Citation: R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068
Court: Supreme Court of New South Wales
Date: 11 August 2014
Judge(s): Beech-Jones J
Background
Two accused faced a six-count indictment arising from an alleged scheme to derive income free of tax through false deductions, and then to receive and dissipate that income through concealment. Count 1 charged both accused with conspiracy to dishonestly cause a loss or risk of loss to the Commonwealth (under s 135.4(5) of the Criminal Code Act (Cth)), centred on claims for false Division 40 depreciation expenses in tax returns filed between 2007 and 2010. Count 6 charged both accused with conspiracy to commit a money laundering offence (under ss 11.5(1) and 400.3(1) of the Code), relating to the receipt and dissipation of income derived from the same scheme.
One accused filed a notice of motion seeking a stay of count 6, arguing that it raised no different criminality from count 1 and that proceeding on both counts simultaneously amounted to an abuse of process. Argument was heard when the matter was called on for trial and, at the conclusion of submissions, Beech-Jones J dismissed the stay application. These are his published reasons.
Legal Issues
- Whether prosecuting an accused on two conspiracy counts, where one count's predicate offence feeds into the other, constitutes an abuse of process as amounting to double punishment or double prosecution.
- Whether the elements of count 6 (money laundering conspiracy) disclosed any criminality separate and distinct from count 1 (tax fraud conspiracy), such that proceeding on both was not an abuse.
- What principles govern the application of sentencing cases on double punishment to a pre-trial stay application on abuse of process grounds.
Decision
Issue 1: The correct legal test for abuse of process in this context
Beech-Jones J noted that most of the authorities relied on by the accused were sentencing decisions expressing concern about overcharging, not rulings that a prosecution was itself an abuse of process (at [21]). His Honour held that care must be taken in translating sentencing discussions of double punishment into the different question of whether there is an abuse of process through double prosecution (at [21]). The relevant principle, drawn from Pearce v R and confirmed in Delaney v R, is that an abuse will arise only where no element of the further offence is separate and distinct from the predicate offence, and that some overlap between offences does not, without more, constitute an abuse (at [26]).
Issue 2: Whether counts 1 and 6 disclosed separate criminality
The court found that the two conspiracies addressed distinct aspects of the alleged scheme: count 1 concerned an agreement to pursue a finance arrangement using false deductions to eliminate a tax liability, while count 6 concerned the receipt and dissipation of the resulting income through concealment (at [19]). Although one area of overlap existed, in that count 6 depended partly on the proceeds of the offence alleged in count 1, that overlap did not exhaust the elements of count 6 (at [16], [26]). The Crown alleged significant further criminality in the formation and execution of the money laundering conspiracy beyond anything encompassed by count 1 (at [28]).
Issue 3: The significance of both charges being conspiracies
Beech-Jones J acknowledged that in some cases the "agreement" underlying two conspiracy charges might be the same agreement, though directed to different objects under the Code, which could in principle constitute two different conspiracies (at [27]). The Crown submitted the two conspiracies involved two entirely separate agreements. His Honour found it unnecessary to resolve that question definitively, because even on the assumption of a single agreement the offences retained different elements, and the outcome was the same: no abuse of process (at [27]).
Orders Made
- Application for stay of count 6 is refused.
Key Takeaways
-
An abuse of process arises from prosecuting an accused on two overlapping charges only where the further offence contains no element that is separate and distinct from the predicate offence; some degree of overlap between charges is insufficient on its own to warrant a stay (at [26]).
-
Sentencing authorities that disapprove of double punishment through overcharging do not translate directly into a conclusion that the prosecution itself is an abuse of process; those are different legal questions governed by different principles (at [21]).
-
Where a money laundering conspiracy charge depends partly on the proceeds of a co-charged tax fraud conspiracy, that dependency creates overlap but does not mean the two counts raise identical criminality, particularly where the laundering count involves distinct overt acts relating to the receipt and concealment of funds (at [16], [19], [28]).
-
The Supreme Court applied Pearce v R and Delaney v R to confirm that neither offence need be wholly included in the other; provided each offence contains at least one element not shared with the other, simultaneous prosecution is not an abuse (at [26]-[27]).
-
Prosecuting both a predicate offence and a related money laundering offence on the same indictment may more accurately reflect the full scope of the alleged criminality, rather than representing impermissible double punishment (at [26]).
Legislation and Cases Referenced
Legislation
- - Copyright Act 1968 (Cth), s 135ASB, s 135ASC
- - Crimes Act 1900 (NSW), s 33, s 99, s 110, s 193B
- - Criminal Code Act (Cth), s 11.5, s 130.3, s 135.1, s 135.4, s 400.3, s 400.1, s 400.2, s 400.6
Cases
- - Delaney v R; R v Delaney [2013] NSWCCA 150
- - Nahlous v R [2010] NSWCCA 58; 77 NSWLR 463
- - Pearce v R [1998] HCA 57; 194 CLR 610
- - Peters v R [1998] HCA 7; 192 CLR 493
- - R v Ghosh [1982] QB 1053
- - Redfern v R [2012] NSWCCA 178; 228 A Crim R 56
- - Schembri v R [2010] NSWCCA 149
- - Thorn v R [2009] NSWCCA 294; 198 A Crim R 135