R v Petroulias (No. 1) - [2006] NSWSC 788

No judgment structure available for this case.

Reported Decision:
177 A Crim R 153
177 IR 153
217 FLR 242

New South Wales

Supreme Court

CITATION: R (Cth) v Petroulias (No. 1) [2006] NSWSC 788

HEARING DATE(S): 20 July 2006, 21 July 2006, 24 July 2006, 25 July 2006, 26 July 2006, 27 July 2006, 28 July 2006

JUDGMENT DATE :
8 August 2006

JUDGMENT OF: Johnson J at 1

DECISION: 1. The application to quash the first count on the indictment is refused; 2. The application for a permanent stay of all or any of the counts on the indictment is refused.

CATCHWORDS: CRIMINAL LAW - indictment alleging offences under ss.29D, 70 and 73 Crimes Act 1914 (Cth) - discharge of jury unable to agree at first trial - Crown determines to proceed by way of retrial - application before second trial to stay or quash s.29D count on basis that it is foredoomed to fail - nature of test on foredoomed to fail ground - argument by reference to evidence adduced at first trial and decisions made by judge at first trial - use of decisions made at first trial in determining application to stay or quash before second trial - held: s.29D count not foredoomed to fail - application to stay all counts on grounds of abuse of process - applicable principles - held: permanent stay refused - application to quash s.29D count on duplicity ground - s.29D count based upon single criminal enterprise - held: s.29D count not bad for duplicity

LEGISLATION CITED: Crimes Act 1914 (Cth)
Criminal Procedure Act 1986
Criminal Appeal Act 1912
Jury Act 1977
Evidence Act 1995
Service and Execution of Process Act 1992 (Cth)

CASES CITED: Petroulias v Wills (2002) 174 FLR 258
Petroulias v Wills (2003) 138 A Crim R 182
Wills v Petroulias (2003) 58 NSWLR 598
Wills v Petroulias (No. 2) (2003) 58 NSWLR 618
Petroulias v Wills (2004) 56 ATR 608
R v Petroulias (2005) 62 NSWLR 663
Doney v The Queen (1990) 171 CLR 207
R v Smith (1995) 1 VR 10
R v Tolmie (NSW Court of Criminal Appeal, 7 December 1994, unreported)
R v Jasper (2003) 139 A Crim R 329
Rogers v The Queen (1994) 181 CLR 251
R v GK (2001) 53 NSWLR 317
R v ELD [2004] NSWCCA 219
R v Edwards (1998) 2 VR 354
R v Georgiou and Harrison (2005) 153 A Crim R 288
R v El Hassan (2001) 126 A Crim R 477
Segal v Waverley Council (2005) 64 NSWLR 177
Indooroopilly Children’s Services (Qld) Pty Limited v Commissioner of Taxation (2006) FCA 734
Valentine v Eid (1992) 27 NSWLR 615
Nominal Defendant v Manning (2000) 50 NSWLR 139
R v Towner (1991) 56 A Crim R 221
R v Blair (1985) 1 NSWLR 584
R v Rogers (No. 2) (1992) 29 NSWLR 179
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Walton v Gardiner (1993) 177 CLR 378
Hunter v Chief Constable of the West Midlands Police (1982) AC 529
Williams v Spautz (1992) 174 CLR 509
Smith v The Queen (1994) 181 CLR 338
Jago v District Court (NSW) (1989) 168 CLR 23
R v WRC (2003) 59 NSWLR 273
The Queen v Carroll (2002) 213 CLR 635
R v Chairman of London County Sessions; Ex parte Downes (1953) 37 Cr App R 148
Bowe v The Queen [2001] UKPC 19
Island Maritime Limited v Filipowski [2006] HCA 30
Nudd v The Queen (2006) 80 ALJR 614
R v Ronen (2004) 62 NSWLR 707
Weiss v The Queen (2005) 80 ALJR 444
Essenbourne Pty Limited v Commissioner of Taxation (2002) 51 ATR 629
Walstern Pty Limited v Commissioner of Taxation (2003) 138 FCR 1
Spotlight Stores Pty Limited v Commissioner of Taxation (2004) 55 ATR 745
Pridecraft Pty Limited v Commissioner of Taxation (2004) 213 ALR 450
Black v The Queen (1993) 179 CLR 44
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Royall v The Queen (1991) 172 CLR 378
R v Franklin (2001) 3 VR 9
Pinkstone v The Queen (2004) 219 CLR 444
R v Iannelli (2003) 56 NSWLR 247
Peters v The Queen (1998) 192 CLR 493
Spies v The Queen (2000) 201 CLR 603
R v Cohen, UK Court of Appeal, 28 July 1992, unreported)
Whitehorn v The Queen (1983) 152 CLR 657
Richardson v The Queen (1974) 131 CLR 116
The Queen v Apostilides (1984) 154 CLR 563
R v Kneebone (1999) 47 NSWLR 450
Houston v Crannage (1989) 42 A Crim 446
Barton v The Queen (1980) 147 CLR 75
R v Harry; Ex parte Eastway (1985) 39 SASR 203
Jones v Dunkel (1959) 101 CLR 298
Dyers v The Queen (2002) 210 CLR 285
R v Hamzy (1994) 74 A Crim R 41
R v Moussad (1999) 152 FLR 373
Director of Public Prosecutions v Merriman (1973) AC 584
R v Johnson (2001) 125 A Crim R 564
R v Wilson and Grimwade (1995) 1 VR 163
Lustre Hosiery Ltd v York (1935) 54 CLR 134
Anglim and Cooke v Thomas (1974) VR 363
Director of Public Prosecutions v Parsons (1993) 1 VR 1
R v R (1989) 44 A Crim R 404
Walsh v Tattersall (1996) 188 CLR 77
Carcosa Pty Limited v Czerwaniw (1977) 93 A Crim R 287
Pitcher v Langford (1991) 23 NSWLR 142

