• the offences charged under s999 require proof of dissemination of information that is false in a material particular, likely to induce others to purchase securities, and knowledge of falsity. None of these matters had to be established in the civil proceedings.
34 The appellant does not dispute these matters. The nub of his complaint is that Santow J nevertheless found all facts sufficient to engage the criminal provisions now invoked by the DPP, such findings being within the particulars accompanying the statement of claim in the civil proceedings (see generally the Court of Appeal reasons at [607]-[613]).
35 As James J records in pars [76] and [109] of his reasons, it was common ground that the conduct alleged in the criminal proceedings was the same, in part, as the conduct alleged and found in the civil proceedings. Reference may briefly be made to pars [214]-[265] in the reasons of Giles JA in the Court of Appeal summarising the findings of Santow J as to the appellant's purpose in maintaining or stabilising HIH's share price when he procured the share purchases on 15, 16 and 19 June 2000. If these findings were made by a jury according to the criminal standard then the Crown case on the first three counts relating to stock market manipulation would be substantially proved.
36 Similarly, Santow J made findings that, if proved to the criminal standard, would satisfy the core elements of the s999 counts (false or misleading statements in relation to securities) (see Giles JA at [228]-[233] of the Court of Appeal reasons, read with the findings about the true source of the money applied by the appellant in the share purchases).
37 Santow J had regard to these matters in determining what remedies were appropriate (see ASIC v Adler (2002) 42 ACSR 80 at 99[57]-[58]).
38 This however is not a case involving repeated prosecutions. In that area, there may be an abuse of process by successive prosecutions even where the accused raises no plea in bar (Rogers v The Queen (1994) 181 CLR 251, Pearce at 620[29]). Nevertheless, in a passage from Pearce cited by the primary judge at [98], McHugh, Hayne and Callinan JJ held (at 620[30]-31]):
(30) The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.
(31) There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni (1981) 147 CLR 383, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately.
39 James J held (at [116]) that this passage is not limited in its application to cases in which two or more offences are charged in the same indictment. That happened to be the case in Pearce, but the remarks of McHugh, Hayne and Callinan JJ are not so confined. This is confirmed by their Honours' reference to the "repeated" prosecution of an offence and their citation of Rogers in the immediately preceding paragraph of their judgment in Pearce. I agree with James J on this matter.
40 I also agree with James J's conclusion (at [112]ff) that there is no abuse of process involved in the launching of this prosecution. The criminal offences are different in important respects from all of the causes of action in the civil proceedings. The findings and orders made by Santow J were based on the civil standard of proof. There is no attempt to eclipse or challenge a prior acquittal (contrast Carroll). If the appellant is acquitted, this would not be inconsistent with the orders made by Santow J, having regard inter alia to the different standards of proof.
41 James J also accepted (at [113]) the submissions of the Crown that the civil causes of action and the criminal offences have different purposes. The appellant submits that this observation was irrelevant and wrong.
42 The reasons of the High Court in Rich v ASIC [2004] HCA 42 caution strongly against drawing conclusions based upon strict and mutually exclusive dichotomies between protective (civil) and punitive (criminal) notions (see per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [30]-[35], per McHugh J at [41], [56]-[58]. See also Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2003] HCA 49, 77 ALJR 1629 at 1649[14]). The context of Rich was different to the present, but the warning is apt, especially since the High Court has concluded that "civil penalty proceedings" that seek disqualification orders under the Corporations Act are to be characterised as "penal" for the purpose of determining whether the defendant can claim the privilege against exposure to penalties and forfeitures in response to an application for discovery. A fortiori, civil proceedings resulting in a penalty, as were the civil proceedings against the appellant. Some of the reasoning of Santow J referable to his final orders made reference to the public protective purpose of those orders (see eg ASIC v Adler (2002) 42 ACSR 80 at 105[80]).
43 But nothing in Rich casts any doubt on the civil nature of the proceedings brought against the appellant, as held by the Court of Appeal (with special leave to appeal being refused by the High Court). Nor is the correctness of the orders under appeal undermined by James J's observations relating to the purposes of the civil and criminal proceedings.
