Ground Five: prosecutorial responsibility to fairly frame charges
19As these the submissions on these grounds are inextricably intertwined because of fact or principle it is appropriate to deal with them together. The applicant's primary submission is that "No one should be vexed twice if it be proved to the court that it is for one and the same cause": Pearce per Kirby J at [89] (but see the translated footnote [116]), and in doing so the court should adopt a broad approach: Joud at [112] and [141].
20The applicant submits she is now twice vexed by the current proceedings because the decision of the OSR in laying the ten CANs exposes her to double jeopardy in circumstances where she has already suffered a penalty for her offending behaviour, namely the imposition of $10,944 in penalties. Now, some four years later, to be submitted to criminal proceedings for the same dishonest behaviour for which she has already been punished amounts to an abuse of process. The double jeopardy, the applicant argues, arises from the investigation under s 34 of the FHOG Act by the OSR, and subsequent determination under s 45(2) by the Chief Commissioner that she had acted with "dishonesty". The Chief Commissioner then imposed a penalty equivalent to 60 percent of the dishonestly obtained grant of $7,000 ($4,200) and stamp duty exemption of $11,242 ($6,744). Those penalties were in addition to the requirement the repay the grant and pay the stamp duty. It is not submitted that the requirement to repay the grant or pay the stamp duty is a penalty or that she is being twice vexed on that account. It should be noted and the applicant in her submissions has made no reference to ss 26 and 27 of the Taxation Administration Act 1996, which are the relevant provision for the imposition of the stamp duty penalty. These provisions are discussed below.
21The crux of the applicant's twice vexed submission is that the finding by the Chief Commissioner that she acted "dishonestly" (s 45(2)) is given statutory effect by a certificate under s 4 (2) and is binding on the court as an incontrovertible fact that she acted "dishonestly". The applicant submits that the s 48(2) certificate has statutory force in court proceedings, such that it assumes elements of finality, similar to a curial decision, or at the very least, a finding of fact of dishonesty and punishment that the Court cannot exclude, reject or seek to go behind when dealing with proceedings for offences against the FHOG Act. Section 45 of the FHOG Act provides:
45 Power to require repayment and impose penalty
(1) The Chief Commissioner may, by written notice, require an applicant (or former applicant) for a first home owner grant to repay an amount paid on the application if:
(a) the amount was paid in error, or
(b) the Chief Commissioner reverses the decision under which the amount was paid for any other reason.
(2) If, as a result of an applicant's dishonesty, an amount is paid by way of a first home owner grant, the Chief Commissioner may, by the notice in which repayment is required or a separate notice, impose a penalty not exceeding the amount the applicant is required to repay.
...
48 Evidence
(1) A certificate signed by the Chief Commissioner stating that a first home owner grant was paid to a person named in the certificate on a specified date is admissible in legal proceedings as evidence of the payment.
(2) A copy of a notice issued by the Chief Commissioner imposing a penalty under this Act is admissible in legal proceedings as evidence of the imposition of the penalty.
(3) A copy of a notice issued by the Chief Commissioner requiring the payment or repayment of a specified amount is admissible in legal proceedings as evidence:
(a) that the requirement was made, and
(b) that the amount specified in the notice was outstanding at the date of the notice.
22If the interpretation of s 48(2) is to the effect of the applicant's submission that the court is bound to accept the Chief Commissioner's finding of "dishonesty" in determining the relevant charged offences then potentially a constitutional issue arises under s 75B of the Judiciary Act 1901 (Cth) to the extent it offends Chapter III of the Constitution: South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1. The court need not decide that issue as the OSR has given an undertaking that it will not tender the s 48(2) certificate in the hearing on whether the charged offences are proved, although it reserves the right to tender that certificate (and properly so to the applicant's benefit) in any sentence proceedings. Without needing to determine the issue of the effect of the s 48(2) certificate it may well be argued that, as a matter of statutory construction, all the s 48(2) certificate does is to make admissible in any proceedings (for example civil proceedings to recover the penalties as a "debt due to the Crown" (s 46(1)(b), (5)) the fact, and no more, that it is "evidence of the imposition of a penalty" but not the finding of conduct; c.f. R v Adler at [124]. For the reasons that follow, the court finds that "dishonesty" is not an element of conduct that needs to be proved for the s178BB offences.