PARTIES: Regina (Commonwealth) (Crown)
Nikytas Nicholas Petroulias (Accused)

FILE NUMBER(S): SC 2002/93

COUNSEL: Mr P Hastings QC; Mr C Hoy (Crown)
Mr N Clelland SC; Mr G Livermore (Accused)

SOLICITORS: Commonwealth Director of Public Prosecutions (Crown)
Coadys (Accused)

LOWER COURT DATE OF DECISION: ---

LOWER COURT MEDIUM NEUTRAL CITATION: ---

i

Index

Paragraph(s)

The Present Applications
2

History of Proceedings
3-16

Evidence on the Present Pre-Trial Applications
17-20

The Role of the Judgments of Sully J from the First Trial
21-54

General Principles of Abuse of Process
55-70

Principles Concerning the “Foredoomed to Fail” Ground
71-85

The Crown Case
86-91

The First Count - Section 29D Crimes Act 1914 (Cth)
92-95

· A Defence Concession
96-99

· The Element of Deprivation
100-102

· The 2003 Court of Appeal Judgments
103-111

· Sully J’s Judgment of 21 February 2005
112-113

· The 2005 Court of Criminal Appeal Judgment
114-133

· The Trial Proceeds
134-137

· Sully J’s Judgment of 27 June 2005
138

· Sully J’s Judgment of 19 July 2005
139-144

· Directions to Jury Concerning Element of Deprivation
145-149

· Response to Certain Jury Questions
150-156

· Is the First Count Foredoomed to Fail on the Element of Deprivation?
157-174

· The Element of Causation
175-208

· The Element of Dishonest Means
209-233

· Conclusion on Foredoomed to Fail Ground Concerning First Count
234-235

The Broad Abuse of Process Ground
236-249

· The Submission that the Crown Case on the First Count is Insufficient
250-255

· The Submission that No Reasonable Jury Could Accept the Evidence of Mr Morgan
256-266

· Conduct of the Crown in Persisting to Prosecute Various Versions of s.29D Charge
267-271

· The Submission that the Number, Variety, Extent and Duration of the Proceedings Renders Their Continuation Oppressive and Vexatious
272-276

· The Submission that the Accused Lost a Substantial Prospect of Acquittal Because of Erroneous Directions at First Trial
277-286

