R (Cth) v Petroulias (No. 19)

[2007] NSWSC 536

CITATION:	R (Cth) v Petroulias (No. 19) [2007] NSWSC 536
HEARING DATE(S):	21 May 2007 and 22 May 2007
JUDGMENT DATE :	23 May 2007
JUDGMENT OF:	Johnson J at 1
DECISION:	The orders sought by the Accused in the Notice of Motion dated 18 May 2007 are declined - trial fixed to commence on 6 June 2007
CATCHWORDS:	CRIMINAL LAW - application for stay of commencement of trial conditional upon Crown paying costs of aborted trial - whether accused must establish fault or responsibility on part of prosecuting authorities - requirement that accused demonstrate identifiable injustice for which it can sensibly be said that prosecuting authorities should be held responsible - not demonstrated in this case - conditional stay refused - application for temporary stay based upon media publicity - application for adjournment for accused to arrange for funding of private legal representation
LEGISLATION CITED:	Crimes Act 1914 (Cth) Jury Act 1977 Criminal Appeal Act 1912 Suitors’ Fund Act 1951 Taxation Administration Act 1953 (Cth) Evidence Act 1995 Criminal Appeal Act 1912
CASES CITED:	R v Fisher (2003) 56 NSWLR 625 R v Petroulias (No. 1) [2006] NSWSC 788 R v Petroulias (No. 17) [2007] NSWSC 499 Petroulias v R [2007] NSWCCA 134 Commissioner of Stamp Duties (NSW) v Owens [No. 2] [1953] 88 CLR 168 Solomons v District Court of NSW [2002] 211 CLR 119 Jago v District Court (NSW) (1989) 168 CLR 23 Latoudis v Casey (1990) 170 CLR 534 Selim v R [2007] NSWSC 154 Segal v Waverley Council (2005) 64 NSWLR 177 R v Mosely (1992) 28 NSWLR 735 Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523 R v Yuill (1993) 69 A Crim R 450 The Queen v Glennon (1992) 173 CLR 592 John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344 Dietrich v The Queen (1992) 177 CLR 292 R v Yuill (unreported, 1 November 1995, BC9501744) R v Petroulias (No. 11) [2007] NSWSC 533 R v Petroulias (No. 12) [2007] NSWSC 534 R v Petroulias (No. 13) [2007] NSWSC 535
PARTIES:	Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)
FILE NUMBER(S):	SC 2002/93
COUNSEL:	Mr P Hastings QC; Mr C Hoy (Crown) Mr R Sutherland SC; Mr G Walsh (Accused)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

23 May 2007

2007/93 Regina (Commonwealth) v Nikytas Nicholas Petroulias (No. 19)

JUDGMENT (on applications by Accused for stay of commencement of trial - see T106)

1 JOHNSON J: By Notice of Motion dated 18 May 2007, the Accused seeks the following orders:

(a) that proceedings on the charges under the Crimes Act 1914 (Cth) in respect of which the jury was discharged on 16 May 2007 be stayed unless and until the Commonwealth Director of Public Prosecutions pays the reasonable costs incurred by or on behalf of the Accused in relation to the trial that commenced on 26 March 2007;

(b) that proceedings on the charges under the Crimes Act 1914 (Cth) in respect of which the jury was discharged on 16 May 2007 be stayed for a period of two months.

2 The Accused makes three applications in support of the relief sough in the Notice of Motion:

(a) an application for a stay conditional upon the Crown paying the Accused’s costs of the aborted trial in accordance with the principles in R v Fisher (2003) 56 NSWLR 625;

(b) an application for a temporary stay of the commencement of the trial for a period of two months as a result of material broadcast concerning the Accused on the evening of 16 May 2007 on the “PM” programme on ABC Radio;

(c) an application to adjourn the commencement of the trial for a period of two months to allow the Accused to put in place arrangements for payment of his legal costs and expenses for the purpose of the forthcoming trial.

General Background

3 The history of the litigation giving rise to this trial may be found in R v Petroulias (No. 1) [2006] NSWSC 788. On 26 March 2007, a jury was selected and the trial of the Accused commenced upon an indictment alleging the following offences:

(a) one count of defrauding the Commonwealth contrary to s.29D Crimes Act 1914 (Cth) ;

(b) one count of agreeing to receive a benefit on an understanding that the exercise by him of his duty as a Commonwealth officer would be affected contrary to s.73 Crimes Act 1914 (Cth) ; and

(c) one count of publishing to a person to whom he was not authorised to publish, documents which came into his possession by virtue of him being a Commonwealth officer and which it was his duty not to disclose, an offence under s.70 Crimes Act 1914 (Cth) .

4 The trial that commenced on 26 March 2007 was a retrial following a trial before Sully J and a jury in 2005 at which the jury was unable to agree and was discharged.

5 On 7 May 2007, a juror did not attend Court to continue his participation in the criminal trial of the Accused. Enquiries then undertaken revealed that the absent juror had been disqualified from driving a motor vehicle by court order or orders since 2002 and remained disqualified until 2015. Having heard submissions from the parties, I determined to discharge the absent juror under s.22 Jury Act 1977 and to direct that the trial of the Accused continue before the remaining 11 jurors: R v Petroulias (No. 17) [2007] NSWSC 499. The Accused appealed to the Court of Criminal Appeal under s.5F Criminal Appeal Act 1912 and on 16 May 2007, by majority, that Court upheld the appeal, vacated my judgment of 10 May 2007 and ordered that the jury be discharged: Petroulias v R [2007] NSWCCA 134.

