Adler v Director of Public Prosecutions (2004) 51 ACSR 1

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Facts

  • Adler, following the ASIC v Adler litigation, was disqualified from being a director.  He was ordered to pay substantial compensation due to breaching varies civil penalty provisions.
  • The DPP commenced criminal proceedings under the Corporations Law 1998 (Cth) for breaches arising out of the same conduct.
  • Adler argued that the criminal proceedings were an abuse of process: “double jeopardy”.  In effect, Adler would be punished twice.

Issue

  • Should the criminal proceedings have been terminated where the conduct had already given rise to civil penalty orders?

Held

  • The NSW Court of Criminal Appeal held that the the proceedings were not “double jeopardy”.
  • The civil penalty orders were not a prosecution of Adler; rather, they were of a ‘civil nature’ and required civil burdens of proof to be applied (“on the balance of probabilities”), rather than the criminal burden of proof (“beyond all reasonable doubt”).
  • The court still retains a discretion to grant a stay against a civil case if there is an ongoing criminal investigation.

Quotes

“The reasons of the High Court in Rich v ASIC (2004) 209 ALR 271 50 ACSR 242 caution strongly against drawing conclusions based upon strict and mutually exclusive dichotomies between protective (civil) and punitive (criminal) notions…”

(Mason P at page 9 [45])


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