R v Petroulias

Case [2005] NSWCCA 75

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v Nikytas Nicholas PETROULIAS [2005]  NSWCCA 75

FILE NUMBER(S):
2005/266

HEARING DATE(S):               1 March 2005

JUDGMENT DATE: 11/03/2005

PARTIES:
REGINA
Nikytas Nicholas PETROULIAS

JUDGMENT OF:       Spigelman CJ Mason P Hunt AJA   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          70076/02

LOWER COURT JUDICIAL OFFICER:     Sully J

COUNSEL:
Appellant: P Hastings QC/ C Hoy
Respondent: I Temby QC/ N Clelland SC/
  C Livermore

SOLICITORS:
Appellant: Commonwealth Director of Public Prosecutions
Respondent: Coadys Barristers and Solicitors
c/- Watsons Connaught Offices

CATCHWORDS:
Crimes Act 1914 (Cth) s29D  - charge of defrauding the Commonwealth - taxation fraud - risk to revenue - Pt IVAA Taxation Administration Act 1953 (Cth) - Private Rulings - loss of ability to litigate - s170BB Income Tax Assessment Act 1936 (Cth) - mixed question of fact and law - directions to jury - arguability in law - permanent stay of criminal prosecution - fair trial   (D)

LEGISLATION CITED:
Evidence Act 1995 s80
Crimes Act 1914 (Cth) s29D
Income Tax Assessment Act 1936 s170BB

DECISION:
Appeal upheld.  Stay set aside.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2005/266

SPIGELMAN CJ
MASON P
HUNT AJA

Friday 11 March 2005

REGINA  v  Nikytas Nicholas PETROULIAS

Judgment

  1. SPIGELMAN CJ & HUNT A-JA :  We agree with Mason P, for the reasons he has given, that the decision of Sully J to grant a permanent stay in this case should be set aside.  However, the view we have formed as to how the trial should be conducted in relation to the charge of defrauding the Commonwealth differs sufficiently from that proposed by the President that it is necessary to state our own reasons as to the nature of the issue posed and how it should be put to the jury.

    Defrauding the Commonwealth

  2. The first count in the indictment is currently in these terms:

    Between 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.

  3. The three categories of fraud identified by Toohey and Gaudron JJ in Peters v TheQueen (1998) 192 CLR 493 at [30], are the intentional creation of a situation in which the accused:

    (1)deprives another person of money or property, or

    (2)puts the money or property of that other person at risk, or

    (3)prejudicially affects that person in relation to some lawful right, interest, opportunity or advantage,

    knowing that he has no right to deprive that person of that money or property or to prejudice his or her rights. (See also McHugh J to the same effect, at [73].)

  4. In previous proceedings in the Court of Appeal relating to the case against this accused — Wills v Petroulias (2003) 58 NSWLR 598 — these three categories were described, respectively, as an actual loss of revenue, an actual risk

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Details
AGLC
R v Petroulias [2005] NSWCCA 75
Case
[2005] NSWCCA 75
Decision Date

CaseChat Overview and Summary

In this case, the Director of Public Prosecutions for the Commonwealth appeals against the decision of Sully J, who permanently stayed proceedings on a particular count in a proposed indictment against Petroulias. The charge against Petroulias is for defrauding the Commonwealth under section 29D of the Crimes Act 1914(Cth), which pertains to taxation fraud. The central issue revolves around the interpretation and application of private rulings issued under Part IVAA of the Taxation Administration Act 1953(Cth) and their subsequent reliance in the context of section 170BB of the Income Tax Assessment Act 1936(Cth). The court needed to determine whether the case presented by the Commissioner was sufficiently arguable to warrant a criminal prosecution, considering the arguability in law and the potential impact on Petroulias' right to a fair trial.

The court considered whether the determination of whether the private rulings were arguably wrong was a factual issue to be decided by the jury or a legal issue for the judge. The court held that the question of whether the private rulings were arguably wrong was a mixed question of fact and law, to be determined by the jury. The court also examined the admissibility of evidence concerning the interpretation of statutory provisions, holding that evidence from sources such as courts or experts could be admissible to assist the jury in determining the factual issue, provided that there had been no changes in the relevant statutory provisions since the private rulings were made. The court noted that the ultimate issue rule had been abolished by section 80 of the Evidence Act 1995, allowing the jury to be assisted by such evidence. However, opinion evidence should be expressed in terms of correctness rather than arguability.

The court concluded that the evidence presented by the Crown was sufficient to give rise to a real issue as to whether the risk to the revenue was such that the Commonwealth was deprived of something of value. However, the trial judge was still entitled to form his own judgment on the issue of whether the case put by the Commissioner was sufficiently arguable. The court allowed the appeal and set aside the order permanently staying the proceedings, directing that the matter be returned to the trial judge for further consideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is for these reasons that we are of the opinion that whether an arguable case exists that the private rulings were wrong is a fact in issue in the trial to be determined by the jury. Evidence admissible in relation to this issue Related to this issue as to whether the decision is one for the judge or the jury is the admissibility of evidence upon which the decision is to be based. In our opinion, but subject to the Crown being permitted to enlarge its particulars in the light of the decision now given by the Court of Criminal Appeal, there is no bar to the admission of relevant statements by courts or others as to the interpretation of these provisions merely because they may have come into existence after the time when the private rulings were made. What the law was at that time is an objective matter which the Crown must prove. That objective fact has nothing to do with any state of mind on the part of the accused which may be relevant to his mens rea. There is therefore no need to restrict the admissible material to material which was in existence at that relevant time. The issue as to what the law was at the relevant time may be proved by reference to what has since been held to be the law, provided that there has been no change in the relevant statutory provisions in the meantime. It is presumed to have been the law all along. Although the Crown, on its particulars, does not propose to rely on expert evidence concerning this fact in issue, such would be admissible. The ultimate issue rule has been abolished by s 80 of the Evidence Act 1995, and the jury may be greatly assisted by such evidence. There is one caveat to the use to be made of opinion evidence on this issue. That evidence should, so far as is possible, be expressed as being that the Commissioner’s case on deductibility and/or fringe benefits tax was or was not correct, rather than that it was or was not arguable. Mason P has outlined the evidence relied upon by the Crown to establish the proposition that the “arguably wrong” test could be satisfied. It is unnecessary to repeat the material here. It is sufficient to say that, for the purposes of an application for a permanent stay, the material referred to is sufficient to give rise to a real issue as to whether or not the risk to the revenue was such that the Commonwealth was in fact deprived of something of value. We do not, however, intend by these remarks to suggest that the trial judge — particularly in the light of such evidence to the contrary on which the accused may wish to rely in this regard — would not be entitled to form his own judgment on the issue of law we have identified in pars 12 and 17, supra, namely whether or not the case to be put by the Commissioner is sufficiently arguable to demonstrate the possibility that the Commissioner would win a case in which he was allowed to dispute the private ruling. MASON P: The Director of Public Prosecutions for the Commonwealth appeals against the order of Sully J made on 21 February 2005 permanently staying proceedings on a particular count in a proposed indictment. The charge is brought pursuant to s 29D of the Crimes Act 1914(Cth) which provides:A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence.

Decision

Reasons for decision

SPIGELMAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ

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