6 On 16 May 2007, the remaining 11 members of the jury were released following the order for discharge of the Court of Criminal Appeal. Thereafter, I indicated my intention to empanel a fresh jury and to commence the trial of the Accused on 21 May 2007. On 18 May 2007, I was informed that orders of the type now contained in the Notice of Motion would be sought by the Accused. The hearing of those applications proceeded on 21 and 22 May 2007.

7 Having regard to the subject matter of the applications, including a submission that adverse media publicity ought lead to a delay of the trial, both the Crown and the Accused sought an order prohibiting publication of the present applications. That non-publication order extends to the content of this judgment.

Application for Stay Conditional Upon Crown Paying Costs of Accused of the Aborted Trial

8 Mr Sutherland SC, for the Accused, submits that, in the circumstances of this case, it is both open and appropriate to stay conditionally the trial of the Accused unless and until the Commonwealth Director of Public Prosecutions pays the reasonable costs incurred by or on his behalf in relation to the aborted trial. The Crown submits that, in the circumstances of this case, such an order ought not be made.

9 I note that Mr Sutherland SC made clear that no application was made by the Accused for a certificate under s.6A Suitors’ Fund Act 1951. Accordingly, it is unnecessary for me to determine whether that Act is available where a jury trial for Commonwealth offences has been aborted: cf Commissioner of Stamp Duties (NSW) v Owens [No. 2] [1953] 88 CLR 168 at 169; Solomons v District Court of NSW [2002] 211 CLR 119 at 130 [9].

10 Mr Sutherland SC submits that it is not a prerequisite for such a conditional stay that the aborted trial giving rise to wasted costs occurred as a result of some fault or wrongdoing on the part of the Crown. Although acknowledging that this was the factual context in which the principle had been applied in past cases such as R v Fisher, Mr Sutherland SC submits that the power to grant such a stay arises in the exercise of the Court’s power to control abuse of process and to guard against unfairness in the trial process. He submits that fairness to the Accused simpliciter is the test.

11 He cites the judgment of the High Court of Australia in Jago v District Court (NSW) (1989) 168 CLR 23 referred to in R v Fisher at 631-632 [31]-[34].

12 In support of his submission that fault or wrongdoing on the part of the Crown is not required before such an order may be made, Mr Sutherland SC refers to Latoudis v Casey (1990) 170 CLR 534 at 543, where Mason CJ observed, in the context of a statutory costs regime for summary prosecutions, that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party, but are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by way of reason of the legal proceedings. It was submitted that these principles were capable of extension to the present circumstances.

13 Mr Sutherland SC acknowledges that the failure in this case was a failure of the “machinery of the State” (T38.52, 21 May 2007) with respect to the disqualified juror and that this state of affairs did not become known to the Crown, the Accused or the Court until 7 May 2007, the 25th day of the trial. Mr Sutherland SC advanced an argument that, relevant to the concept of fairness in this case was recent action taken by officers of the Australian Taxation Office which had the effect of preventing funds becoming available for the Accused’s defence. The evidence reveals that officers of the Australian Taxation Office issued an assessment and a notice under s.260-5 of Schedule 1 of the Taxation Administration Act 1953 (Cth) on 14 May 2007, with respect to a sum of money (about $512,000.00) to be paid to Prepaid Professional Administration Limited (“Prepaid”) pursuant to court proceedings in Queensland (Exhibit C1, Annexures EWC-01 and 02; Exhibit D2, paragraph 26ff). I will refer to this issue again later in this judgment.

14 For present purposes, however, I note that the evidence reveals a type of arrangement where these funds were to be directed to fund the Accused’s defence. Senior Counsel for the Accused points to the temporal coincidence in the issue of such a statutory notice which has the effect of freezing monies which would otherwise become available for use to fund the defence. Mr Sutherland SC advanced a series of submissions on this topic which are recorded in the transcript (T42-49, 21 May 2007). He submits that the timing of the issue of the notice, against the background of the trial of the Accused, gives rise at least to suspicion concerning the motivation of those who issued the notice. He acknowledges that litigation in another forum would be required to determine whether the assessment and notice were valid and justifiable. Mr Sutherland SC submits that I ought find that the action in issuing the assessment and notice in Queensland was done with the full knowledge by the Australian Taxation Office of the intended use of those funds for the defence of the Accused.

15 Mr Sutherland SC submits that, in the present circumstances, fairness requires the grant of a conditional stay as sought in paragraph 1 of the Notice of Motion. To the extent that the judgment of Fullerton J in Selim v R [2007] NSWSC 154 determined that fault or wrongdoing on the part of the Crown was a prerequisite to the grant of such a stay, Mr Sutherland SC submits that I ought not follow her Honour’s decision (T45-46, 21 May 2007).

16 Mr Sutherland SC submits in the alternative, that if fault on the part of the Crown is a requirement, it may be found in “the machinery of the State” and in the conduct of officers of the Australian Taxation Office which, he submits, is the Commonwealth agency which “underpins this prosecution”, by their action to deprive the Accused of funds which he otherwise expected to receive. He submits that, for this purpose, the Crown ought be understood in the “broadest sense of that term” (T46-47, 21 May 2007).

17 The Crown submits that the existence of fault or wrongdoing on the part of the Crown is a requirement for the grant of such a stay. So much is apparent from R v Fisher and the authorities referred to in that decision. The Crown submits that Fullerton J was correct in the statement of principles in Selim v R and that I ought follow her Honour’s decision in that respect.

