary penalty she should not face prosecution, and raising additional grounds concerning alleged prosecutorial abuse during the investigation and the manner in which the charges were framed.
Legal Issues
- Whether the criminal proceedings should be permanently stayed on double jeopardy or "vexing twice" grounds, given the applicant had already paid a pecuniary penalty to the OSR
- Whether the charges under the Crimes Act 1900 were beyond power because the First Home Owners Grant Act 2000 did not contemplate prosecution under that Act
- Whether prosecutorial abuse during the investigation phase justified a permanent stay
- Whether the charges as framed breached prosecutorial fairness principles, including those arising from the Victorian Court of Appeal decision in Joud
Decision
The magistrate refused the permanent stay on all grounds. Applying the well-established principles from Jago v District Court of New South Wales and The Queen v Glennon, the court confirmed that a permanent stay is only available in extreme cases where a fundamental defect exists that a trial judge cannot remedy, and where continuation of proceedings would bring the administration of justice into disrepute.
On the double jeopardy ground, the court found that the payment of a pecuniary penalty under the administrative regime did not bar subsequent criminal prosecution. The court distinguished the administrative penalty from criminal punishment and was not satisfied that subjecting the applicant to both processes amounted to vexing her twice for the same conduct in the relevant legal sense.
On the ground that charges under the Crimes Act 1900 were beyond power, the court was not persuaded that the existence of specific offence provisions in the First Home Owners Grant Act 2000 excluded the operation of broader criminal law provisions. The framing of charges across multiple statutes covering overlapping conduct did not, of itself, constitute an abuse of process or breach the principles in Joud.
On the prosecutorial abuse ground, the court found the applicant had not adduced evidence that the investigation was conducted solely or improperly for the purpose of building a criminal prosecution. The court noted that any alleged breach of investigative powers would need to be established through evidence, with questions of admissibility then addressed at trial. Without such evidence, the ground was not made out.
Orders Made
• The application for a permanent stay is refused.
Key Takeaways
- A permanent stay of proceedings is only granted in extreme or exceptional cases where a fundamental defect cannot be remedied by the trial judge and continuation would bring the administration of justice into disrepute, following Jago and Glennon.
- Payment of an administrative pecuniary penalty imposed by a revenue authority does not, without more, bar subsequent criminal proceedings arising from the same underlying conduct.
- Charging an accused under the Crimes Act 1900 alongside offence provisions in specific regulatory legislation does not automatically constitute an abuse of process or exceed the informant's power.
- Alleged prosecutorial abuse during an investigation must be established by evidence; a court will not grant a permanent stay on the basis of bare assertion that improper investigative methods were used.
- Where admissibility of evidence obtained during an investigation is in question, that issue is ordinarily to be resolved at trial rather than through a pre-trial stay application.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 178BB(1), 192G(b)
- First Home Owners Grant Act 2000 (NSW), ss 20(4), 44(1)(a), 76A(4)
- Oaths Act 1900 (NSW), s 25A
- Taxation Administration Act 1996 (NSW), s 55(a)
- Duties Act 1997 (NSW)
- Australian Crime Commission Act 2002 (Cth)
- Criminal Procedure Act 1986 (NSW)
Cases:
- Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
- The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592
- Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 225 CLR 256
- Walton v Gardiner (1993) 177 CLR 378
- Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129
- Joud & Ors v The Queen [2011] VSCA 158
- Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302
- Elias v The Queen; Issa v The Queen [2013] HCA 31
- Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68
- Hunter v Chief Constable of the West Midlands Police [1982] AC 529