R v Dickson; R v Issakidis (No 1)

1. [1]

   On 29 July 2014 Anthony John Dickson filed a notice of motion. Prayer 1 sought a stay of count 6 of the indictment. Prayer 2 of the notice of motion sought the exclusion of all evidence said to support count 6.

2. [2]

   On 4 August 2014 Mr Dickson and his co-accused, Michael John Issakidis, were arraigned before a jury was empanelled. Argument then proceeded in respect of the relief sought in prayer 1 of Mr Dickson’s notice of motion. Submissions continued into the following day. At the conclusion of argument I dismissed prayer 1. I stated that I would publish reasons at a later date. These are my reasons for so ordering.

3. [3]

   The indictment contains six counts. Count 1 charges each accused with an offence contrary to s 135.4(5) of the Schedule to the Criminal Code Act (Cth) (the “Code”) namely that:

4. [4]

   Counts 2 to 5 of the indictment each charge Mr Dickson with an offence under s 135.1(5) of the Code. They are alternative counts to charge 1.

5. [5]

   Count 6 charges each of Mr Dickson and Mr Issakidis with a conspiracy under s 11.5(1) of the Code to commit an offence under s 400.3(1), namely that:

6. [6]

   The written submissions lodged on behalf of Mr Dickson contended that a stay was warranted on a number of bases. However in oral argument Senior Counsel for Mr Dickson, Mr Gross QC, confirmed that the sole basis upon which a stay of count 6 was sought was that it was an abuse of process because, properly analysed, it was said not to raise any different allegation of criminality to that the subject of count 1.

Background

1. [7]

   To address Mr Gross QC’s contention it is necessary to describe the Crown case. Pursuant to directions given by the Court, the Crown filed a detailed statement of facts. For present purposes it is only necessary to refer to the introduction, which sets out an overview of at least some aspects of the Crown case’s concerning the events which happened in furtherance of the conspiracies the subject of counts 1 and 6:

2. [8]

   In addition it should also be noted that the Crown’s statement of facts sets out the detail of a series of steps said to have been taken by the accused to effect the purchase of the intellectual property by Athena from offshore entities referred to in [4] of the above extract. Apparently the transaction documents suggest that the cost of the acquisition was substantial. Material concerning those transactions and valuations said to support to support the alleged acquisition cost was provided to the Australian Taxation Office in support of the returns noted in the above extract. Broadly, the Crown contends that these offshore entities were controlled by the accused, that the purchase price paid was effectively a sham and the valuations were bogus. The Crown contends that the income from the leasing arrangement referred to in [1] of the extract was transferred to entities controlled by the accused in circumstances that involved some subterfuge.

Count 1

1. [9]

   As noted, this count charged each accused with an offence under s 135.4(5) of the Code, which provides:

2. [10]

   Further, s 135.4(9) provides:

3. [11]

   The course of argument concerning prayer 1 referred to, but did not seek any definitive resolution by the Court of, the elements of an offence under this section and the matters that the Crown must otherwise prove. It suffices to note that the reference to the “thing” in s 135.4(9)(b) appears to be a reference to “dishonestly caus[ing] a loss, or to dishonestly caus[ing] a risk of loss, to a third person” as referred to in s 135.4(5)(a) of the Code. I say “appears” at this stage because the Crown has provided a document concerning this offence which refers to the accused intending “that an offence would be committed pursuant to the agreement”. This appears to be derived from s 11.5(2)(b) of the Code. Otherwise I note that “dishonest” is defined in s 130.3 of the Code in terms that correspond to the test stated in R v Ghosh [1982] QB 1053 (cf Peters v R [1998] HCA 7; 192 CLR 493).

4. [12]

   At the request of the Court the Crown produced a particulars document setting out the critical particulars of count 1. Thus the scope of the alleged conspiracy was defined as follows:

5. [13]

   Further, the document identified that the accused intended to cause a loss or risk of loss to the Commonwealth by reason of Neumedix being assessed for taxation purposes in the 2007 to 2010 years on the basis of substantial losses derived by deducting the Division 40 depreciation expenses referred to in (d) of the above extract. It is also stated that the relevant state of mind of each accused said to meet the definition of “dishonest” in s 130.3 of the Code (and “dishonestly” in s 135.4(5)(a)) is their alleged knowledge that Neumedix was ineligible to claim the Division 40 depreciation expenses. The particulars also specifies fifty-seven overt acts in furtherance of the conspiracy.

Ground 6

1. [14]

   Sections 11.5 and 400.3 of the Code relevantly provide:

2. [15]

   The phrase “proceeds of crime” is defined in s 400.1 and the phrase “deals with money” is defined in s 400.2. They respectively provide:

3. [16]

   Again the argument touched upon the elements of count 6 and the other matters the Crown must prove but, in the absence of fuller argument, it is not appropriate to address them. It suffices to state that the Crown has repeatedly stated that the basis upon which the proposed dealings, the subject of this count, involved or would involve the “proceeds of crime” was that the relevant property, being the proceeds of various bank accounts, was to be “wholly or partly derived or realised, directly or indirectly” from an offence namely, count 1. Thus, on any view, there is an overlap between counts 1 and 6.

4. [17]

   The Crown has also provided particulars of this count. The scope of the conspiracy was described as follows:

5. [18]

   It can be seen that each of these matters appears to fall within the definition of “deals with money or other property” in s 400.2. The particulars document also specified thirty three overt acts of this count. Some, but not many, of the overt acts overlap with the overt acts specified in relation to the first count.

