DISTRICT COURT OF QUEENSLAND

1. [1]
   Mr Christoffelsz is in custody for disobeying court orders about arrangements for the care and residency of his daughter. During two periods he failed to return her to her mother as required and actively concealed both his and her identity and their whereabouts. As a consequence, he is serving concurrent terms of imprisonment for six offences under s 112AP of the Family Law Act 1975 (Cth) (FLA).

2. [2]
   He is now before the District Court charged that he operated an account in a false name, an offence under s 24(2) of the Financial Transactions Reports Act 1988 (Cth) (the FTRA offence). He applied for an order to quash the indictment. At the hearing leave was granted to amend the application for alternative relief by way of an order to permanently stay the indictment. Mr Christoffelsz says he has already been punished for that conduct.

3. [3]
   One of the FLA counts charged that Mr Christoffelsz deliberately evaded police detection in breach of an order made for the recovery of his daughter (the FLA offence). One aspect of the evidence relied upon to prove that count was evidence which established he operated a bank account in a false name. The same evidence is relied upon to prove the FTRA offence.

4. [4]
   A six month term of imprisonment was imposed for that FLA offence. Mr Christoffelsz was taken into custody on 26 April 2007. No remission was available on that sentence and he served it in full. It expired on 26 October 2007.  Mr Christoffelsz remains in custody serving the balance of a 12 month concurrent term imposed for one of the other FLA offences.

5. [5]
   Broadly speaking, this application raises the principles of double jeopardy both at common law and as encapsulated in s 4C of the Crimes Act 1914 (Cth).  In summary, relying on either s 4C or common law principles, Mr Christoffelsz argues the indictment should be quashed because it exposes him to being twice punished for the act of operating a false bank account.  Alternatively, relying on common law principles, he argues that the indictment should be stayed in the circumstances of this case.

6. [6]
   The Crown’s position is that the FTRA indictment offends neither s 4C nor any common law principle and that there is no abuse of process which justifies a stay of the indictment. Further, it argues exposure to double punishment will be adequately addressed by a careful sentencing process.

Section 4C

7. [7]
   It is common ground that the section can apply to the FLA and the FTRA offences. I am satisfied that s 112AP(2) of the FLA creates an offence and that Mr Christoffelsz has been punished for that offence, as those terms are used in s 4C. The dispute between the parties is whether the respective FLA and the FTRA offences are constituted by “the same act or omission”. 

8. [8]
   Putting aside the dispute about whether the same act or omission constitutes the offences, there is a question about what relief flows from its application. It is clear that s 4C prohibits double punishment. It is not so clear that it prohibits double prosecution. That question is relevant to whether the section can render an indictment bad at law and support an order to quash the indictment. There is a preliminary question, therefore, of what relief is available if s 4C applies. If an order to quash the indictment is not available, then resort must be had to common law principles for that relief.

Common law principles

9. [9]
   Both parties relied on the judgment of His Honour Justice Kirby in Pearce v The Queen as providing a comprehensive and accurate summary of the current state of the common law in Australia on the principles of double jeopardy.  Their dispute is about the application of those principles to this case.  In essence, Mr Christoffelsz argues that the indictment should be quashed as an impermissible double prosecution of the same conduct. He does not rely on a plea or autrefois convict.  Rather he relies upon a wider principle, derived from Wemyss v Hopkins, dealing with different offences but the same or substantially the same set of facts. The Crown argues the Wemyss principle either has not been adopted in recent judgments in Australia or has been confined such that it does not assist Mr Christoffelsz. The Crown concedes that the double jeopardy principles would need to be applied at the sentencing stage but argues the FTRA prosecution is not precluded.

Court’s Discretion

10. [10]
    Finally, Mr Christoffelsz argues that, if the neither s 4C nor the common law principles of double jeopardy requires the indictment to be quashed, the prosecution should be stayed in exercise of this court’s discretion. The Crown argues there is no abuse of process and no other ground to justify a stay.

