Dickson v Commonwealth; Dickson v Director of Public Prosecutions (Commonwealth)

HIS HONOUR: The plaintiff, Mr Anthony James Dickson, has brought two proceedings in this Court. The first was commenced by Summons (file number 2021/00165929) and seeks declarations that his conviction and sentence in this Court before Beech-Jones J (as his Honour then was) are “void” (“the Declarations Proceeding”). The second was commenced by a Statement of Claim (file number 2021/00165953) and seeks declarations that the trial and sentence decisions are “void” and “inconsistent with the Australian Constitution”, that he “be acquitted”, the convictions “be quashed”, a “verdict of acquittal be entered” and orders for damages totalling $840,000,000 (“the Damages Proceeding”). The Commonwealth of Australia and Commonwealth Director of Public Prosecutions (“CDPP”) are the defendants in the Declarations Proceeding and Damages Proceeding, respectively. (For simplicity, I will refer to both defendants as simply “the defendants” or “the Commonwealth”).

The matter that was listed before me concern two Notices of Motion (“the Notices of Motion”) filed on 3 June 2022 by the defendants seeking to dismiss the Summons and Statement of Claim pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or in the inherent jurisdiction of this Court. In the alternative, the Commonwealth seeks that the Statement of Claim in the Damages Proceeding be struck out pursuant to r 14.28 of the UCPR.

The plaintiff was found guilty on 22 December 2014 following a trial before Beech-Jones J (as his Honour then was) and a jury of 12 in this Court. He was convicted of two offences: the first offence was tax fraud conspiracy under s 135.4(5) of the Criminal Code Act 1995 (Cth) (“Criminal Code”) and the second being money laundering conspiracy under ss 11.5(1) and 400.3(1) of the Criminal Code (“the trial decision”).

On the 20 March 2015, Beech-Jones J sentenced the plaintiff to imprisonment for seven years and six months for tax fraud conspiracy, commencing 20 December 2014, and nine years for money laundering conspiracy, commencing 22 December 2016, with a single non-parole period of seven years expiring on 21 December 2021.

The offences were sophisticated and complex but a broad summary of the offences follows. First, the tax fraud conspiracy charge involved the plaintiff and a co-conspirator agreeing to cause a company called NueMedix Health Australasia Pty Ltd (“NHA”), of which the plaintiff and his co-conspirator were directors, to make false depreciation claims in tax returns of many hundreds of millions of dollars: R v Antony James Dickson (No 18) [2015] NSWSC 268 at [9] (“Dickson (No 18)”). As a consequence of the false depreciation claims, no tax debt would arise in favour of the Commonwealth.

Secondly, the plaintiff was convicted of a money laundering charge, where he and his co-conspirator agreed to deal with the proceeds of crime, namely, the amounts derived from the tax fraud conspiracy held across several different bank accounts that represented cash distributions from the trusts to NHA. These funds were, in turn, distributed to various offshore accounts controlled by entities associated with the plaintiff and then repatriated to Australia, largely for the plaintiff and his co-conspirator’s benefit: Dickson (No 18) at [10].

Without delving into the complex yet strong circumstantial evidence adduced by the Commonwealth Crown, it was established beyond reasonable doubt that the plaintiff’s use of false identities was an aspect of his modus operandi in carrying out both of the conspiracies: Dickson (No 18) at [34].

It was accepted by the plaintiff that the total amount payable for three to five years under the assignment agreements by NHA was approximately $450 million. It was found in Dickson (No 18) at [74]-[76] that it was intended to apply that entire amount in false deductions to offset declared income. The extent of the intended loss, or risk of loss, was 30 per cent of this figure, being approximately $135 million.

In Dickson (No 18) at [82], it was found that “loss” in the Criminal Code relevantly includes a loss to the Commonwealth if it does not get property that it would otherwise be owed, namely a tax debt owed by NHA.

The object of the conspiracy was to claim false tax deductions to avoid raising a tax debt in favour of the Commonwealth. Despite this, the completion of the conspiracy was frustrated by authorities. It was held in Dickson (No 18) at [85] that, even if NHA were able to obtain amended tax assessments, the estimated temporary loss to the Commonwealth would still remain in excess of $100 million. An attack on these findings form part of the plaintiff’s submissions for the present proceedings.

The plaintiff appealed against his convictions and the Crown appealed the sentence.