18 The Crown submits that the recent trial was aborted through no fault of the Crown which, like the Accused, was unaware of the problem of the disqualified juror until the issue emerged following enquiries made on 7 May 2007.

19 With respect to actions of officers of the Australian Taxation Office on 14 May 2007 concerning the Queensland proceedings, the Crown submits that no foundation for an order arises from that conduct. The Crown points to the fact that Australian Taxation Office investigations had been on foot since November 2006 and that consequential action, such as the issue of an assessment and a s.260-5 Notice, could not have been unexpected. The Crown submits that it would have been extraordinary if the Australian Taxation Office had not taken steps to secure a debt said to be owing to the Commonwealth when monies were otherwise about to be released to Prepaid.

20 The Crown submits that no relevant link could be drawn between the present prosecution and the Queensland investigatory action. Nor was the Court in a position to, in some way, make an assessment of the validity or appropriateness of the assessment and notice issued in Queensland. Whichever way this issue is approached, the Crown submits that these events in Queensland do not constitute fault or wrongdoing on the part of the Crown so as to permit the making of an order in accordance with the principles in R v Fisher.

Decision

21 Mr Sutherland SC submits that I should not follow the decision of Fullerton J in Selim v R in certain respects. As a matter of comity, I should follow the decision of a single judge of this Court unless I am convinced that the judgement was wrong: Segal v Waverley Council (2005) 64 NSWLR 177 at 193 [57]; R v Petroulias (No. 1) at [44]-[45]. To the contrary, I am convinced that the decision of Fullerton J is correct. I agree entirely with it and will follow it in this case.

22 Fullerton J observed in Selim v R at [53] that the onus of establishing unfairness of a relevant kind rests on the Accused and that it is not the law that there is any necessary unfairness to an Accused by the mere fact of there being a second or even a third trial in respect of the same alleged criminal conduct. I adopt her Honour’s summary of relevant principles at [51]-[52].

23 I agree also with the analysis of Fullerton J at [57]-[58] that, on an application such as this, there needs to be demonstrated an identifiable injustice for which it can be sensibly said that the prosecuting authorities should be held responsible before a temporary stay is ordered, given that the effect of ordering the stay is to impose on the Crown the costs of previous proceedings before the Crown may be permitted to prosecute again. It is not necessary for an accused, on such an application, to establish fault in the sense of mala fides on the part of the prosecuting authorities. However, fault or error on the part of the Crown ought be established before such relief could be granted.

24 Applying these principles to the present case, I am not satisfied that the Accused has demonstrated an identifiable injustice for which it can be sensibly said that the prosecuting authorities should be held responsible.

25 I acknowledge the lengthy and complicated history of the present litigation, including the first trial before Sully J and a jury in 2005 where the jury could not agree and were discharged without verdict.

26 However, the circumstances in which the jury came to be discharged on 16 May 2007 disclosed no fault or wrongdoing on the part of the Commonwealth Director of Public Prosecutions, or any Commonwealth agency.

27 I do not consider that events in Queensland, including the issue of an assessment and a s.260-5 Notice on 14 May 2007, assists the Accused on the present application. The evidence does not demonstrate that this action was, in some way, related to the trial and the conduct of the Crown in the trial. The taking of such action by the Australian Taxation Office follows investigatory steps taken in and after November 2006. No basis is revealed in the evidence before me for a finding that such action by the Australian Taxation Office was, in some way, invalid, improper or otherwise inappropriate. I do not consider that this aspect demonstrates any fault or wrongdoing on the part of the Commonwealth Crown. Nor am I satisfied that this feature gives rise to an identifiable injustice for which it can be sensibly said that the prosecuting authorities should be held responsible.

28 I do not consider that Latoudis v Casey assists the Accused on the present application. The statement of Mason CJ which is relied upon arises in the context of a statutory scheme permitting orders for costs to be made in summary criminal proceedings. As Dawson J noted in Latoudis v Casey at 557, historically, in criminal proceedings the basic common law principle is that the Crown neither pays nor receives costs. This principle is well recognised: R v Mosely (1992) 28 NSWLR 735 at 738-9; Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523 at 531-2, 536.

29 The conditional stay costs-ordering power referred to in R v Fisher arises in a context where there is no statutory power to order costs. In my view, a fair reading of the decision in R v Fisher demonstrates that fault or wrongdoing on the part of the Crown (even if unintentional) is a required element for the grant of a conditional stay of this class: R v Fisher at 626 [2]-[4], 633-634 [41]-[47]. The fairness test to be applied in such cases must take into account whether such fault or wrongdoing, in the R v Fisher sense, is demonstrated in the particular case.

30 In my view, fault or wrongdoing on the part of the Crown is not demonstrated in the present case. I decline to make an order as sought in paragraph 1 of the Notice of Motion.

Application for Temporary Stay Arising From Media Publicity

31 On 16 May 2007, the Court of Criminal Appeal delivered judgment allowing the appeal from my decision to discharge the absent juror and to continue the trial under s.22 Jury Act 1977 with the remaining 11 jurors constituting the jury. The judgment of the Court of Criminal Appeal was published as was my judgment with respect to the same topic. This was done with the knowledge of the Crown and the Accused and without any submission that publication of those judgments should be, in some way, curtailed (T1420, 16 May 2007).