6. [19]

   A comparison of the scope of the two conspiracies as described in [12] and [17] reveals that each conspiracy deals with a separate aspect of the overall scheme that it is alleged was put in place by the accused, namely an agreement to pursue a finance deal to derive income which was not to be subject to taxation because it would be offset by false deductions (count 1) and the receipt and dissipation of that income by various means that included concealment (count 6). While the events and evidence concerning those two features are undoubtedly related, and even overlap, if established, they appear to involve different criminality.

7. [20]

   Mr Gross QC submitted that count 6 was an abuse of process because it was only seeking to punish Mr Dickson for an agreement to deal with funds, in circumstances where such dealing was “necessarily or inherently involved in giving effect to the agreement” that is the subject of count 1 (transcript 4/08/2014 at p 14). In his oral and written submissions he referred to a number of decisions of the Court of Criminal Appeal expressing concern about the prosecution of offenders for both a predicate and money laundering offence, where the criminality involved in the money laundering offence is encompassed by the predicate offence (eg Thorn v R [2009] NSWCCA 294; 198 A Crim R 135 at [27] to [31]; Nahlous v R [2010] NSWCCA 58; 77 NSWLR 463 at [15] to [16] (“Nahlous”); and Schembri v R [2010] NSWCCA 149 at [11] to [16]; and Redfern v R [2012] NSWCCA 178; 228 A Crim R 56 at [17]).

8. [21]

   All of these decisions were sentencing decisions. Care needs to be taken in taking discussions of double punishment in a sentencing context and applying them to a consideration of whether there is an attempt at double prosecution (Pearce v R [1998] HCA 57; 191 CLR 610 at [15] per McHugh, Hayne and Callinan JJ) (“Pearce”). Thus, with one exception, the disapprobation in these cases of the overcharging involved did not state that what had occurred was an abuse of process. The one exception was Nahlous where an offender was sentenced for selling “decoders” contrary to ss 135ASB(1) and 135ASC(1) of the Copyright Act 1968 (Cth), and then a money laundering offence under s 400.6(1) of the Code for dealing with the proceeds of those sales.

9. [22]

   In Nahlous the Court stated (at [16] to [17]):

10. [23]

    The Crown Prosecutor submitted that the scope of the two conspiracies in this case was such that the elements of each were not encompassed by the criminality of the other. The Crown referred to Pearce. In Pearce the offender pleaded guilty to charges under s 33 and s 110 of the Crimes Act 1900 (NSW), both of which had, as an element of the offence, the infliction of grievous bodily harm. The charges arose out of a course of criminal conduct involving the infliction of grievous bodily harm upon the one victim. At [28] to [32], McHugh, Hayne and Callinan JJ discussed the availability of a plea in bar and stay as an abuse of process, stating:

11. [24]

    It can be seen from [29] their Honours accepted there are cases where a plea in bar is not available, yet a stay may be granted. However, such cases are relatively rare and it was not suggested that this was one.

12. [25]

    An example of the application of Pearce in a context similar to the present is Delaney v R [2013] NSWCCA 150 (“Delaney”). In Delaney, Hoeben CJ at CL (with whom Harrison J and I agreed) held that there was no abuse of process in prosecuting the appellant for demand money with menaces in company contrary to s 99(2) of the Crimes Act 1900, and dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 where the relevant dealing was receiving monies yielded as a consequence of the demand (at [31] to [39]). Relying on the above passage from Pearce, Hoeben CJ at CL noted that the elements of the two offences were different and that “[n]either offence is wholly included in the other” (at [36]). Delaney was not a case involving “repeated prosecutions” or any other circumstance that might fall within Pearce at [29].

13. [26]

    The discussion in Nahlous referred to an abuse of process arising if there was no “separate act of criminality that warranted a separate charge and a separate penalty”. As this passage was stated to be consistent with Pearce, I do not understand the concept of “act of criminality” as used in Nahlous to be different to elements of the offence. Thus this analysis leads to a conclusion that an abuse of process will occur in such cases where there is no element of the further offence which is separate and distinct from the predicate offence. However, if there is some element of overlap, even if not of a substantial nature, then without more it will not amount to an abuse of process. To the contrary, to conclude otherwise may result in the charges laid not fully reflecting the criminality of the conduct said to have been engaged in.

14. [27]

    I have already described in [16 ] above one area of overlap between the elements of the two offences. However it follows from the above discussion that one area of overlap does not lead to the conclusion that there is an abuse of process. An additional and potentially complicating feature of this case compared to the cases relied on by Mr Gross QC is that this case involves two conspiracies rather than two substantive offences. It maybe that, in a particular case of which this is one, that the “agreement” referred to in s 11.5(2)(a) and s 135.4(9)(a) of the Code may be the same agreement, although it could embrace the objects in s 11.5(2)(b) and s 135.4(9)(b) so as to constitute two different conspiracies. The Crown Prosecutor disclaimed that in this case. He submitted that the Crown case is that there are two different agreements. However, even if there was only one agreement, it still means that there are different elements to the offences notwithstanding there is some overlap as well. Consistent with Pearce, the outcome is that there is no abuse of process.

15. [28]

    For the sake of completeness I note that, even if the reference in Nahlous to “a separate act of criminality”, was not a reference to the elements of the offence but instead concerned some wider concept of criminality, it would not assist Mr Dickson. It is evident from the discussion at [19] that the Crown alleges significant further criminality in the formation and execution of the conspiracy the subject of count 6 compared to count 1.

16. [29]

    It was for these reasons that I dismissed prayer 1 of Mr Dickson’s notice of motion on 5 August 2014.