11. [11]
    The arguments advanced by the parties raise the following points for consideration:

• Can s 4C be relied upon to quash the indictment?
• If not, do the principles of double jeopardy at common law require the indictment to be quashed?
• If not, is a stay of prosecution otherwise justified in the circumstances?

Can s 4C be relied upon to quash the indictment?

12. [12]
    The first question to be considered is whether s 4C prohibits prosecution of the FTRA offence so that the indictment must be quashed.

13. [13]
    That section, relevantly, provides:

1. (1)
   where an actor omission constitutes an offence:

1. (a)
   under 2 or more laws of the Commonwealth;….

The offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those laws of the Commonwealth…, but shall not be liable to be punished twice for the same act or omission.

14. [14]
    Mr Christoffelsz argues this provision prevents successive prosecutions for the same act or omission. Putting to one side whether the same act or omission is involved, the stage of proceedings at which s 4C comes into play must be identified. In Pearce v The Queen, Justice Kirby (at p 93, [92]) identified six stages at which common law principles and practices have been elaborated to provide relief against the dangers of double jeopardy:

1. the practices adopted by prosecutors;

2. the pleas of autrefois acquit or convict in answer to an offending count in an indictment;

3. a plea in bar in reliance on the fact that the circumstances constituting the gist or gravaman of the two charges are the same or are, in terms or effect the same;

4. adoption of practices in the conduct of criminal trials to reduce the risks of double jeopardy;

5. the exercise of a judicial discretion to prevent an abuse of process; and

6. upon sentencing for convictions of separate offences involving overlapping elements or reliance on common facts, avoiding double punishment for essentially the same conduct.

15. [15]
    The terms of s 4C are directed to double punishment rather than double prosecution and, as such, the focus of the section is the sentencing process. That flows from the use of the different phrases “liable to be prosecuted and punished” and “not be liable to be punished twice” in the following passage of the section:

“The offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those laws of the Commonwealth…, but shall not be liable to be punished twice for the same act or omission.” (emphasis added)

16. [16]
    The first part of that passage is permissive and allows prosecution and punishment under either or any of those laws. The second part is prohibitive and precludes liability for double punishment. The prohibition does not expressly refer to double prosecution. This suggests that the section operates at the stage of punishment not prosecution.

17. [17]
    It is arguable that it is implicit that double prosecution is not allowed because it is not expressly permitted. The phrase “either or any” may imply there can be only one prosecution. That would follow if the phrase is read as “either (of both) or any (one of all)”. That reading is possibly reinforced by a comparison of the wording used in s 4C with the formulation employed in the Interpretation of Legislation Act 1984 Vic s 51(1) which puts beyond doubt that there is no prohibition of double or multiple prosecution.  S 51(1) uses the phrase “either or any or all of those laws” in the first, and permissive, part of the equivalent passage. 

18. [18]
    Given the ambiguity, it is appropriate to consider the purpose of the provision (Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB). Light is cast on that by the Explanatory Memorandum to the Crimes Legislation Amendment Bill 1987 (Cth) by which s 4C was introduced to the Crimes Act. It states that the intention of s 4C is twofold:

“First, that a person is able to be prosecuted under different offence provisions in laws of the Commonwealth or the common law, and secondly, to preclude the possibility of a person being subjected in these circumstances to “double jeopardy”.”

19. [19]
    Whilst the explanatory memorandum uses the phrase “double jeopardy” rather than “double punishment”, the identification of permissible prosecution in conjunction with a provision prohibiting double punishment suggests that the better reading of this section is that it is directed to punishment not to prosecution. If that is correct, s 4C does not prohibit prosecution of an offence constituted by an act or omission which also constitutes another or other offences already prosecuted. That is, double prosecution does not render the indictment bad pursuant to s 4C.

Do the common law principles of double jeopardy require the indictment to be quashed?

20. [20]
    If I am wrong in that interpretation of s 4C, and it does provide a basis for an indictment to be quashed, then it falls for consideration whether the same act or omission constitutes both the FLA and the FTRA offences.