44 Carroll, on which the appellant placed great reliance, is distinguishable on several fronts. I would accordingly reject the appellant's submission that there is a tension between the reasons of McHugh, Hayne and Callinan JJ in Pearce and the reasoning of the High Court in Carroll.
45 In Carroll, a man was acquitted of murder and subsequently charged with perjury. The alleged perjury was his sworn evidence at trial that he had not killed the victim. The High Court held that the perjury indictment was an abuse of process that should have been stayed by the trial judge. It was an abuse because the prosecution had sought to controvert the acquittal on the charge of murder given that the charge of perjury raised the same ultimate issue as had been raised in the murder trial.
46 The present appellant argued that Carroll was in point in that it established that substantial differences between two charges (murder and perjury) did not preclude a stay to prevent double jeopardy. So much may be accepted, but Carroll remains a significantly different case to the present one.
47 In Carroll, the vice of the perjury indictment lay in its manifest inconsistency with the acquittal of murder. That inconsistency arose because the prosecution based the perjury charge solely upon Carroll's sworn denial of guilt (see per Gleeson CJ and Hayne J at 649[42]). Examination of the proceedings in the earlier murder trial disclosed that the central issue was whether Carroll had killed the victim, Deirdre Kennedy. Once this emerged, the perjury indictment was revealed as a challenge to that which the law requires to be accepted as incontrovertibly correct, ie the murder acquittal.
48 On this analysis, Carroll does not assist the appellant. The proceedings before Santow J were not criminal proceedings and the appellant was certainly not "acquitted". The present charges are in no way inconsistent with the outcome of the earlier proceedings. They represent the first occasion in which the appellant is placed in jeopardy of conviction for a criminal offence.
49 The judgments in Carroll demonstrate that a number of rules or principles cluster together under the title "double jeopardy" (see esp per Gleeson CJ and Hayne J at 640[9], per Gaudron and Gummow JJ at 660[84], per McHugh J at 673[131]).
50 But the "double jeopardy" that was the focus of attention throughout the reasons in Carroll was (in Gaudron and Gummow JJ's words at 660[84]) "placing an individual twice in jeopardy of criminal punishment for the one incident or series of events". Similarly, McHugh J referred to the main rationale of the principle of double jeopardy as "prevent[ing] the unwarranted harassment of the accused by multiple prosecutions" (at 672[128], citing Friedland, Double Jeopardy (1969), pp3-4). As to abuse of process by successive prosecutions, see also Pearce per McHugh, Hayne and Callinan JJ at 620[29] and per Gummow J at 629[67]. This type of jeopardy is simply not involved in the present case, this being the first and only prosecution of the appellant arising out of the relevant events.
51 In these circumstances, it is unnecessary to resolve the issue raised as to the scope of s1317P and the constitutional challenge dependent on a conclusion that the section precludes the granting of a stay in circumstances such as the present. I recognise that this approach involves ignoring a statutory signpost which (on the Crown submission, with which I am inclined to agree) directly addresses the issue debated in the appeal.
52 Where Parliament has entered a field and expressed its view clearly then there is no point in harkening back to the antecedent common law. But there are two reasons why it is appropriate to defer embarking upon the s1317P issues. First, if (as I think likely) the section has the wider scope contended for by the Crown, in that it is not open to a court to find an abuse of process arising directly out of that which Parliament has authorised (cf Grills v The Queen PJE v The Queen (1996) 70 ALJR 905), it would still remain for the Court to determine whether an abuse of process is involved in the mere commencement and prosecution of the present indictment. Without such a conclusion the constitutional argument lacks all content. I have concluded that no abuse of process is involved.
53 Secondly, there is the general principle that a court should avoid embarking upon questions of constitutional validity of a statute if a dispute may be resolved by addressing alternative arguments (see Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 642). This principle should be applied with rigour in a case such as the present where the appellant has developed his constitutional argument in a very broad-brush way. The submissions barely rose above contesting the policy of s1317P and invoking the ultimately circular argument that it is beyond the power of the Commonwealth Parliament to authorise the Executive to commit an abuse of process.
54 Accordingly, I propose that leave to appeal be granted but that the appeal should be dismissed.
55 GROVE J: I agree with Mason P.
56 BARR J: I agree with Mason P.