· Failure of the Crown to Call Competent and Compellable Witnesses
287-302

· Impact of the Passage of Time Since 1997
303-308

· An Unmanageable and Unfair Trial?
309-314

· Stress and Hardship for Accused
315-316

· Public Interest Considerations
317-319

· Accumulating the Various Factors
320-321

· Conclusion on Application on Broad Abuse of Process Grounds
322-324

The Duplicity Argument
325-334

Conclusion
335-337

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

Johnson J

8 August 2006

2002/93 Regina v Nikytas Nicholas Petroulias (No. 1)
JUDGMENT (on pre-trial applications for permanent stay of all counts on Indictment and to quash first count on Indictment)

1 JOHNSON J: The Accused, Nikytas Nicholas Petroulias, has made a number of applications in advance of his trial upon the following counts:

(a) Count 1 - Between about 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 (s.29D Crimes Act 1914 (Cth) - maximum penalty - 10 years’ imprisonment);

(b) Count 2 - Between about October 1997 and February 1999 at Sydney, New South Wales and elsewhere, Nikytas Nicholas Petroulias, then a Commonwealth officer with the Australian Taxation Office, did agree to receive a benefit for himself, namely money, on an understanding that the exercise by him of his duty as a Commonwealth officer would be affected (s.73 Crimes Act 1914 (Cth) - maximum penalty - two years’ imprisonment);

(c) Count 3 - Between about June 1998 and April 1999 at Sydney, New South Wales, Nikytas Nicholas Petroulias, then being a Commonwealth officer with the Australian Taxation Office, did publish to Richard Llewellyn Morgan, 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 (s.70 Crimes Act 1914 (Cth) - maximum penalty - two years’ imprisonment).

The Present Applications

2 The Accused has applied for the following orders:

(a) that the first count be quashed pursuant to s.17 Criminal Procedure Act 1986 upon the basis that the Crown case as particularised, and the evidence to be presented in proof of the Crown case, is not sufficient to make out the elements of the offence charged;

(b) that the first count be stayed permanently as an abuse of process of the Court upon the basis that it is foredoomed to fail;

(c) that the first count be quashed pursuant to s.17 Criminal Procedure Act 1986 upon the basis that it is bad for duplicity;

(d) in addition to the grounds for a permanent stay of the first count referred to in paragraph (b) above, an order that all counts on the indictment be stayed permanently as an abuse of process of the Court upon a number of bases which will be referred to later in this judgment.

History of Proceedings

3 The criminal proceedings brought against the Accused have been the subject of considerable judicial attention since his arrest and charging in March 2000. Following committal proceedings which extended over 36 days between November 2001 and July 2002, the Accused challenged the decision committing him for trial with respect to each of the three counts: Petroulias v Wills (2002) 174 FLR 258; Petroulias v Wills (No. 2) (2003) 138 A Crim R 182. Simpson J allowed an appeal by the Accused with respect to the first count under s.29D Crimes Act 1914 (Cth) but dismissed an appeal with respect to the second and third counts under s.73 and s.70 respectively of that Act.

4 Thereafter, appellate consideration has been confined to the first count under s.29D of the Act. An appeal by the prosecutor against Simpson J’s order upholding the appeal on the first count was successful and the Court of Appeal, on 3 October 2003, set aside her Honour’s orders: Wills v Petroulias (2003) 58 NSWLR 598. Thereafter, the Accused advanced further arguments in the Court of Appeal concerning the first count which led to the Court varying its judgment and orders on 22 December 2003: Wills v Petroulias (No. 2) (2003) 58 NSWLR 618.

5 On 27 March 2004, Ms Sweeney, Magistrate (as her Honour then was), committed the Accused for trial in terms of the s.29D count as reformulated by the Crown as a result of the proceedings in the Court of Appeal.

6 On 16 August 2004, Sperling J dismissed an appeal with respect to the order for committal on the s.29D count: Petroulias v Wills (2004) 56 ATR 608.

7 On 7 February 2005, the trial of the Accused was fixed to commence before Sully J on an indictment containing three counts as set out in paragraph 1 of this judgment. Three applications were made by the Accused:

(a) an application for a permanent stay of the proceedings on all three counts contained in the indictment;

(b) in the alternative, an application for a permanent stay of the first count on the indictment;

8 After the hearing of the applications had proceeded for some days, the Accused did not press the first and third applications referred to above, but maintained the application for a permanent stay of the first count only. In due course, on 21 February 2005, Sully J ordered that the proceedings on the first count under s.29D be stayed permanently. Other grounds, including the submission that the first count was bad for duplicity, were dismissed by Sully J.