On 10 June 2016, the Court of Criminal Appeal in Dickson v R [2016] NSWCCA 105 dismissed the plaintiff’s conviction appeal and upheld the Crown’s sentence appeal. The plaintiff was resentenced to imprisonment for nine years, commencing 22 December 2014, for the tax fraud conspiracy and twelve years for the money laundering conspiracy with a single non-parole period of nine years and three months expiring 21 March 2024 (“the 2016 decision”).

On 30 June 2016, the plaintiff applied to the High Court for special leave to appeal against the Court of Criminal Appeal’s Decision. Bell and Keane JJ refused special leave on 16 December 2016.

The plaintiff is currently serving his sentence imposed by the New South Wales Court of Criminal Appeal.

On 20 November 2017, the plaintiff made an application to the Court of Criminal Appeal to re-open its decision from 2016, raising a further 30 grounds of appeal against his conviction and 13 grounds against his sentence. He also submitted to the Court of Criminal Appeal that it had failed to determine ground 7 of his original appeal.

On 27 August 2018, the Court of Criminal Appeal dismissed this application in Dickson v R (No 2) [2018] NSWCCA 183 on the basis it had no jurisdiction (“the August 2018 decision”).

On 10 September 2018, the plaintiff made an application to set aside the Court of Criminal Appeal’s decision of 27 August 2018 and re-open the decision of 30 June 2016. This application was dismissed by the Court of Criminal Appeal in Dickson v R (No 3) [2018] NSWCCA 242 on 26 October 2018 (“the October 2018 decision”).

On 5 March 2019, the plaintiff sought special leave to appeal from both the August and October 2018 decisions from the Court of Criminal Appeal. Nettle and Gordon JJ refused special leave on 12 June 2019.

The plaintiff unsuccessfully attempted to re-open the Court of Criminal Appeal decision of 30 June 2016 by writing to the Registrar of this Court.

By Summons filed in this Court on 3 June 2021, the plaintiff sought declaratory relief, which included:

By way of Statement of Claim, also filed on 3 June 2021, the plaintiff sought damages and further sought:

The defendant in both proceedings was the Commonwealth after an amendment to the Statement of Claim brought in the Commonwealth as a defendant.

On 8 November 2021, the defendants filed the Notices of Motion, seeking the dismissal of both the Summons and the Statement of Claim, pursuant to r 13.4(1) of the UCPR or in the inherent jurisdiction of the Court, and costs. In the alternative, it was sought for the proceedings to be struck out pursuant to r 14.28 of the UCPR or the inherent jurisdiction of the Court.

Mr Dickson relied on the following evidence in support of the Summons and the Notices of Motion:

He also relied upon the outline of submissions in support of the Summons dated 15 February 2021.

In support of the Statement of Claim, Mr Dickson relied on the evidence adduced in support of the Summons, furthermore, he produced:

In support of the Notices of Motion, the defendants relied on the:

In response to the Notices of Motion, Mr Dickson relied on the written submissions dated 14 March 2022.

In support of the Summons, the plaintiff relied on his Plaintiff’s February Affidavit, where he deposed the facts, matters and circumstances which he asserted should have been found by the jury at trial, all of which led to a wrongful conviction. This affidavit challenged the findings made in the trial decision and Dickson (No 18).

In essence, the plaintiff’s evidence and submissions in support of the Summons aimed to reagitate issues which had already been decided. In summary, Mr Dickson contended:

Mr Dickson’s submissions attempted to raise numerous matters of law and fact to ultimately assert that he was wrongly convicted and submitted that his “trial was fundamentally unfair” and his “conviction is unconstitutional”.

Mr Dickson’s Statement of Claim was also filed on 3 June 2021 and to a large extent, repeated his affidavit and submissions in the Summons. In summary, he contended:

On 18 October 2021, the plaintiff filed a Notice of a Constitutional Matter pursuant to s 78B of the Judiciary Act. The s 78B Notice alleged that this Court did not have jurisdiction to determine offences because only the Federal Commissioner of Taxation is empowered to do so. This is because this Court did not exercise judicial power, but rather exercised a hypothetical opinion, contrary to the independence and integrity of the Supreme Court. It also breached the separation of powers, sought to make a binding decision on the Federal Commissioner of Taxation who was not a party, and was invalid pursuant to s 109.

He reiterated his contention that the CDPP had stringent obligations which it failed to meet. He asserted that the fraud on the Court, was that the prosecution communicated a false and incomplete case to the Court. As the Crown had supressed seized documents, the trial was not fair in accordance with s 80 of the Australian Constitution, requiring that the trial be held by jury.