32 On the evening of Wednesday, 16 May 2007, an item was broadcast on ABC Radio on the “PM” programme concerning the aborted trial. It is this broadcast, and this broadcast only, which gives rise to an application by the Accused for a temporary stay of the commencement of the trial for two months. Mr Sutherland SC has not submitted that any other media publicity, print or electronic, following the decision of the Court of Criminal Appeal on 16 May 2007 warrants the making of such an order.

33 The item broadcast on the “PM” programme was in the following terms:

“MARK COLVIN: The retrial of former First Assistant Tax Commissioner Nick Petroulias was aborted today.

It was called off after one of the jurors was found to have been unlawfully empanelled.

Mr Petroulias is charged with three counts, including defrauding the Commonwealth of as much as $1 billion.

His first trial, in 2005, ended with a hung jury.

And in another twist to this long running saga PM has learned that the group bankrolling Mr Petroulias has been hit with a big tax assessment.

Emma Alberici has our report.

EMMA ALBERICI: The New South Wales Court of Criminal Appeal discharged the remaining 11 jurors today in the Supreme Court case against former First Assistant Tax Commissioner, Nick Petroulias.

The rogue juror was a disqualified driver caught speeding earlier this month. He was refused bail on a string of driving charges.

Under the Jury Act that made him unfit to become a juror in the first place and forced the judge to cancel the trial.

This was the 25th day of Mr Petroulias's retrial. His first trial in 2005 ended with a hung jury.

It's understood the entire legal process, which began with his arrest in 2000, has cost Nick Petroulias $9 million. The Tax Office, which has funded the bulk of the prosecution's case, is thought to have forked out more than $30 million.

PM can reveal that Mr Petroulias's legal costs have been covered by Pleroma, an investment company based in Malaysia.

That company has been embroiled in a legal dispute in Queensland where the relationship with Mr Petroulias first emerged.

Pleroma does business with an Australian based agent and trustee called Prepaid Professional Administration or PPPA.

PPPA owes Pleroma $800,000, money that was supposed to be channelled to Nick Petroulias's legal costs.

This has all become public knowledge in the past month, and coincidentally, this week, as it appeared that PPPA was about to hand over to Pleroma its $800,000, it received an assessment from the Tax Office alleging that that money and other cash it's collected in Australia is in fact taxable income rather than money held in trust on behalf of others. The Tax Office is asking for more than $1 million.

In December last year the Tax Office launched a series of raids in Sydney, Brisbane, Melbourne, Adelaide and in New Zealand of 200 people who'd done business with Nick Petroulias over the past 10 years. At the time, his counsel, Stephen O'Bryan said Petroulias was a man who is ‘a high priority target for the Australian Tax Office.’

Petroulias denied he'd been involved in anything that would merit attention from the Tax Office. Six months later, the Tax Office is yet to detail its latest concerns against its former big gun.

The Tax Office's bribery and fraud case against Mr Petroulias will now go to a third trial which is due to start next Monday.

MARK COLVIN: Emma Alberici.”

34 In support of the present application, the Accused has tendered a Media Analysis Report dated 21 May 2007 (Exhibit D1). The objective of the report was to determine the listening audience of the ABC network at 6.38 pm on Wednesday, 16 May 2007 when the relevant broadcast was made on ABC Local Radio (702AM). The present application was approached upon the basis that the same item was broadcast after 5.10 pm on the same evening on Radio National (576AM). According to the report tendered for the Accused, AC Nielsen Media Information suggests that, within the Sydney market, the ABC is the second largest radio station in terms of listener numbers from both commercial and government run radio networks. In the Sydney radio market, the report indicates that 702AM attracts a share of the market between 10.9% and 11.7% between 4.00 pm and 7.00 pm on weeknights with 576AM attracting between 2.1% and 2.3% of the market in the same period. The largest audience component lies within the age groups 40-54 years and 55+ years.

35 Mr Sutherland SC submits that the broadcast contained material prejudicial to the Accused, so that an adjournment in the order of two months ought be granted to avoid the risk of prejudice in the minds of a future jury. He submits that a number of “imputations” arose from the broadcast (T48-53, 21 May 2007). These included:

(a) that the Accused had defrauded the Commonwealth “of as much as $1 billion” ;

(b) that the legal process has cost the Accused $9 million, which the reasonable listener might conclude was the product of the $1 billion allegedly defrauded from the Commonwealth;

(c) that the group “bankrolling” the Accused had been “hit with a big tax assessment” thereby supporting the view that ill-gotten gains had been used to fund the defence of the Accused;

(d) that the Accused and others had been the subject of ongoing Australian Taxation Office investigations since late 2006 which had led to the sum of $800,000.00, intended to be “channelled” to the Accused’s legal costs, being demanded by the Australian Taxation Office as “taxable income rather than money held in trust on behalf of others” ;

(e) that large and organised raids by the Australian Taxation Office on the Accused and other persons had taken place with the Accused said to be “a high priority target for the Australian Tax Office” ;

(f) that “channelling” of large sums of money to the legal costs for the Accused, from sources which the Australian Taxation Office regarded as being tainted, attached a sinister label to the matters outlined in the broadcast.

36 Mr Sutherland SC noted that a transcript of the item was retrievable via the internet on the “PM” website for any person who went looking for it.

37 The Crown submits that the application was based upon a radio broadcast aired, at most, twice on the evening of 16 May 2007, and that there was nothing in the broadcast which could not be cured by appropriate directions from the trial Judge. In any event, the Crown submits that, properly understood, the broadcast did not contain the adverse imputations claimed by the Accused. It disclosed that the Accused’s legal costs had come from litigation funding, and not from a reservoir of ill-gotten gains.