9 The Crown appealed under s.5F Criminal Appeal Act 1912 against the order of Sully J made on 21 February 2005 permanently staying proceedings on the s.29D count. The Court of Criminal Appeal (Spigelman CJ, Mason P, Hunt AJA) upheld the appeal and set aside the permanent stay: R v Petroulias (2005) 62 NSWLR 663. On 27 May 2005, the High Court of Australia refused special leave to appeal from the judgment of the Court of Criminal Appeal.

10 A number of other pre-trial applications were made by the Accused which were heard and determined by Sully J on days prior to 26 April 2005. On that day, the Accused pleaded not guilty to each of the three counts on the indictment, a jury was empanelled and the trial commenced before Sully J and the jury. The trial proceeded until 16 August 2005 when the jury was discharged without reaching a verdict with respect to any of the counts on the indictment.

11 During the course of the trial, a number of applications were made by the Accused which led to decisions by Sully J. At the close of the Crown case, the Accused sought a directed verdict of acquittal on the first count of the indictment, which application Sully J refused in a judgment delivered on 27 June 2005. No application of this type was made with respect to the second and third counts on the indictment.

12 The Accused did not give evidence or call witnesses in the defence case.

13 The Crown Prosecutor addressed the jury over a number of days between 28 June and 5 July 2005. Mr Clelland SC, for the Accused, addressed the jury over a number of days between 7 and 14 July 2005.

14 On 15 July 2005, Mr Clelland SC indicated a desire to advance further submissions in support of a directed verdict of acquittal on the first count with respect to the single element of deprivation. It was this aspect which had occupied the Court of Appeal in 2003 and the Court of Criminal Appeal in 2005 in the course of appellate consideration of the s.29D count. Argument was developed by Mr Clelland SC by reference to the 2005 judgment of the Court of Criminal Appeal and the evidence which had been adduced by the Crown at trial in support of the first count. On 19 July 2005, Sully J refused the application and the first count was left to the jury which, as noted, failed to agree upon a verdict.

15 On 4 November 2005, the Court was informed that the Commonwealth Director of Public Prosecutions had determined to proceed further against the Accused with respect to the same three counts which were the subject of the first trial.

16 On 20 July 2006, the hearing of the pre-trial applications referred to at paragraph 2 above commenced before me. Detailed written submissions had been furnished on behalf of the Accused and the Crown prior to the commencement of the hearing.

Evidence on the Present Pre-Trial Applications

17 In the course of this judgment, I will refer from time to time to the transcript of evidence and the exhibits in the first trial. For ease of reference, I will use the following descriptions in referring to transcripts and exhibits:

(a) with respect to the pre-trial hearing before Sully J between 7 February and 26 April 2005 (1,404 pages) - for example (PT28, 2005);

(b) with respect to the trial before Sully J and a jury which commenced on 26 April 2005 and continued until 21 July 2005 (3,190 pages), after which the trial transcript was freshly paginated - for example (T1476);

(c) with respect to the freshly paginated trial transcript which commenced on 21 July 2005 and continued until the discharge of the jury on 16 August 2005 (111 pages) - for example (TA58);

(d) with respect to the summing up of Sully J which commenced on 21 July and continued until 26 July 2005 (351 pages) - for example (SU143);

(e) all exhibits from the first trial will retain their exhibit numbers, with Crown exhibits commencing with Exhibit C and defence exhibits commencing with Exhibit D;

(f) the written directions provided to the jury by Sully J in the course of the summing up (MFI105) will continue to be so identified;

18 The Crown and the Accused agreed that the pre-trial applications should be heard together (PT16-17, 2006). Given a degree of overlap between the various applications, there was no useful purpose in the separate determination of any of the applications. Accordingly, I proceed in this judgment to determine each of the pre-trial applications, the hearing of which commenced on 20 July 2006.

