Petroulias v The Queen

[2005] HCATrans 363

[2005] HCATrans 363

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S143 of 2005

B e t w e e n -

NIKYTAS NICHOLAS PETROULIAS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 MAY 2005, AT 9.33 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR N.J. OWENS, for the applicant.  (instructed by Coadys)

MR P.S. HASTINGS, QC:   I appear with my learned friend, MR C.P. HOY, may it please your Honours.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, the application involves really two considerations, first of all whether the underlying issue would merit the grant of special leave and, secondly, whether the Court should enter on the matter the applicant’s trial on this and two lesser counts having commenced.

GLEESON CJ:   Is the trial part heard at the moment before Justice Sully?

MR JACKSON:   Yes, it is, your Honour.

GLEESON CJ:   And a jury?

MR JACKSON:   Yes, your Honour, and will go for some time.  Could I say the aspects are to a degree interconnected and they are interconnected because the proceedings the subject of the application were proceedings for a stay of the criminal proceedings.  The reason why the matter is before the Court after the commencement of the trial is because Justice Sully – and I do not intend this as a criticism in any way – at page 176 declined to adjourn the trial pending the application.

GLEESON CJ:   Is it for a stay of the entire proceedings or for just one charge?

MR JACKSON:   One charge, your Honour.

GLEESON CJ:   What will happen to the others?

MR JACKSON:   That is dealt with at about page 177.  Justice Sully discusses what would happen in that regard and that is that the trial will continue.  There are three counts.  This is the most serious of them.  It is the one that carries a possibility of 10 years maximum imprisonment.  The maximum term in the others is two years.  I do intend to come to that in a moment if I may but may I just say something about the central issue in the proceedings and why it is of significance in the case.

As your Honours will have seen, particularly from the reasons for judgment of Justice Mason at page 86, paragraphs 35 to 44, this count and the earlier versions of it and its particulars had changed over time.  The count in the form in which it is now before Justice Sully and the jury is as set out at page 71, paragraph 2, with the relevant particulars being at page 72, paragraph 5.  Your Honours, the way in which that count is to be put to the jury is dealt with by the majority in the Court of Criminal Appeal at page 75 in a passage which goes between paragraphs 12 and 20.  May I endeavour to summarise what is said by the Court of Criminal Appeal majority there.

The first aspect of it is that it is said to be a question of law for the trial judge whether there is a:

possibility that the Commissioner would win a case in which he was allowed to dispute the private rulings –

that were said to have been given by the applicant.  Your Honours will see that in two passages:  paragraph 12 at page 75 in the first five or six lines, then the second aspect is paragraph 14, page 76, lines 25 to 26:

We have already accepted that the capacity of the Commissioner’s arguable case to succeed is an issue of law for the judge (par 12, supra).

If I could pause at that point, the trial judge, in other words, is to decide whether the Commissioner’s argument in relation to the application of the taxation law was capable of being an arguable case in relation to the rulings.  It is yet said that there remains a question of fact for the jury, namely whether the rulings were in fact, it would have to be, arguably wrong. 

Your Honours will see that dealt with essentially I think in two passages.  At paragraph 14 your Honours will see the last two lines.  The “remaining issue” there referred to is dealt with in paragraph 15 and particularly between lines 38 to the end of the page.  Could I invite your Honours’ attention particularly to the last part of paragraph 15.  Despite what is said at paragraph 15 about the arguable case aspect being merely a fact in issue with the relevant element being deprivation, the two are effectively synonymous.  That appears from two passages.  One is in paragraph 11 at page 74.  Your Honours will see in the last two lines on page 74 what is said there:

to say that the private rulings are arguably wrong is really saying no more than that the Commissioner of Taxation has –

and your Honours will see the remainder of that sentence.  Similarly, at page 77, paragraph 17, where what is dealt with is the directions which the judge would be required to give.  Your Honours will see in essence that, whilst it is said that the question is a matter for the jury, the nature of the question about deprivation is simply whether an arguable case has been lost.

Your Honours, if I could move from that then, if one bears in mind that the private rulings in question are rulings on statements of assumed facts, the application of the income tax laws to them could only, in our submission, be a question of law.  That gives rise, in our submission, to the questions which are raised by our summary of argument.  If I could leave aside any prefatory matters and go to page 138, in paragraph 21 we make the submission which I made just a moment ago, and that is that the only question is one of the legal consequence of the facts stated in the rulings.  If the question were whether the rulings were actually wrong, that would be a question of law.  If I could take your Honours to paragraphs 17 and 18 of our submissions at page 137, the circumstance that the issue is whether the rulings were arguably wrong does not alter the quality of the question as a legal question.

This is not a case – and our learned friends have referred to a Western Australian case of Pearce – where the jury was being told to apply a legal standard to facts as found.  Rather – and we make this point in paragraph 23 of our written submissions at page 139 – this is a case where the jury is required to find that a legal proposition is legally arguable.  If what I have submitted so far is correct, that leads to the conclusion that the issue involved was one of law and prima facie would be decided by the judge, not the jury.

Could we say two things about that, your Honours.  The first is that Justice Sully could not decide the issue as the judge consistently with the decision of the Court of Criminal Appeal.  That is the first thing.  The second thing is that the element of deprivation is in the end one which has to be left to the jury.  If I could take your Honours to our written submissions at paragraph 35 at page 141, because of the nature of the count and the particulars, that element is one which is a question of law.

Could I turn then to the procedural aspects.  We recognise of course the Court’s reluctance to enter upon a matter where a trial is in progress.  We recognise too that to grant special leave is likely to require the Court to deal expeditiously with the matter and also that it is possible to say he might not be convicted on this count.  If he is, he has the opportunity to appeal at the Court of Criminal Appeal and ultimately perhaps here. 

Could I say a few things in response to that.  The first is that this is by far the most serious of the three counts.  Your Honours will see that from

footnote 34 at page 143 where the penalties are set out.  The second feature is that if we are correct, the trial would be proceeding on the basis of a distribution of functions of judge and jury, to put our case at its lowest, which is fundamentally erroneous.  The third is that if the issue is dealt with after a conviction and appeal, the issue would ultimately arise one, two or perhaps three years later and it may be after serving some or all of the prison sentence – I appreciate that always happens in criminal appeals but I am putting it as a factor connected with the others.

The fourth is that the way in which the Court of Criminal Appeal has dealt with the matter must make it very difficult as a practical matter for the jury to say the matters are not arguable.  Finally, your Honours, there is the additional cost of course of trial and appeal.  Those are our submissions.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Hastings.

The history of these proceedings is set out in the reasons for judgment of Justice Mason in the Court of Appeal.  The trial of the applicant, which has already been delayed, is currently proceeding before Justice Sully and a jury.  The Court of Appeal held that this was not a proper case for a permanent stay of proceedings against the applicant.  Some of the reasoning leading to that conclusion concerned legal matters that may be in controversy at the trial or perhaps in some subsequent appeal if there is a conviction of the applicant.

Even so, there are insufficient prospects of success of an appeal against the Court of Appeal’s decision on the ultimate issue of whether a permanent stay should have been granted to warrant this Court taking the unusual and generally inappropriate course of intervening at this stage.

The application is dismissed.

AT 9.45 AM THE MATTER WAS CONCLUDED