38 The Crown submits that it was a transient electronic broadcast, to be contrasted with a newspaper article with a potential for wider and ongoing dissemination. With respect to the transcript of the programme contained on the “PM” website, the Crown submits that an appropriate direction to the jury informing them of the obligation under s.68C Jury Act 1977 would guard against such material being accessed, together with appropriate general directions.

Decision

39 The relevant principles to be applied on an application such as this are not in doubt. A person charged with a criminal offence is entitled to a fair trial by a tribunal which is both independent and impartial: R v Yuill (1993) 69 A Crim R 450 at 452. In each case where an application is made for a stay of proceedings because of adverse publicity, there is a need for the Court to make a judgment on the particular facts before it: R v Yuill at 454. The test of fairness which governs an application such as the present involves balancing the interests of the Accused and of society in the fair trial of allegations of criminal offences and the interests of society to bring to trial, without delay, persons accused of such offences. The public has a high interest in the timely disposition of charges of serious offences and in the conviction of those who are found guilty of crime: R v Yuill at 453.

40 Courts will assume that jurors, properly instructed, will accept and conform to the direction of the trial Judge to decide the case solely on the evidence placed before them in the Court. There is an increasing body of judicial opinion to the effect that whatever pretrial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled: R v Yuill at 453-454. A question remains in each case whether the intensity, proximity and nature of the media coverage of the particular accused, or the particular circumstances, is such as to occasion the risk of unfairness to the accused so as to prejudice the accused’s right to a fair trial for a time after the publicity. A judgment is called upon in each case having regard to the particular facts which are proved: R v Yuill at 454.

41 It is not necessary for the Accused, on the present application, to demonstrate that he would not have a fair trial. It is sufficient if there is such a risk: Re K [2002] NSWCCA 374 at [9]-[10].

42 In assessing whether such a risk exists, it is appropriate to have regard to statements concerning the possible effect of adverse media publicity upon jurors. I have already referred to R v Yuill at 453-454 in this respect. In The Queen v Glennon (1992) 173 CLR 592, Mason CJ and Toohey J at 603 observed that the possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial, and continued:

“The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch [(1987) 164 CLR, at 74] in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them.”

43 In the same case, Deane, Gaudron and McHugh JJ said at 623:

“The central prescript of our criminal law that no person shall be convicted of a crime otherwise than after a fair trial according to law dictates that an accused is entitled to be protected from an unacceptable and significant risk that the effect of prejudicial pre-trial publicity will preclude a fair trial. Ordinarily, that risk will be obviated by appropriate and thorough directions and, if the circumstances also require it, a temporary stay for the minimum period adjudged necessary for the pre-trial publicity to abate. The balancing of the legitimate interests of the accused and the prosecution will, in almost every case, mean that if the proceedings are to be stayed at all, they should only be stayed temporarily and for the minimum period necessary.”

44 In John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344, Spigelman CJ (Handley JA and MW Campbell AJA agreeing) said at 366 [102]-[103]:

“As set out above, his Honour expressed his concern that a future trial judge could not effectively ensure a fair trial by giving the jury directions, particularly as this may highlight the issues which establish the possibility of prejudice. In this regard, in my opinion, his Honour was proceeding on a basis which has, in recent years, come to be rejected by the courts in relevantly analogous case law.

There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them.”

45 In approaching this application, it is pertinent to observe that Mr Sutherland SC, in the course of his opening to the discharged jury on 29 March 2007 adverted to past media publicity. He said (T219-220):

“This case is intriguing because the Crown might have, I hasten to say they haven't, they might have run a case, if these rulings were wrong and people claimed deductions they weren't entitled to, and the tax office wrote off mega dollars. No doubt you will find in the documents that early on there were considerable fears held that there had been actual loss by the Commonwealth. You will see estimates of millions of dollars. This is an unusual case for a number of reasons. I will come back to it in a moment. You have already been told that this is a retrial. The jury were discharged without verdict. It is a retrial. You are not revisiting something that somebody else has decided.

It is also unusual because there may well be some of you, I don't know whether there are or not, that remember the name Petroulias or remember the circumstances of his arrest. He was arrested in a blaze of publicity in March of 2000 at Melbourne airport. The Crown said what he said to the officers at the time. There are cases in which the law seeks to avoid any prejudice from the situation where there might have been some notoriety or publicity attaching to a case by sometimes delaying a trial because the adverse publicity will tone down and people think about things. I am now planting in your heads that he had some publicity. Those of you who may well have seen it, you won't be effected by anything you may have read in the past and you certainly won't go searching to look up things that were said.

This man was arrested in a blaze of publicity because there were great fears that this was the greatest defrauding of the Commonwealth since the Constitution. The Crown could have run a case that what this man did was cause loss to the Commonwealth and they could have trotted out figures, and if they wanted to they could have tried to run that sort of a case.”

46 Mr Sutherland SC referred again to the arrest of the Accused in a “blaze of publicity” in his opening (T244.54) and in his cross-examination of Mr Ingersoll (T306.39). In the course of submissions in the present application, Mr Sutherland SC observed that he did not know if he would seek to open to the jury in the same way at the next trial (T50.22, 21 May 2007).

47 I have considered the content of the broadcast upon which this application is based. I accept the Crown submission that radio broadcasts of this type are transient in nature. I do not consider that the content of the broadcast is especially prejudicial to the Accused, in any event.