19 The arguments advanced on behalf of the Accused and the responses of the Crown referred to evidence given at the trial before Sully J and a jury between 26 April and 16 August 2005. The Crown indicated an intention to proceed at a future trial on the same indictment (PT1-2, 2006) and to seek to adduce the same evidence led in the Crown case at the first trial (PT375-376, 2006). Accordingly, the transcript and exhibits of the first trial were placed before me on the hearing of the present applications, together with the judgments of Sully J concerning applications made before and during the trial and his Honour’s summing up to the jury. The argument before me proceeded upon the basis that it was that material which was relevant to the present applications. No additional evidence was tendered before me by the Accused or the Crown on the present pre-trial applications.

20 For ease of reference, a schedule identifying the trial exhibits to which I was taken by Mr Clelland SC during argument on these applications is Exhibit D1 before me (PT411, 2006). Schedules listing the exhibits to which I was taken by the Crown during submissions is Exhibit C1 on these applications (PT411, 2006). The written submissions of the Accused in support of the present applications (MFI1) and the Crown submissions in reply (MFI2) were likewise given specific identifiers for the purpose of these applications.

The Role of the Judgments of Sully J from the First Trial

21 Some, but not all, of the issues raised by the present pre-trial applications were the subject of judgments by Sully J and the Court of Criminal Appeal prior to and during the first trial. In particular:

(a) in the judgment of 21 February 2005 (pages 11-13), Sully J rejected an argument that the first count was bad for duplicity - the same argument has been repeated before me in the present hearing;

(b) in the judgment of 21 February 2005 (pages 27-42), Sully J permanently stayed the first count on the basis that it was foredoomed to fail - on 11 March 2005, the Court of Criminal Appeal allowed an appeal from this decision and set aside the order permanently staying the first count - the Accused has advanced arguments before me, a number of which are based upon the judgment of the Court of Criminal Appeal, submitting once again that the first count is foredoomed to fail;

(c) in judgments delivered on 27 June 2005 and 19 July 2005, Sully J refused an application for a directed verdict of acquittal on the first count - the Accused has repeated the arguments made in support of those applications before me on the application that the first count be quashed or stayed permanently upon the basis that it is foredoomed to fail;

22 In circumstances where Sully J and the Court of Criminal Appeal had delivered judgments on these matters in the context of the first trial, I sought submissions from senior counsel for the Crown and the Accused concerning the role of those judgments in the determination of the applications before me.

23 It was common ground, of course, that I was bound by the ratio decidendi of the judgment of the Court of Criminal Appeal with respect to the element of deprivation in the first count and the refusal of a permanent stay on that count. The debate concerned what precisely had been decided by the Court of Criminal Appeal in that respect.

24 Sully J had twice rejected applications for a directed verdict of acquittal on the first count at the first trial. His Honour’s first judgment (27 June 2005) was given following argument at the close of the Crown case. The second judgment (19 July 2005) was delivered following an application made after closing addresses to the jury and before the commencement of the summing up. In substance, the same arguments were advanced to me on the foredoomed to fail ground as were made to and rejected by Sully J in these judgments. The submissions to Sully J, of course, referred in some detail to the evidence which had been adduced in the Crown case at the trial. The submissions before me referred to the same evidence in support of the foredoomed to fail ground.

25 The submissions made to Sully J arose in the context of applications for a verdict by direction with respect to the first count, an application to be determined by reference to the principles in Doney v The Queen (1990) 171 CLR 207 at 214-215.

26 The arguments before me were made in support of an application that the first count be quashed or stayed on the basis that it was foredoomed to fail: Walton v Gardiner (1992-1993) 177 CLR 378 at 393, 411; R v Smith (1995) 1 VR 10; R v Tolmie (NSW Court of Criminal Appeal, 7 December 1994, unreported at 6-7); R v Jasper (2003) 139 A Crim R 329 at 335. To succeed in an application for a permanent stay on this basis, it is necessary for the accused to show that the proceedings “can be clearly seen to be foredoomed to fail” (Walton v Gardiner at 393) or that they will “inevitably and manifestly fail” (Walton v Gardiner at 411). A likelihood that the prosecution will fail is not the same thing as saying that it is doomed to failure: Tolmie at 7. The threshold to be met on such an application is high given the exceptional nature of the judicial power which is sought to be engaged: Jasper at 335.

