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Petroulias v R

Petroulias v R

Case [2007] NSWCCA 154 1 June 2007

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Petroulias v R [2007] NSWCCA 154

FILE NUMBER(S):
2007/1296

HEARING DATE(S): 1 June 2007

JUDGMENT DATE: 1 June 2007
EX TEMPORE DATE: 1 June 2007

PARTIES:
Nikytas Nicholas Petroulias - Applicant
Crown - Respondent

JUDGMENT OF: Ipp JA Latham J Fullerton J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2002/93

LOWER COURT JUDICIAL OFFICER: Johnson J

LOWER COURT DATE OF DECISION: 23 May 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
R (Cth) v Petroulias (No 19) [2007] NSWSC 536

COUNSEL:
RF Sutherland SC with GK Walsh - Applicant
P Hastings QC with C Hoy - Respondent

SOLICITORS:
Coadys - Applicant
Commonwealth Director of Public Prosecutions - Respondent

CATCHWORDS:
CRIMINAL LAW – fair trial – temporary stay of proceedings – whether trial judge’s order refusing to grant a temporary stay of proceedings until the Commonwealth Director of Public Prosecutions paid the reasonable costs incurred by the applicant resulted in serious injustice or unfairness to the applicant – unfairness can only be established by proving fault on the part of the prosecution – whether a fault in the ‘machinery of the administration of justice’ is sufficient to establish unfairness

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
Jury Act 1977 (NSW)
Taxation Administration Act 1953 (Cth)

CASES CITED:
Australian Coal and Shale Employees’ Federation and Anor v The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
Jago v The District Court of New South Wales (1989) 168 CLR 23
Lovell v Lovell (1950) 81 CLR 513
R v Fisher (2003) 56 NSWLR 625
R v Mosely (1992) 28 NSWLR 735
R v Selim [2007] NSWSC 154

DECISION:
Application for leave to appeal refused.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/1296
IPP JA
LATHAM J
FULLERTON J
Friday 1 June 2007

Nikytas Nicholas PETROULIAS v REGINA (Cth)

Judgment

IPP JA: The applicant seeks leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) against a decision of Johnson J. By that decision, his Honour dismissed the applicant’s notice of motion for an order staying proceedings against him until the Commonwealth Director of Public Prosecutions paid the reasonable costs that he had incurred in relation to a trial that commenced on 26 March 2006 which aborted when, by order of the majority of this Court on 16 May 2007, the jury was required to be discharged on the ground that one of the jurors was disqualified. I shall refer to this trial as the second trial.
The applicant's notice of appeal casts no light on the grounds on which he seeks appellate relief. It merely asserts error on behalf of the trial judge and does not explain what that error is.
In written submissions filed on the applicant’s behalf, it was stated that Johnson J wrongly held that the applicant needed to establish fault on the part of the prosecution before an order as sought could be granted. Alternatively, according to the written submissions,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Petroulias v R

Details

AGLC: Petroulias v R [2007] NSWCCA 154
Case: [2007] NSWCCA 154
Decision Date: 1 June 2007

CaseChat Overview and Summary

Petroulias was charged with multiple counts of serious criminal offences, including drug trafficking and money laundering. He applied for a temporary stay of the proceedings, arguing that the Commonwealth Director of Public Prosecutions had not paid the reasonable costs incurred by him, and that this refusal would result in serious injustice or unfairness. The trial judge declined the application, and Petroulias appealed against the refusal. The appeal focused on whether the refusal of the trial judge to grant a temporary stay of proceedings until the Commonwealth Director of Public Prosecutions paid the reasonable costs incurred by the applicant resulted in serious injustice or unfairness to the applicant, and whether a fault in the `machinery of the administration of justice' is sufficient to establish unfairness.

The court considered whether unfairness can only be established by proving fault on the part of the prosecution. The court held that unfairness can be established by proving a fault in the `machinery of the administration of justice', even in the absence of fault on the part of the prosecution. The court found that the refusal of the trial judge to grant a temporary stay of proceedings until the Commonwealth Director of Public Prosecutions paid the reasonable costs incurred by the applicant did not result in serious injustice or unfairness to the applicant. The court held that the refusal did not interfere with Petroulias' right to a fair trial, as the applicant had not demonstrated that the refusal had any impact on his ability to prepare and present his defence.

The appeal was dismissed. The court held that the trial judge's refusal to grant a temporary stay of proceedings did not result in serious injustice or unfairness to the applicant. The court did not find any fault in the `machinery of the administration of justice' that would have established unfairness. The court further held that the applicant had not demonstrated any prejudice that flowed from the refusal, and that the trial judge had properly exercised his discretion in refusing the application.

Orders