48 I do not consider that there is a risk of an unfair trial as a result of this publicity so that the commencement of the trial ought be adjourned for a period of two months. The bringing of the present applications has caused some delay, and thus a temporal gap will result between the broadcast and the time when any jury will be empanelled. Having regard to the directions which I will give as trial Judge and the provisions contained in s.68C Jury Act 1977, I do not consider that an order ought be made, upon this basis, in accordance with paragraph 2 of the Notice of Motion.

Application for Adjournment to Permit Accused to Secure Funds for Legal Representation at Trial

49 The Accused seeks an adjournment of the trial for a period of two months to enable him to secure funding for his private legal representation at the trial. The Crown opposes this application, contending that there is no evidence to support a finding that the Accused is presently unable to obtain funds for his defence.

50 The present application is not brought strictly in accordance with the principles in Dietrich v The Queen (1992) 177 CLR 292 at 315 whereby the Accused claims that he is indigent and, through no fault of his own, is unable to obtain or maintain legal representation for his trial. Rather, the application is of the type identified by Barr AJ in R v Yuill (unreported, 1 November 1995, BC9501744, at page 23) where the Accused makes application for an adjournment of the trial to allow steps to be taken to ensure that monies are available to fund his defence.

51 This is not the first application of this type to be made by the Accused before me. On 2 March 2007, I adjourned the commencement of the trial from 5 March to 19 March 2007: R v Petroulias (No. 11). On 9 March 2007, I summarised the information provided to me on this point in the course of another judgment: R v Petroulias (No. 12). On 16 March 2007, I refused a further application by the Accused for an adjournment upon this basis, but adjourned the trial until 26 March 2007 on other grounds: R v Petroulias (No. 13). The trial commenced on 26 March 2007.

52 The evidence before me in March 2007 revealed that the sum of $300,000.00 per month was required to fund the defence of the Accused by senior and junior counsel (from Sydney) and two solicitors (from Melbourne). The evidence and submissions before me on the present application confirm that $300,000.00 per month has been required and expended on the Accused’s defence at trial. In March 2007, the Crown estimated that the trial would take three months and Mr Sutherland SC gave a four-month estimate.

53 With respect to this application, the Accused relies upon affidavits of his solicitor, Edmond William Coady, sworn in March 2007 in the context of applications determined by me in judgments Nos. 11, 12 and 13. In addition, the Accused relied upon a further affidavit of Mr Coady sworn 21 May 2007 and an affidavit of Dr William Peter Boyd sworn 21 May 2007. The Crown did not require the deponents for cross-examination.

54 The Crown relies upon an affidavit of Mr Coady sworn 18 May 2007 (Exhibit C1) and tendered HSBC bank statements for Prepaid for a period between June 2005 and November 2006 (Exhibit C2). In addition, the Crown relied upon the transcript of evidence and argument during earlier applications before me between 1 and 16 March 2007 (Exhibit C3).

55 Mr Sutherland SC submits that the evidence reveals that the Accused has, for some years, relied upon litigation funding from persons in Malaysia. It appears, on the evidence, that original financial support for the Accused emanated from a Mr Joseph Bayoud (now deceased) from Malaysia. In December 2005, Pleroma Limited (“Pleroma”) became involved “as the principal investor in litigation funding arrangements involving Mr Petroulias, and his legal conflict with the Australian Taxation Office and the Commonwealth Director of Public Prosecutions” (Affidavit of Dr Boyd, 21 May 2007, paragraph 5). Dr Boyd stated that he “entered into that agreement on the instructions of the descendents of Mr Joseph Bayoud, in accordance with what I, and other members of Mr Bayoud’s family had understood his wishes to be. Prior to that time, the late Mr Bayoud had an arrangement with Mr Petroulias by which funds were made available to Mr Petroulias as part of a litigation funding arrangement. I was not a party to that arrangement”.

56 The evidence does not reveal the precise nature of the commercial arrangement between Pleroma and the Accused in which Pleroma was “the principal investor”. The concept of litigation funding ordinarily, if not exclusively, arises in the context of civil litigation. In the course of submissions in the present application, I enquired of Mr Sutherland SC as to whether the involvement of Pleroma was “litigation funding” in the sense encountered in civil litigation or represented a type of loan. I did not receive an answer to the question (T28-29, 21 May 2007; T86-87, 22 May 2007).

57 However the arrangement be characterised, Mr Sutherland SC submits that the affidavits of Mr Coady and Dr Boyd reveal that Malaysian sources, most recently Pleroma, have provided financial assistance for the defence of the Accused. Dr Boyd states that, as at 15 September 2006, the total contribution of Pleroma to the “litigation funding arrangement” was in the order of $A5.2 million taking into account an additional commitment made by an agreement of that date.

58 As mentioned previously, the evidence before me in March 2007 reveals that Mr Coady had calculated fees and expenses for senior and junior counsel (from Sydney) and two solicitors (Mr Coady and Mr Lambros) from Melbourne at the rate of $300,000.00 per month.

59 For reasons outlined in my judgments Nos. 11, 12 and 13, and in the affidavit material before me on the present application, monies said to have been dedicated by Pleroma for the purpose of the Accused’s funding for his criminal trial have become enmeshed in civil litigation in Queensland. The sum of $785,000.00 is caught up in that process. Until recent orders of the Supreme Court of Queensland, this money was not available to be paid to Prepaid to then be utilised to fund the defence of the Accused. In circumstances where a sum of about $512,000.00 was to become available to be paid to Prepaid on 14 May 2007, officers of the Australian Taxation Office issued a s.260-5 Notice preventing the money being made available.

