Petroulias v R

[2006] NSWCCA 415

CITATION:	PETROULIAS v R(CTH) [2006] NSWCCA 415
HEARING DATE(S):	24 November 2006
JUDGMENT DATE:	24 November 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Grove J at 16; Howie J at 17
DECISION:	Leave to appeal refused
CATCHWORDS:	CRIMINAL LAW - s 5F APPEAL - form of the indictment - duplicity - insufficient to make out element of the offence - abuse of process - relevance of history of proceedings
LEGISLATION CITED:	Criminal Appeal Act 1912 Criminal Procedure Act 1986
PARTIES:	Nikytas Nicholas Petroulias (Appl) The Crown (Cth)
FILE NUMBER(S):	CCA 2006/1964
COUNSEL:	B Walker SC/N Clelland SC/G Livermore (Appl) P Hastings QC/C Hoy (Crown)
SOLICITORS:	Coadys, Barristers & Solicitors (Appl) Commonwealth Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2002/93
LOWER COURT JUDICIAL OFFICER:	Johnson J
LOWER COURT DATE OF DECISION:	8 August 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	R v Petroulias (No 1) NSWSC 788

2006/1964

McCLELLAN CJ at CL
GROVE J
HOWIE J

FRIDAY 24 NOVEMBER 2006

PETROULIAS, Nikytas Nicholas v REGINA (CTH)

Judgment

1 McCLELLAN CJ at CL: This is an application for leave to appeal, pursuant to s 5F of the Criminal Appeal Act 1912 from a decision of Johnson J.

2 Johnson J has heard a number of pre-trial applications in relation to the retrial of the applicant upon an indictment containing three counts.

3 The first of those counts reads as follows.

“Between about 1 September 1997 and 27 February 1999, Nikytas Nicholas Petroulias did defraud the Commonwealth, in that while an officer of the Australian Taxation Office, he did put the revenue of the Commonwealth at risk by causing Private Binding Rulings and Advance Opinions to issue to taxpayers, by dishonest means, (s 29D of the Crimes Act 1914 (Cth) - maximum penalty - ten years imprisonment).”

4 The applications made to his Honour, and in respect of which the application to this Court was made, sought four orders as follows:

(a) That the first count be quashed pursuant to s 17 Criminal Procedure Act 1986, upon the basis that the Crown case as particularised, and the evidence to be presented in proof of the Crown case, is not sufficient to make out the elements of the offence charged.

(b) That the first count be stayed permanently as an abuse of process of the Court upon the basis that it is foredoomed to fail.

(c) That the first count be quashed pursuant to s 17 Criminal Procedure Act 1986, upon the basis that it is bad for duplicity, and

(d) In addition to the grounds for a permanent stay of the first count referred to in paragraph (b) above, an order that all counts on the indictment be stayed permanently as an abuse of the process of the Court upon a number of bases which his Honour records will be referred to later in the judgment.

5 Johnson J heard argument and determined to dismiss the applications.

6 In his reasons for judgment, his Honour set out the history of the prosecution which has involved proceedings in this Court on a previous occasion, two proceedings in the Court of Appeal, an application determined by a judge in the Common Law division, together with pre-trial applications made to Sully J, before his Honour proceeded, with a jury, to try the applicant. The trial before Sully J resulted in the jury being unable to agree, with the consequence that the proceedings before Johnson J are a retrial of the various counts.

7 In the course of the trial before Sully J, leave was granted by this Court to consider a number of questions going to the nature of the charges, the evidence to support them and the manner in which they should be put to the jury. The fundamental issue in the previous appeal was whether the proceedings should be permanently stayed. That application was refused but in the course of the reasons of this Court, consideration was given to the issues at the trial which required resolution by the judge and those which fell to be resolved by the jury.

8 An application for special leave to appeal this Court’s decision was made to the High Court. The High Court rejected that application and the trial before Sully J proceeded.

9 The present application raises issues which have previously been addressed and determined by this Court with one exception. The exception relates to an argument that if the trial proceeds in the manner previously determined by the decision of this Court, which was the course followed at the first trial, it must miscarry by reason of the fact that the jury will be asked to determine a matter of law. The applicant argues that a jury required by s 80 of the Commonwealth Constitution cannot be asked to determine a matter of law.

10 The correct classification of the relevant question has previously been considered by this Court. By majority the Court ruled that the question, which is argued to be a question of law, is in fact a question of fact and, accordingly, is appropriate for the jury to determine. It would follow that before any question of the constitutional validity of the trial could arise, it would be necessary for the previous decision of this Court to be reconsidered and to be overturned.

11 It must be remembered that not only in this Court but in the course of the earlier trial and now in the matters considered by Johnson J, the application for a permanent stay has been pursued on various bases. Apart from the matter to which I have referred, it is not suggested to this Court that any other argument will be advanced to support the application for permanent stay other than those which have previously been considered and rejected.

12 In my opinion, in these circumstances, the course which this Court should take is to refuse leave.

13 As I have stated these proceedings have already produced a multitude of pre-trial applications, three decisions at the appellate level, one application to the High Court and one trial. It is necessary, in my view, in the interests of both the applicant and of the prosecution, that effective measures are now taken to ensure that the retrial is commenced and completed with efficiency.

14 By rejecting the application for leave, the applicant is not precluded from a further approach to either this Court or the High Court should he be convicted. In the course of any such appeal the arguments which are presently sought to be advanced can be advanced. The applicant will not be denied an appropriate opportunity to advance them to this Court or the High Court.

15 In those circumstances, in my view, leave to appeal should be refused.

16 GROVE J: I agree with McClellan CJ that leave to appeal should be refused.

17 HOWIE J: I also agree.

18 MCCLELLAN CJ at CL: Accordingly, the order of the Court is that leave to appeal is refused.

**********