In oral submissions on 25 March 2022, Mr Dickson contended:

As mentioned, on 12 April 2022, Mr Dickson filed an Amended Statement of Claim, after the hearing for these proceedings took place. It is unnecessary to consider the Amended Summons separately as the conclusions reached on the Notice of Motion with respect to the damage’s proceedings would have equal force in that respect.

On 8 November 2021, the Commonwealth filed the Notices of Motion. The dismissal of both of the plaintiff’s proceedings were sought on the basis that this Court lacks jurisdiction; the proceedings were frivolous or vexatious; that no reasonable cause of action is disclosed; or the proceedings are an abuse of process.

In oral submissions on 25 March 2022, the Commonwealth provided three bases for which the Court should dismiss or strike out the proceedings, in accordance with the Notices of Motion:

The Commonwealth also addressed Mr Dickson’s claim of constitutional invalidity. On 29 July 2021, the Australian Government Solicitor’s Constitutional Litigation Unit sent a letter to Mr Dickson to advise that the Commonwealth Attorney General would not be intervening in the proceedings.

In oral submissions on 25 March 2022, the Commonwealth relied on State of New South Wales v Kable (1996) 189 CLR 51 at [31] where it was held that “all Courts, whether superior or inferior, have the authority to decide whether a claim that is made in the Court is within its jurisdiction”.

In response to the Notices of Motion, Mr Dickson made the following oral submissions:

Rule 13.4 of the UCPR provides:

In Hassan v Sydney Local Health District [2022] NSWSC 954, I summarised the relevant principles at [73]-[83] as follows:

Contrary to the plaintiff’s beliefs, the current proceedings do not present an opportunity to reagitate issues which have already been decided. Rather, they are an opportunity to respond to the Notices of Motion to dismiss or strike out his Summons and Statement of Claim.

In reviewing the evidence adduced by Mr Dickson, what has become most apparent, is the failure to engage with the issues raised squarely by the Notice of Motion. His submissions substantially repeat the evidence and argument adduced from the trial decision and in subsequent appeals.

His attempts to introduce new factual propositions must also be rejected. Mr Dickson had a statutory right to raise these issues in the trial, in his appeal to the Court of Criminal Appeal and in the special leave applications in the High Court (and application to re-open). Not only are these proposed factual circumstances not consonant with the findings made by the jury in the trial decision, but these contentions were absent from any of the evidence or submissions adduced at the later proceedings.

The contention of Mr Dickson, that the Commonwealth failed to disclose documents has little or no prospects for success on two bases. First, this can be explained, at least in part, by the fact that the plaintiff withdrew his subpoena requesting documents: R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595 (Beech-Jones J) at [21] (“Dickson (No 12)”).

Secondly, Mr Dickson contended their preclusion at trial severely disadvantaged him. The primary issue with this contention is that the plaintiff made an informed forensic decision about how he wished to run his case at trial and provided clear instructions to his senior counsel.

The plaintiffs’ difficulties are further illustrated by the history and circumstances of the late disclosure of documents at the plaintiff’s criminal trial as described in the Commonwealth’s submissions:

As to the plaintiff’s objection to the summing up of the trial judge, in the plaintiff’s 2016 appeal to the Court of Criminal Appeal, he agreed that the “trial judge had provided a comprehensive summary of the evidentiary basis by which the jury had found the appellant guilty”. The Court of Criminal Appeal also confirmed in its 2016 proceedings the trial judge’s summary was a “succinct account of the complex arrangements which lay at the heart of the Crown’s Case” in its 2016 decision at [8]. Specifically addressing his Honour’s findings about the temporary delay in obtaining tax debt, the Court of Criminal Appeal held at [162]-[163] that there was no error in those findings.

In relation to the Summons, Mr Dickson focused upon the elements of the offences charged and the need for the prosecution to prove underpayment of tax and the relationship with his constitutional invalidity point. I will return to those issues below.

The plaintiff asserted that facts, matters and circumstances which should have been (and were not) found by the jury at his trial led to his “wrongful conviction”. In the Statement of Claim, he contends that this “wrongful conviction” entitled him to an award of damages and exemplary damages.