27 Although the applications made to Sully J and to me are different in nature, the conclusion is open that the accused faces a more demanding task in satisfying the high threshold required for a permanent stay which would have the effect of preventing the operation of the ordinary processes of justice which exist for the purpose of determining criminal proceedings.

28 Upon this basis, the Accused faced a less onerous test in 2005 in his unsuccessful applications made to Sully J in the course of a criminal trial than he does in the application to me to prevent a criminal trial proceeding with respect to the first count.

29 Against this background, I sought submissions from the parties concerning the role of Sully J’s judgments. Put shortly, Mr Clelland SC submitted (PT20-27, 137-144, 160-169, 2006):

(a) that, as the jury in the first trial had been unable to agree and had been discharged without verdict, the principles in Rogers v The Queen (1994) 181 CLR 251 had no application to confine or restrict the ability of the Accused to advance applications previously rejected by Sully J;

(b) that I was not bound to follow the decisions of Sully J made at the first trial: R v GK (2001) 53 NSWLR 317 at 335-336 [74]; R v ELD [2004] NSWCCA 219 at paragraph 23; R v Georgiou and Harrison (2005) 153 A Crim R 288 at 296 [39];

(c) that, as no verdict was delivered at the first trial, “the whole slate is wiped clean” and I should approach the determination of the present applications afresh and without regard to the decisions of Sully J: R v Edwards (1998) 2 VR 354 at 356; R v GK at 335-336 [74]-[76];

30 In summary, the Crown submitted (PT133-136, 145-160, 169-172, 2006):

(a) that I was not bound by the decisions of Sully J made at the first trial: R v GK at 335-336 [74];

(b) that, however, I should follow the decisions of Sully J, even if I was of the view that the decisions were clearly wrong, if there is no proper basis for distinguishing them and if, therefore, a refusal to follow the earlier rulings would have the practical effect of promoting the notion that a criminal trial is, in significant respects, a lottery: R v GK at 336 [77];

(c) that I should follow the decisions of Sully J unless there are different circumstances in the application of the discretion in the present case, or there is fresh evidence in the present case - in either of those two circumstances, it being such as would require a real redetermination of whether the relevant discretion should be exercised: R v GK at 336 [76];

R v GK

31 Given that both parties relied upon R v GK in support of conflicting propositions, it is appropriate to examine the decision. In R v GK, Ford QC DCJ limited the use to which certain DNA evidence could be put at a sexual assault trial. The trial proceeded, the jury could not agree and were discharged. Prior to the retrial before Moore DCJ, the Crown sought to tender the DNA evidence for purposes extending beyond those allowed by Ford QC DCJ at the first trial. Moore DCJ declined to allow the Crown to lead this evidence for these additional purposes. The second trial proceeded but was aborted. A third trial proceeded before Moore DCJ and the jury acquitted the accused on all counts. Thereafter, the Crown submitted a number of questions of law to the Court of Criminal Appeal under s.5A Criminal Appeal Act 1912, the first of which was in the following terms:

“Where a trial judge makes a discretionary ruling on the admissibility of certain evidence is a trial judge at a subsequent trial following a failure by the first jury to agree on its verdict bound to follow that ruling with respect to the admissibility of the same evidence?”

32 The Court answered this question in the negative: R v GK at 319, 335-337.

33 In the leading judgment at 334 [68], Sully J reproduced that part of the judgment of Moore DCJ concerning the influence of the earlier decision of Ford QC DCJ upon the application before him. Given the issues before me concerning R v GK, it is appropriate to set this out. Moore DCJ said:

"26. The ratio in Rogers has two strands - (1) the ruling in the original trial must be conclusive and (2) the importance of avoiding the scandal of conflicting decisions. It is cloaked by the special shroud of the distinct nature of criminal proceedings, with its fundamental principles (see Rogers per Deane and Gaudron JJ quoted above)

27. My analysis of the application of

Rogers

, and as to the authority of

Edwards

in the present case, is to say that I should pay full deference to the ruling of his Honour Judge Ford unless (a) his Honour's finding was clearly wrong, or (b) there are different circumstances in the application of the discretion in the present case, or there is fresh evidence in the present case, in either of those two circumstances being such as would require a real re-determination of whether the discretion should be exercised."