60 Mr Sutherland SC submits that the unchallenged evidence of Mr Coady and Dr Boyd reveals a willingness by Dr Boyd, for Pleroma, to consider a further payment for the funding of the Accused’s legal representation at the forthcoming trial. However, Dr Boyd states that a period of some two months will be required to allow this possibility to be properly explored with the relevant Malaysian interests (Boyd affidavit, paragraphs 15 and 16). Dr Boyd states that he will confer with Mr Scott, the solicitor for Pleroma, to “consider the legal aspects of any further advances which might be made by Pleroma Limited to or for the benefit of Mr Petroulias and to consider proposed litigation in Queensland” (paragraph 15).

61 Accordingly, Mr Sutherland SC submits that funds gathered by the Accused from various sources have been utilised for his defence to date. Other funds which were to be used for this purpose are tied up in Queensland as a result of actions taken there by officers of the Australian Taxation Office. In these circumstances, he submits that it is fair and reasonable that the commencement of the trial be deferred to allow the Accused to make appropriate arrangements with Dr Boyd and Pleroma for future funding.

62 The Crown submits that the funding arrangement appears to be “an artificial and contrived arrangement devoid of any apparent commercial reality” (T99.41, 22 May 1007). By reference to the HSBC bank account records, the Crown submits that the sum of $785,000.00 was transferred overseas “by some strange coincidence” within a few days after the raids by the Australian Taxation Office (T60.15, 21 May 2007). The Crown points to variations in the explanations provided in evidence of Mr Coady and submissions made on behalf of the Accused during the applications in March 2007 concerning the funds said to have been earmarked by Pleroma, through Prepaid, for the purpose of funding the Accused’s defence at trial.

63 Even if the arrangement between Pleroma, Prepaid and the Accused is entirely above board, however, the Crown submits that there is no evidence at all before the Court on the present application from the Accused to the effect that he is not able to obtain funding for his representation at present from any other source.

64 An affidavit of the Accused sworn 8 March 2007 in the Prepaid proceedings before the Supreme Court of Queensland is exhibited to the affidavit of Mr Coady sworn 8 March 2007 (part Exhibit D5). That affidavit of the Accused is in evidence before me as part of the history of the litigation. Both the Crown and the Accused submit that I am entitled to have regard to it, although it is not an affidavit sworn in support of the present application and the Accused has not made himself available for cross-examination upon it.

65 The Crown notes that, at paragraph 20 of the affidavit, the Accused states that “at this time [8 March 2007] I do not have other funds available to me for payment of costs to solicitors and counsel”. At paragraph 21, the Accused states that “without these funds [the funds tied up in the Queensland proceedings] I will not be able to complete my obligations to counsel and solicitors engaged for that trial, and I am in serious risk of being unrepresented”.

66 The Crown notes that there is no affidavit on the present application in which the Accused deposes to a current inability, as at May 2007, to fund private legal representation from sources other than Pleroma or those tied up in the Queensland Supreme Court proceedings. The Crown submits that the affidavit of Mr Coady sworn 18 May 2007 (Exhibit C1) discloses that arrangements with the Accused for funding the trial which commenced on 26 March 2007 involved “the provision by him of approximately $600,000.00 together with anticipated recoveries from the two actions in Brisbane”. The Crown points to the evidence of Mr Coady (T1011, 16 March 2007, Exhibit C3) that monies which had been received (apart from those associated with Pleroma and the Queensland proceedings) came from Ms Denise Clark, an associate of the Accused from New Zealand.

67 It is common ground that Ms Clark has been present in Court during the aborted trial on a regular basis over a period of about three weeks (T98, 22 May 2007). I infer that she has an ongoing close association with the Accused.

68 The Crown points to the absence of evidence from the Accused and Ms Clark concerning his present ability, or inability, to provide funds for his defence from sources other than Pleroma and the sums tied up in Queensland.

69 Mr Sutherland SC submits that it is understandable that the Accused may not wish to expose himself to cross-examination on the present application concerning his financial dealings. In response, the Crown points out that the Accused was prepared to swear an affidavit on 8 March 2007 in the Prepaid proceedings in the Supreme Court of Queensland. Further, it was common ground that the Accused gave evidence before the Administrative Appeals Tribunal in 2006, and was cross-examined extensively with respect to a taxpayer’s involvement with warrant arrangements with Prepaid (T103-104, 22 May 2007). The Crown submits that the willingness of the Accused to give evidence before the Administrative Appeals Tribunal in 2006, and to swear an affidavit for use in the Supreme Court of Queensland in March 2007, is not consistent with the submission that there may be good reasons for him not wishing to give evidence on the present application.

70 The Crown submits that the Accused has not established a foundation for an adjournment to be granted to permit him to secure funds for his legal representation at trial. The Crown submits that there is no evidence to support a finding that the Accused is presently incapable of funding such representation. The Crown submits that “this whole question of the funds available to the Accused lacks evidentiary support and cogency in order to enable [the Court] to form any view to the effect that the Accused is lacking in funds to enable him to continue to be represented in the trial” (T58.54, 21 May 2007).

Decision

71 In determining this part of the application, it is appropriate to bear in mind that the Accused bears the onus of establishing a factual foundation for the adjournment which he seeks. Mr Sutherland SC did not submit to the contrary (T89, 22 May 2007).