21. [21]
    It was common ground that the phrase should be interpreted in the light of cases dealing with common law principles and similar statutory provisions, such as s 16 of the Criminal Code (Qld). That question is, then, best dealt with in the context of the discussion of common law principles.

22. [22]
    The principle of double jeopardy reflects the law’s aversion to placing an individual in jeopardy of criminal punishment more than once for the one incident or series of events (R v Carroll per Gaudron and Gummow JJ at p 660, [84]). Its narrowest expression finds form in the formal pleas of autrefois convict and autrefois acquit or a plea in bar. The pleas of autrefois acquit and autrefois convict are confined to successive charges which are the same or substantially the same.  The definition of the offence grounds the plea.  Elements which have distinct and different features result in legally significant differentiation (Pearce v The Queen per Kirby J at p 644, [106] and p 652, [125]).

23. [23]
    Mr Christoffelsz has not raised a plea of autrefois convict. He does not dispute there are distinct and different elements in the FLA and the FTRA offences. His argument relies on a wider principle which directs the enquiry to what act is punished and the evidence led in support of the charge, rather than what offence is being prosecuted. 

24. [24]
    In Pearce v The Queen, Justices McHugh, Hayne and Callinan identified s 4C as an example of a legislative shift in focus from punishment twice for the same offence to punishment twice for the same act (at p 622, [38]).

25. [25]
    The Queensland authorities dealing with s 16, which uses the phrase “the same act or omission”, reveal the difficulty the courts have experienced in interpreting the requirements of that phrase. Two tests emerge from the Queensland authorities. One is “the punishable act” test adopted by Chief Justice Hanger in R v Gordon; ex-parte A-G and by Justice of Appeal McPherson and Justice Demack in R v Tricklebank.  Whilst Chief Justice Macrossan drew a different conclusion in Tricklebank’s case, he applied a similar approach, drawing a distinction between the circumstances which are elements of the offence and the particular evidence adduced to prove them (p 333).  The other test, “the focal point” test was adopted by Justice Williams in R v Gordon; ex-parte A-G. 

26. [26]
    It seems that the former test pays more regard to the formulation of the offences, the latter to the evidence led to establish the offence. The differing views reflect the divergence in common law jurisprudence arising out of the Wemyss principle, sometimes referred to as the plea in bar.

27. [27]
    In some cases the Wemyss principle has been applied by reference to the facts and the evidence rather than the legal nature of the charges, akin to the “focal point” test (e.g. O'Loughlin; ex-parte Ralphs).  In others, the formulation of the offences is examined to determine what act is punished by the offence, as in the “punishable act” test (e.g. SPCC v Tallow Products Pty Limited). 

28. [28]
    Unlike s 16 of the Criminal Code (Qld), section s 4C directly links the phrase “act or omission” with the requirement that the act or omission “constitutes an offence”.  This, in my view, favours the application of the “punishable act” test.

29. [29]
    This is also consistent with the decision of the High Court in Pearce v The Queen. Justices McHugh, Hayne and Callinan (at p 616, [19]) considered the confusion about the plea in bar arose from two sources:

“first, the uncertainties inherent in the proposition that it is enough that the offences are “substantially the same; and secondly, the attempt to identify the “sameness” of two offences by reference to the evidence that would be adduced at trial.”

30. [30]
    In their view the issue was not what evidence might be called about the two charges. Instead:

“it is an inquiry about what evidence would be sufficient to procure a legal conviction.  That invites attention to what must be proved to establish commission of each of the offences.  That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they might say.”

In that case, as each of the offences required proof of a fact that the other did not, no plea in bar could be upheld. 

31. [31]
    Justice Kirby, likewise, took the view that complaint about duplication in a second indictment requires the applicant to demonstrate that the subject of the second charge is the same or substantially the same, by reference to the elements of the offences (p 406, [125]).

32. [32]
    To secure a conviction under s 112AP FLA the prosecution must establish the defendant contravened a court order by conduct which involved a flagrant challenge to the authority of the court. To secure a conviction under s 24(2) FTRA the prosecution must establish the defendant operated a bank account in a false name. In this case, evidence was led that Mr Christoffelsz operated a bank account in a false name to demonstrate the means by which, amongst other means, he evaded police detection, thereby contravening the court order. It provided part of the factual basis, then, for the conviction.