The plaintiff’s claims amount to a collateral attack because, on the case that he puts to this Court, it is necessary to review and determine the validity of an administrative or judicial act in order for him to succeed in the grant of declaratory relief or damages. (For relevant principles and issues relating to the mounting of a collateral attack, see Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association [2022] NSWSC 1178.)

The collateral attack on his convictions and sentences follows from both a jury trial in this Court and the Court of Criminal Appeal’s dismissal of his conviction appeal. In circumstances where special leave to appeal to the High Court was refused, the plaintiff avenues for appeal are well and truly exhausted.

It is an abuse of process to seek to impugn his convictions which were already determined. The attempt to circumvent the established statutory framework for criminal appeals brings the administration of justice into disrepute.

In Hunter v Chief Constable of West Midlands [1982] AC 529, Lord Diplock (with whom Lord Russell of Killowen, Lord Keith of Kinkel, Lord Roskill and Lord Brandon of Oakbrook agreeing) held at 541:

In Reichel v Magrath (1889) 14 App Cas 665, Lord Halsbury LC stated at 668:

In PFC v New South Wales [2015] NSWSC 1507 (which was not disturbed on appeal by the Court of Appeal), Fagan J observed at [17]:

In my view, both proceedings bring the administration of justice into disrepute because the plaintiff is mounting a collateral attack against his convictions by means of a civil action in relation to a decision that has been finally reached by the trial court and on appeal in the criminal jurisdiction and in relation to which the plaintiff had full opportunity to contest matters. Allowing a collateral challenge to a criminal conviction would convert civil actions to a “de facto avenue of appeal outside the carefully constructed statutory framework of criminal appeals”: Quail v Gibson [2021] FCA 1115 at [28] (Abraham J) (“Quail”). The impact of a successful collateral challenge “would be destructive of public confidence in the administration of justice” because “there may be two conflicting decisions from proceedings, which would have been conducted under different circumstances”: at Quail at [26] (Abraham J).

It can be observed that both the Declarations and Damages Proceedings are based on a successful collateral attack. If no collateral attack is available or it fails on the merits, the plaintiff would not be entitled to any relief on the case that he has pled.

In my view, the collateral attack amounts to an abuse of process. On this matter alone, the proceedings initiated by the plaintiff must be dismissed. However, I have also considered some of the issues raised by the defendants.

The Commonwealth contended, to the extent that the plaintiff asserted that the judicial proceedings involved his trial and sentence were beyond the jurisdiction of the Supreme Court and accordingly his convictions and sentence were, as variously referred to in the declaratory proceedings and the damages proceedings, void or invalid and that the Court should quash them, he appeared to invoke the Courts supervisory judicial review jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW).

There is substance in the description of the plaintiff’s causes of action in this respect just as there is substance in the contentions made by the Commonwealth in answer.

It is well established that this Court cannot issue prerogative writs to itself: see Re v Jarman; Ex Parte Cook (No 1) (1997) 188 CLR 595 at 601, 604; Kirk v Industrial Court of NSW (2010) 239 CLR 531 at [98].

The Commonwealth also correctly submitted, in my view, that even though the plaintiff sought to impeach is convictions and sentences following a trial by jury in this Court, the operative orders were those in the Criminal Court of Appeal in the same jurisdiction. As the Commonwealth submitted, the incongruity is demonstrated by the fact that the plaintiff would need to join the body responsible for the decision as a defendant: see r 59.4(3) UCPR and Singh v State of NSW; Singh v Lekhwar [2021] NSWCA 260 at [11] (Leeming JA).

To the extent that Mr Dickson’s submissions acted to the propositions I have summarised above, then it may be concluded that the proceedings brought extend beyond the power of this Court of a supervisory nature. However, it is unnecessary to decide this matter as I have resolved the issues raised by the Notices of Motion on other bases.

I next turn specifically to the declaratory relief sought, as distinct from other relief in these proceedings. Mr Dickson primarily seeks declaratory relief; however, declarations do not create rights capable of enforcement and cannot be stayed. In essence, the plaintiff seeks relief which does not ameliorate the grievances he mounts in his proceedings.

Whilst superior courts have an inherent power to grant declaratory relief, it remains a “discretionary power which is neither possible nor desirable to fetter”: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 (Gibbs J, as his Honour then was).

In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582, Mason CJ, Dawson, Toohey and Gaudron JJ explained that the discretion to grant declaratory relief is “confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions”. Consequent of this, the party seeking a declaration must have a “real interest”.