72 The Crown has raised questions concerning the bona fides of the arrangement said to exist between Pleroma and the Accused to fund his defence in the present criminal proceedings. It is the case that attempts to explain this arrangement through the evidence of Mr Coady in March 2007 and in submissions on behalf of the Accused has occasionally been accompanied by a lack of clarity. That said, it has been contended consistently that an arrangement of some type is in place between the Accused and Pleroma to assist his funding for the trial. On the state of the evidence, and in the absence of any cross-examination of Dr Boyd and any evidence from the Accused, I am not in a position to conclude that no such arrangement exists, however unusual it may appear as a so-called “litigation funding arrangement”.

73 The evidence before me, on the present application, discloses that Prepaid was in the course of recovering monies in the Queensland Supreme Court proceedings which thereafter would have been utilised to assist the funding of the Accused’s defence at trial. However, those funds are not available at this time, as a result of action by officers of the Australian Taxation Office in Queensland. I am in no position to determine the validity and appropriateness of action taken by the Australian Taxation Office with respect to these funds at this time. For present purposes, I accept, as I must, the historical fact that this event has occurred. It appears that, in due course, the disputed claims between the parties will be determined in other curial proceedings.

74 It is the objective fact, however, that those monies are not available at this time to assist the funding of the Accused’s defence.

75 It may be concluded, on the evidence, that some time is required for Dr Boyd and Pleroma to consider whether further funds ought be extended to the Accused for his defence.

76 The difficulty for the Accused, however, is that there is no evidence from him or from Ms Clark to the effect that there is no other source of funding available to him at the present time. It is apparent that Ms Clark was able to obtain a substantial sum, in the order of $600,000.00, to assist with the defence of the Accused in mid-March 2007. The matters deposed to by the Accused in his affidavit of 8 March 2007 were overtaken by events, which saw the obtaining of a substantial sum to assist in his defence.

77 I do not accept that Mr Sutherland SC’s submission that there may be good reasons for the Accused declining to give evidence on the present application. After all, he swore an affidavit of 8 March 2007 concerning the same subject matter in the Queensland proceedings and gave evidence in proceedings before the Administrative Appeals Tribunal in 2006.

78 It is common (if not essential) for accused persons making Dietrich or Yuill applications to give evidence as to their financial circumstances.

79 As I have observed, the Accused does not make a Dietrich application. However, when I raised with Mr Sutherland SC this question early in the hearing of this application, he submitted that the Accused would assert that he is indigent in the Dietrich sense “on, at least, a temporary basis” (T10.14, 21 May 2007) and agreed that “there is a type of temporary Dietrich application and that he’s indigent for the time being” (T10.30-34, 21 May 2007).

80 Thereafter, the application proceeded with no evidence being adduced from the Accused on this point. The Crown opposed the application upon this basis, as well as other grounds. In the course of submissions, I raised with Mr Sutherland SC the consequence of the absence of evidence from the Accused on this aspect. He acknowledged that it was necessary for the application to be determined upon the evidence as it stands and that does not include any evidence from the Accused or Ms Clark on this point (T87, 22 May 2007).

81 In my view, it was open to the Accused to give evidence on the present application. I must approach my present decision upon the basis that he has made a considered decision not to give evidence on the application on a critical issue. It does not seem to me that there is any legitimate apprehension that could arise with respect to his giving evidence and exposing himself to cross-examination. In any event, the provisions of s.128 Evidence Act 1995 may have been called in aid if the Accused saw fit.

82 The onus lies upon the Accused to satisfy the Court that the trial ought be adjourned. The evidence does reveal the existence of an arrangement between Pleroma and the Accused with respect to litigation funding. However, the evidence does not reveal that this is the sole source of funding available to the Accused at this time to assist with his defence at the forthcoming criminal trial. The evidence indicates that the Accused and Ms Clark were able to obtain the sum of $600,000.00 in March 2007 from sources independent of Pleroma and the Prepaid Queensland litigation. There is no evidence that the Accused is unable presently to take similar steps.

83 On the evidence before the Court on this application, I am not satisfied on the balance of probabilities that the Accused is unable to presently fund his defence so as to justify an adjournment of the trial for a period of two months.

Conclusion

84 Having regard to these findings, what course of action should the Court take? It is the case that the trial which commenced on 26 March 2007 came to an abrupt end for reasons beyond the control of the Crown or the Accused. It is the case that monies from the Queensland proceedings, which may have become available to the Accused to fund his defence, are not available at the present time. It is the case, however, that the evidence does not demonstrate, on the balance of probabilities, that the Accused has no means of obtaining funds at the present time for his defence at the forthcoming trial.

85 In all the circumstances, I do not consider it to be appropriate to refuse the adjournment application entirely and to move without delay to empanelling a jury for the purpose of the trial. I propose to grant the Accused an adjournment of the trial until Wednesday 6 June 2007. The effect of this course will be that the Accused will have three weeks from the time the trial was aborted on 16 May 2007 until the commencement of the next trial. He will have two clear weeks from today to prepare for the trial. In all the circumstances, I am satisfied that this approach accords with the justice of the case, and with the public interest in the timely disposition of charges of serious offences: R v Yuill at 453. Although I have rejected the Accused’s application based upon media publicity, this adjournment will also serve the purpose of extending the time gap between the relevant broadcasts and the empanelment of a jury.

86 The trial of the Accused is fixed to commence at 10.00 am on Wednesday, 6 June 2007. The Accused’s bail is continued until that time and date.

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