33. [33]
    However, whilst operating a bank account in a false name, without more, is sufficient to procure a legal conviction of the FTRA offence, it is neither necessary nor sufficient to procure a legal conviction of the FLA offence. The contravention of the court order may have been proved by additional or different acts, as it was in this case. If the evidence regarding the bank account were not led, the prosecution could have proceeded, nonetheless, on the basis of the other acts relied upon to establish Mr Christoffelsz evaded police detection.

34. [34]
    Further, even if the only evidence led in support of the FLA offence was that Mr Christoffelsz operated a bank account in a false name, that would not have been sufficient to secure a conviction.  The prosecution also had to establish that there was a relevant court order, the bank account was operated in that way to avoid detection and that the contravention involved a flagrant challenge to the authority of the court.

35. [35]
    Whilst there is a common factual base, in part, to the foundation of the two prosecutions in this case, analysis of the sections show that what must be proved in relation to the two offences is not the same or substantially the same. The elements of the offences have “distinct and different features”. Whether the Wemyss principle or s 4C is applied, I am not satisfied that an order must be made to quash the FTRA indictment.

Is a stay of prosecution justified in the circumstances?

36. [36]
    It remains to be determined whether it is appropriate to stay this prosecution. The courts judicial discretion to prevent an abuse of process is not controversial (Connelly v DPP; Jago v District Court of NSW, R v Carroll). 

37. [37]
    In R v Carroll, the High Court approved the exercise of judicial discretion to stay a prosecution in circumstances where a plea of autrefois acquit was not available. Justice McHugh recognised the formal strictures of such pleas are inadequate to give full expression to the concept of double jeopardy and approved the court’s power to “intervene to protect the accused by staying proceedings they consider are an abuse of their processes.” (McHugh J at p 673, [131]).

38. [38]
    Whether a stay should be granted requires a “weighing process involving a subjective balancing of a variety of factors and considerations.” These include fairness to the accused, the public interest in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice (Walton v Gardiner at pp 395-396). The circumstances in which a stay will be appropriate are various. “The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined.” (R v Carroll at pp 650-651, [47]).

39. [39]
    If oppression of or prejudice to the accused can be demonstrated, a stay is warranted. Mr Christoffelsz need not show the FTRA prosecution is “well nigh outrageous” but must show some special circumstances. However, a general sense of fairness cannot be substituted for a prosecutor’s decisions, made within power, which are not usually subject to judicial supervision (Pearce v The Queen per Kirby J at p 649, [117]).

40. [40]
    Mr Christoffelsz has not argued that the FTRA prosecution is motivated by any ulterior or improper purpose. Rather, his argument is that the effect of successive prosecutions on the same factual basis puts him at risk of double punishment and this cannot be avoided by a careful sentencing exercise.

41. [41]
    There is no dispute that the entirety of the factual basis for the FTRA prosecution was before the court on the FLA prosecution. Nothing more will be required to establish the offence. Mr Christoffelsz argues that he has already been punished for the act of operating a false bank account as it is a subset of the acts which founded the contempt for which he was punished upon conviction of the FLA offence. While the elements are not the same, the entirety of the evidence to be led at the trial on this indictment has already been led before the Family Court in the contempt proceedings and was taken into account in sentencing.  The finding of fact based on that evidence was certainly referred to in Justice Barry’s sentencing remarks as one of the acts which demonstrated that offence.

42. [42]
    The crown’s submission is that the concept of double jeopardy can be adequately accounted for on this indictment during the sentencing process by a careful analysis of what punishment Mr Christoffelsz has already suffered due to the conduct charged.

43. [43]
    The difficulties inherent in the sentencing exercise are amply demonstrated by Pearce v The Queen. In that case the conduct said to be doubly punished was causing grievous bodily harm.  It was charged as an offence in its own right and also as a circumstance of aggravation for the different offence of breaking and entering the victim’s house. The charges were joined on the one indictment and both were sentenced on the same occasion. Concurrent penalties were imposed. 