As iterated in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, Gaudron J observed at [52]:

In Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 (“Aussie Airlines”), Lockhart J (with whom Spender and Cooper JJ agreed) said at 414:

The 2016 decision of the Court of Criminal Appeal “holds the field” and is now the basis on which the plaintiff is sentenced. In the result, the declaratory relief in this case does not have utility for the plaintiff. In my view, the plaintiff has no prospects of success in receiving declaratory relief.

Further, I do not consider that there is novelty in the issues raised by the declaratory proceedings or the damages proceedings as might provide a stronger basis for Mr Dickson resisting a Notice of Motion.

I agree with the Commonwealth that the plaintiff’s claims of fraud do not rise above mere assertion. The argument that the decisions of this Court and the Court of Criminal Appeal were procured by fraud has no basis and to entertain such an argument without a basis in evidence would bring the proper administration of justice into disrepute.

It would seem the plaintiff contends that there is a breach of a prosecutor’s “duty” of disclosure. This much was dealt with by Allsop ACJ (as his Honour then was) and Basten JA in Re Application of Potier [2012] NSWCA 222 at [30]-[31] as follows:

In Nguyen v The Queen (2020) 269 CLR 299, Kiefel CJ, Bell, Gageler, Keane and Gordon JJ stated at [35], in relation to the discretion of the prosecutor to determine what evidence will be called, that:

The issues as to a prosecutor’s “duty” of disclosure or the calling of evidence are ones within the realm of the trial court and any appellate court in relation to that proceeding. It is not for this Court, in a civil proceeding, to question or review the prosecutor’s exercise of its discretion or duty.

Further, I consider there is no reasonable cause of action in this case because the plaintiff had expressly instructed his senior counsel, reflected in submissions on two occasions, that he did not seek a discharge of the jury in respect of the late disclosure. This was recorded in Dickson (No 12) at [3]. This aspect of the has, therefore, no prospects for success.

The plaintiff’s constitutional claim can also be described as hopeless. The plaintiff did not advance how there was a conflict between a State law and a Commonwealth law such as to attract the operation of s 109 of the Constitution. In any case, to the extent that such an inconsistency could be established, the Commonwealth law would prevail to the extent of that inconsistency. I fail to see how s 109 of the Constitution can be engaged in a way that would invalidate (or, more properly, make inoperative) the relevant provisions of the Criminal Code or Crimes Act such that the plaintiff’s convictions could be “void”.

The suggestion that this Court can or cannot determine issues as to whether income tax has been underpaid or not is misconceived. The jury and the Court was determining whether the plaintiff was guilty of a Commonwealth criminal offence. This Court is invested with jurisdiction under the Judiciary Act to conduct a trial with respect to an offence against the laws of the Commonwealth. There is no basis to attack the Court’s exercise of power in this respect.

Further, the plaintiff’s claims that there was a separation of powers or that this Court could not apply taxation legislation is fundamentally flawed for two primary reasons:

Further, to the extent that the plaintiff is seeking claims for malicious prosecution, this is unavailable as the criminal proceedings did not terminate in the plaintiff’s favour: A v New South Wales (2007) 230 CLR 500 at [1] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).

In my view, the plaintiff’s claims do not amount to a reasonable cause of action. They are misconceived and are an abuse of process.

To the extent that the CDPP has breached some duty of disclosure, I am satisfied that the damages could not be awarded because the CDPP is provided statutory immunity pursuant to s 32A of the Director of Public Prosecutions Act 1983 (Cth). Subsection (1) provides:

I agree with the defendants that it is groundless to assert that the CDPP or staff employed by her did not act in good faith. The frank disclosure of the material in open Court during the trial (albeit only on day 51) was done in good faith. The statutory immunity would preclude any damages being awarded against the CDPP in the Damages Proceeding.

Ultimately, the contentions made by the plaintiff are wholly without merit and misconceived in their response to the Notices of Motion. The proceedings initiated by the plaintiff are an abuse of process. They are productive of unjustified trouble or harassment. I am satisfied that the defendant has demonstrated that there is a high degree of certainty that the ultimate outcome of the proceeding would be that the plaintiff’s claims would be dismissed. It is so obviously untenable that the claims cannot succeed. In these circumstances, both the Declarations and Damages Proceedings must be dismissed.

In relation to the proceedings commenced by Summons (2021/00165729, the Court makes the following orders:

In relation to the proceedings commenced by Statement of Claim (2021/00165953), Court makes the following orders: