- 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.
- Should the criminal proceedings have been terminated where the conduct had already given rise to civil penalty orders?
- 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.
“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 )
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