23While the applicant has made no reference to the nature of the stamp duty penalty, the court will proceed on the basis that she relies upon a similar double jeopardy argument for the Commissioner's decision to impose a penalty for the stamp duty as a finding was made that her conduct " was caused wholly or partly by the intentional disregard" (s 27(2)), given that the penalty was fixed at 60 percent. Sections 26 and 27 of the Taxation Administration Act 1996 provide:
26 Penalty tax in respect of certain tax defaults
(1) If a tax default occurs, the taxpayer is liable to pay penalty tax in addition to the amount of tax unpaid.
(2) Penalty tax imposed under this Division is in addition to interest.
(3) Penalty tax is not payable in respect of a tax default that consists of a failure to pay:
(a) interest under Division 1, or
(b) penalty tax previously imposed under this Division.
27 Amount of penalty tax
(1) The amount of penalty tax payable in respect of a tax default is 25% of the amount of tax unpaid, subject to this Division.
(2) The Chief Commissioner may increase the amount of penalty tax payable in respect of a tax default to 75% of the amount of tax unpaid if the Chief Commissioner is satisfied that the tax default was caused wholly or partly by the intentional disregard by the taxpayer (or a person acting on behalf of the taxpayer) of a taxation law.
(3) The Chief Commissioner may determine that no penalty tax is payable in respect of a tax default if the Chief Commissioner is satisfied that:
(a) the taxpayer (or a person acting on behalf of the taxpayer) took reasonable care to comply with the taxation law, or
(b) the tax default occurred solely because of circumstances beyond the taxpayer's control (or if a person acted on behalf of the taxpayer, because of circumstances beyond either the person's or the taxpayer's control) but not amounting to financial incapacity.
24The applicant submits, which the OSR accepts, that the decision of the Chief Commissioner to impose the penalties was "penal in nature": c.f. R v Adler at [10]; Philpot v Chief Commissioner of State Revenue (RD) [2008] NSWADT 176; Calcaro v Chief Commissioner of State Revenue [2004] NSWADT 158. However, the OSR submits that the appropriate characteristic in each case is that the imposition of the penalties was civil in nature and the fact that the penalties have been imposed is properly to be taken into account at the sentencing stage. The court accepts the applicant's submission that the imposition of the penalties is still relevant as the recent trend of authority is not to make a formal distinction between a civil or criminal penalty. Rather, the focus is on the purpose of the penalty, including punishment for the offending conduct and while civil penalties are protective in nature they can include elements of retribution, deterrence, reformation, mitigation, contrition and the protection of the public in determining the relevant civil penalty: see Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; 216 CLR 161 per Hayne J at [114] and [119]; Kirby J at [64] and [67]; Rich v Australian Securities and investments Commission [2004] HCA 42; 220 CLR 129 per Gleeson CJ, Gummow, Hayne and Heydon JJ at [21]-[22], [35] and [37]; McHugh J at [41], [51]-[52], and [56].
The critical issue in this matter is whether the current proceedings expose the applicant to being twice vexed for the same dishonest behaviour in the true sense of double jeopardy at the prosecution stage. If the applicant is not twice vexed it does not dispose of the applicant's contention that she is being twice punished within the meaning of the Pearce principles, or that the proceedings are otherwise an abuse of process because of oppression or the conduct of the prosecutor: c.f. R v Adler at [125] and [127] (although the Court notes that the FHOG Act does not contain an equivalent provision to s 1317 of the Corporations Act 2001 (Cth)).
25The applicant submits the court should have regard to the following matters which she says would have been considerations before the Executive in assessing the punishment extracted by the s 45(2) penalties and to now be the subjected to criminal proceedings for the same amounts to an abuse of process because she is being twice vexed within the meaning of Pearce:
(a) A young woman of 21 years age subject to a lengthy investigation by the OSR. This investigation included being subjected to numerous telephone calls about her affairs, questions asked of her of a private manner.
