Petroulias v Wills - [2003] NSWSC 106

Reported Decision:
138 A Crim R 182

Supreme Court

CITATION: Petroulias v Wills [2003] NSWSC 106

HEARING DATE(S): 24 February 2003

JUDGMENT DATE:
3 March 2003

JUDGMENT OF: Simpson J

DECISION: 1. leave to appeal granted; 2. appeal allowed in part; 3. the order of the magistrate committing the applicant for trial on a charge under s29D of the Crimes Act 1914 (Cth) quashed; 4. appeal otherwise dismissed; 5. respondent to the pay the applicant's costs of and incidental to the appeal, including the application for leave to appeal; 6. respondent to pay the applicant's costs of and incidental to the committal proceedings, so far as those costs were incurred in relation to the charge under s29D.

CATCHWORDS: application for leave to appeal against order for committal for trial - s104 Justices Act 1902 - charge of defrauding the Commonwealth - Essenbourne Pty Ltd v Commissioner of Taxation [2002] FCA 1577 (unreported, 17 December 2002) - necessity to prove Commonwealth deprived of something of value - costs of or incidental to the proceedings giving rise to the appeal - costs of or incidental to the appeal

LEGISLATION CITED: ss 41A & 104(3) Justices Act 1902
s29D Crimes Act 1914 (Cth)
s76 Supreme Court Act 1970

CASES CITED: Basha v R (1989) 39 A Crim R 337
Essenbourne Pty Ltd v Commissioner of Taxation [2002] FCA 1577 (unreported, 17 December 2002)
Petroulias v Wills [2002] NSWSC 1190, unreported

PARTIES :
Nikytas Nicholas Petroulias - Applicant
Gary Andrew Wills - Respondent

FILE NUMBER(S): SC 12242/02

COUNSEL: R Richter QC - Appellant
PS Hastings QC with CP Hoy - Respondent

SOLICITORS: W Coady - Applicant
Commonwealth Director of Public Prosecutions - Respondent

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 10441/01

LOWER COURT
JUDICIAL OFFICER : Sweeney LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

3 March 2003

12242/02 Nikytas Nicholas PETROULIAS v Gary Andrew WILLS
SUPPLEMENTARY JUDGMENT

1 HER HONOUR: In December 2002 the applicant applied to this court, pursuant to s104 of the Justices Act 1902, for leave to appeal against the decision of a magistrate in the Local Court to commit him for trial on three counts under the Crimes Act 1914(Cth). On 16 December 2002 I delivered my reasons for concluding that the decision of the magistrate disclosed certain errors of law, and that, accordingly, the leave sought should be granted: Petroulias v Wills [2002] NSWSC 1190, unreported. Having regard to the complexities of the issues involved, and the variety of options available following the delivery of my reasons and conclusions, rather than proceeding to make orders at that time, I afforded the parties a further opportunity to be heard on the form of the orders to be made as a result of my reasoning and conclusions. I stated my intention to grant leave to appeal.

2 In view of what has occurred since I delivered judgment, it is as well to recapitulate, briefly, some salient matters. What…

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 [2003] NSWSC 106
Case: [2003] NSWSC 106
Decision Date: 3 March 2003

CaseChat Overview and Summary

Petroulias applied for leave to appeal against an order for committal for trial, which arose from a charge of defrauding the Commonwealth. The case was heard in the Federal Court of Australia. The primary issue was whether the court was required to consider the Commonwealth's deprivation of something of value to grant leave to appeal. The case referenced Essenbourne Pty Ltd v Commissioner of Taxation, which established that the prosecution did not need to prove the Commonwealth's deprivation of something of value to secure a conviction.

The court examined whether the Commonwealth's deprivation of something of value was a necessary prerequisite for granting leave to appeal. The court determined that the established principle in Essenbourne Pty Ltd v Commissioner of Taxation did not apply to the grant of leave to appeal. The court held that the requirement of proving the Commonwealth's deprivation of something of value did not extend to the grant of leave to appeal. The court also considered the costs of the proceedings and the appeal in its decision-making process. The application for leave to appeal was ultimately dismissed.

Orders