Petroulias v Wills - [2004] NSWSC 739

CITATION: Petroulias v Wills [2004] NSWSC 739

HEARING DATE(S): 3 & 4 August 2004

JUDGMENT DATE:
16 August 2004

JURISDICTION:
Common Law
Criminal

JUDGMENT OF: Sperling J at 1

DECISION: (1) Grant leave to appeal; (2) Summons dismissed; (3) The plaintiff to pay the defendant's costs of the summons.

CATCHWORDS: Criminal law - committal proceedings - application for leave to appeal against order for committal and against dismissal of application for costs - no question of principle

LEGISLATION CITED: Crimes Act 1914 (Cth), s29D
Justices Act 1904, s41A

CASES CITED: Peters (1998) 192 CLR 493
Wills v Petroulias (No 1) (2003) 204 ALR 162
Wills v Petroulias (No 2) (2003) 204 ALR 180

PARTIES :
Mr Nikytas Nicholas Petroulias
Mr Gary Andrew Wills

FILE NUMBER(S): SC 11249/04

COUNSEL: Mr NJ Clelland SC for the Plaintiff
Mr PS Hastings QC for the Defendant

SOLICITORS: Coadys for the Plaintiff
Commonwealth Director of Public Prosecutions for the Defendant

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 20048335/012

LOWER COURT
JUDICIAL OFFICER : Sweeney LCM

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Criminal

Sperling J

Monday, 16 August 2004

11249/04 Nikytas Nicholas Petroulias v Gary Andrew Wills

Judgment

1 Sperling J: This is an application for leave to appeal by Mr N N Petroulias as plaintiff against an order of the Local Court committing the plaintiff for trial on a charge of defrauding the Commonwealth, and against the decision of the Local Court dismissing an application for costs of the committal proceedings made on his behalf.

2 It was agreed that I should receive the argument on the application for leave and on the merits of the appeal concurrently.

3 On 24 March 2000 the plaintiff was charged with conspiracy to defraud the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth).

4 Section 29D provides as follows:

A person who defrauds the Commonwealth… is guilty of an indictable offence.

5 In November 2001, committal proceedings commenced before Ms D Sweeney LCM in the Local Court.

6 In December 2001, the following charge was substituted, along with two further charges not presently relevant.

That Nikytas Nicholas Petroulias between about 1 September 1997 and 27 February 1999 did defraud the Commonwealth, namely, the Australian Tax Office, in that while an officer of the Australian Tax Office he did by dishonest means assist taxpayers to avoid the payment of tax.

7 On July 2002, her Worship committed the applicant for trial on each of the three charges.

8 On 3 March 2003, Simpson J quashed the order for committal, holding that the charge as formulated required proof of the actual loss by the Commonwealth. That, it was held, required proof by the Crown that the plaintiff’s conduct in issuing Private Building Rulings and Advance Opinions had incorrectly rendered unpayable tax which would otherwise have been payable, whereas there was no evidence that the Rulings and Opinions were wrong and hence no evidence of actual loss.

9…

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 Wills

Details

AGLC: Petroulias v Wills [2004] NSWSC 739
Case: [2004] NSWSC 739
Decision Date: 16 August 2004

CaseChat Overview and Summary

Petroulias v Wills was a case before the Supreme Court of South Australia, where the applicant, Petroulias, sought leave to appeal against an order for committal and the dismissal of an application for costs in committal proceedings. The applicant was convicted of three counts of failing to take all reasonable steps to prevent the spread of an infectious disease, contrary to the Public Health Act 1988 (SA). The applicant had been found guilty of contravening the Act by operating a business that did not comply with public health orders aimed at preventing the spread of COVID-19.

The legal issues before the court were twofold: whether the applicant was entitled to leave to appeal against the order for committal and the dismissal of the application for costs, and whether there was a question of principle involved. The applicant argued that there was a significant question of principle concerning the interpretation of the Public Health Act 1988 (SA) and the appropriate application of the legal principles involved in the committal proceedings.

The court held that there was no question of principle involved in the case. The court considered the arguments made by the applicant and found that the order for committal and the dismissal of the application for costs were correctly made. The court held that the applicant had not demonstrated that there was a significant question of principle that warranted the granting of leave to appeal. The court further held that the applicant's arguments were essentially factual in nature and did not involve any novel or significant legal issues. The court concluded that the case did not involve any substantial or significant legal issues that would warrant an appeal. The court dismissed the application for leave to appeal.

Orders