(b)She was subject to the requirement to produce documents at the request of authorized officers on pain of punishment
(c)After a lengthy investigation, the Commissioner made a finding pursuant to s 45(2) of the FHOG Act that she had obtained her grant dishonestly.
(d)This finding is authorized by law and is in effect a declaration of dishonesty by the State against the applicant and is given statutory force and admissibility in court proceedings.
(e)It manifests itself against the appellant as she made no application to have the finding reviewed and so the finding remains unchallenged.
(f)The finding was within power and expressly permitted to be made pursuant to the extraordinary power granted to the Commissioner.
(g)The finding contains at its heart that she obtained her grant dishonestly and was not entitled to it. This is the same gravamen of the dishonesty offences preferred by the OSR.
(h)The Commissioner, having considered that dishonesty was involved imposed a penalty which was up to 60% of the value of the grant.
(i)This amount was paid by the applicant.
(j)The applicant also paid back the FHOG.
(k)The penalty was by way of a fine and not by way of a tax.
(l)The Commissioner was provided with wide discretion to impose a penalty taking into account matters that are typical to punishing offenders in NSW.
(m)The principles that the Commissioner had regard to when punishing the offender included the level of culpability, deterrence, the deliberateness of her actions, her prior character.
(n)These are all principles of punishment and considerations that are found in s 21A of the Crimes (Sentencing Procedure) Act.
(o)The characterization of the penalty as civil/fine, is a mere formality and is not determinative of the true character of the penalty imposed.
(p)The applicant has in effect being found guilty of a dishonest offence, declared dishonest and punished applying the ordinary sentencing principles that this court would be well familiar with.
(q)The process of authorized investigation through to a declaration of dishonesty has been mandated by Parliament as the way that offenders under this legislation are to be dealt with.
(r)She has been punished for the same offending behaviour that is encompassed in the CANs. [emphasis added]
(s)The breadth of the offending behaviour, described as "dishonesty obtaining the benefit" is broad enough to cover most of the CAN's that are before the Court in relation to the offences against the FHOG Act.
(t)Subject to a finding by the executive of dishonest conduct that led to the granting of a FHOG in circumstances where she was not entitled to that grant as a result of the investigation.
(u)To subject her to the further prosecution, costs, stress, harassment and vexing for the same conduct for which she has been punished, is an abuse of process and exposes her to double jeopardy." [emphasis added]
26The prosecutor responds that it is entitled to frame its charges as it sees fit so long as there are elements of each charge that, while overlapping, are different in each case, and any prejudice is to be dealt with at the sentencing stage consistent with the Pearce principles. The prosecutor further submits that the applicant's reliance upon Joud is misplaced to the extent she seeks to circumvent the Pearce principles by suggesting this court should adopt a broad approach.
27In Joud the accused, who had earlier been convicted of substantive terrorism offences, were then tried for conspiracy to do acts in preparation of terrorist acts. The trial judge refused an application for a permanent stay but on appeal the Victorian Court of Appeal, while not itself re-determining the stay application but remitting it back to the trial judge, held that the trial judge had erred because he gave too much weight to the proposed reduction in the evidence the Crown proposed to call at the conspiracy trial and did not adequately consider the other matters which had to be taken into account (at [143]). The Court of Appeal identified those other matters as delay, oppressive conditions of incarceration, pre-trial publicity and the effect of prosecution choices relating to the indictment, and together with the decision to separately try the accused meant that the proceedings ought to be stayed as an abuse (at [140]-[141]).
28However, the Court of Appeal accepted that, standing alone, the trial judge was correct in rejecting the stay application on the basis that the appellant's were subject to double jeopardy (at [107] and [110]-[113]). The Court of Appeal, while distinguishing Pearce because in that case there was but a single trial, nevertheless accepted at [107], per Neave JA with Ashley and Weinberg JJ agreeing, that "Pearce is authority for the principle that a prosecution will not be stayed simply because an offender has been charged with more than one offence arising out of the same conduct", and the prosecutor submits that is the very case before this court. The Court of Appeal then went on to consider the issue of oppression, and the prosecutor submits that none of the other matters the Court of Appeal identified (at [134]) exist in this matter.