44. [44]
    The Court agreed the indictment should not have been stayed because the two charges were different and reflected the entire criminality of the accused. The Court also agreed that, because the sentences were concurrent, the overall penalty did not offend the principle of totality.

45. [45]
    The majority (McHugh, Hayne and Callinan JJ; Gummow J agreeing) concluded that, as the act of inflicting grievous bodily harm was an element of each of the offences, it was wrong to punish the offender twice for its commission and the individual sentences were flawed. To make them wholly concurrent failed to take account of the differences in the conduct subject to punishment for each count. The matter was remitted for re-sentencing.

46. [46]
    It is difficult to identify what further aspect of Mr Christoffelsz’s criminality is reflected in the FTRA offence. Whilst the different elements of the two offences demonstrate that the offences are not necessarily directed to the same criminal conduct, in the circumstances of this case, the criminal conduct sought to be punished by the FTRA offence has already been the subject of the FLA offence. The conduct punished upon conviction of the FLA offence was the flagrant challenge to the court’s authority involved in the contravention of its order by, amongst other things, evading police detection through operating a bank account in a false name. In so far as the penalty then imposed can be sheeted home to operating the account, Mr Christoffelsz’s criminal conduct was concealing the identity of the account holder, in order to evade police detection and, thus, contravene the court order. 

47. [47]
    The principal object of the FTRA is to facilitate the administration and enforcement of taxation laws. A further object is to facilitate the administration and enforcement of other laws of the Commonwealth and the Territories (s 4). As there is no suggestion that Mr Christoffelsz did so in order to avoid his taxation liabilities, the criminality of his operating the account which the prosecution of the FTRA offence seeks to punish must be the difficulties inherent in enforcing Commonwealth laws when an account holder’s identity is concealed.

48. [48]
    That analysis indicates that, in the circumstances of this case, the criminality involved in the conduct addressed by the two prosecutions is similar in nature: that is, creating an obstacle to the enforcement of requirements imposed pursuant to Commonwealth law by concealing the identity of the account holder. That has been punished by the sentence imposed for the FLA offence. Certainly there is a further element of criminality also punished by the FLA sentence, the flagrant challenge to the authority of the court, but what further criminality the FTRA offence reflects, is not evident. In the circumstances of this case, it is difficult to see how a careful sentencing exercise can avoid double punishment for the criminal conduct of operating a bank account in a false name.

49. [49]
    That risk is compounded by the fact that Mr Christoffelsz has already served his sentence for the FLA offence.  There is no potential for concurrent penalties.  Even if the only penalty imposed is a conviction being recorded; that is a form of further punishment. If no conviction is recorded, the utility of the prosecution is questionable.

50. [50]
    Further, the rationale underlying the concept of double jeopardy deals with more than double punishment and encompasses prosecutorial harassment, in the desire to avoid a person being twice “vexed with” proceedings related to the same incident or series of events. The cost, inconvenience, uncertainty and burden of a second legal proceeding cannot be remedied by a careful sentencing exercise at the end of the proceedings. If no further penalty is imposed, there is no utility in it being pursued and Mr Christoffelsz would have been “vexed” by having to meet this indictment.

51. [51]
    Whilst there is no suggestion that the prosecution is motivated by any unlawful or improper purpose, and the decision about what charges to prosecute is not normally subject to judicial supervision, in this case, I consider the relevant factors weigh in favour of a stay. Mr Christoffelsz has already been punished for the criminal conduct which founds the FTRA prosecution. It is difficult to identify any further aspect of his criminality which could be addressed by a sentence under the FTRA. There is no potential for a concurrent sentence as he has already served the FLA sentence in full. Even if a careful sentencing exercise could avoid double punishment, Mr Christoffelsz will have been vexed by two separate prosecutions based upon the act of operating a bank account in a false name. Accordingly, I order the indictment is stayed.