34 Mason P agreed at 319 with the judgment of Sully J with respect to the answer to the first question and his Honour’s reasons for it. In the course of short additional comments, Mason P observed that it was wrong for Moore DCJ to have approached the ruling in the earlier trial as if it had any preclusive effect given that the jury had failed to agree at the earlier trial: R v GK at 319 [5].

35 Dowd J at 342 [102] agreed with the judgments of Mason P and Sully J with respect to the first question.

36 It is appropriate to set out a portion of the judgment of Sully J which attracted particular attention during the course of submissions before me. At 335-336 [74]-[77], Sully J said:

“74 As to the first submitted question: I am of the opinion that the decisions, previously herein mentioned, of

Rogers

and of

Edwards

, support the following propositions:

[1] A Judge who is asked to exclude evidence pursuant to s 137 of the Evidence Act is not required to exercise any discretion such as is required, for example, by a decision whether evidence should be excluded pursuant to s 135 of that Act. The Judge is required, rather, to make a connected series of findings of law and of fact upon which s 137 will operate without any further discretionary input of the Judge.

[2] That connected series of findings will derive from the following connected series of questions:

2.1 Is the tendered evidence relevant at all in the sense required by s 55(1) of the Act? If not, then the evidence is in any event inadmissible.

2.2 If the tendered evidence is relevant in that sense, then what is its probative value, as that expression is defined in the Dictionary that forms part of the Act?

2.3 Is there a danger that the tendered evidence, if admitted, will give rise to the danger of unfair prejudice to the defendant: that is, to the real risk that the evidence, if admitted, will be misused by the jury in some way that is unfair to the defendant?

2.4 If so, then where does the preponderant weight lie as between, on the one hand that probative value; and on the other hand that danger of unfair prejudice to the defendant?

If the preponderant weight favours the factor of probative value, then s 137 does not require the exclusion of the evidence; and the evidence ought to be admitted unless there is some other proper basis for its exclusion.

[3] The answering of each of the foregoing four questions does not depend upon any discretionary judgment, still less any merely intuitive response. It depends upon the reaching of a rational conclusion drawn from facts admitted or proved.

[4] A particular ruling that some tendered piece of evidence either is, or is not, required by the operation of s 137 of the Evidence Act to be excluded can be re-visited by the trial Judge at any time until the Crown and the accused have finally closed their respective cases.

[5] Thereafter, when the jury has returned a verdict, the particular evidentiary ruling is final as between the Crown and the accused for as long as the verdict remains on foot.

[6] Should the verdict be set aside on appeal, then as Batt JA put the point in

Edwards

(at 356): ‘the whole slate .......

.......wiped clean’. One consequence of that will be that in the event of a re-trial, the Judge presiding at the re-trial will not be bound to adopt the ruling given in the earlier trial, for the issues of law and of fact determined in the earlier trial in connection with the ruling will be at large, the verdict which previously gave them finality having no continuing legal effect. In my opinion the same result must follow in a case where the jury at the earlier trial did not reach a verdict at all.

[7] The proposition [5] above is subject to the qualification that in any subsequent trial of the particular accused, the evidentiary ruling will not bind the subsequent trial Judge:

(a) If it is shown that the ruling was in some way tainted by fraud; or

(b) If it is shown that there is fresh evidence, the acceptance of which will change the findings fundamental to the earlier ruling.

75 As has been earlier noted, Moore DCJ proceeded upon the basis of two stated criteria.

76 As to the criterion stated in paragraph 27(b) of his Honour's reasons, I would respectfully agree in general with what is said by his Honour, but subject to two matters:

1. The reference to a ‘discretion’ is, in my respectful opinion, misconceived in a case where it is the proper application of s 137 of the Evidence Act that is in point; and

2. The notion of ‘pay (ing) full deference’ to the earlier ruling is ambiguous. If his Honour meant to say ‘should follow’, then I would agree with the principle stated in paragraph 27(b) as thus understood.

77 As to the criterion stated in paragraph 27(a) of his Honour's reasons, I respectfully disagree with his Honour to the extent necessary in order to maintain the propositions numbered 1 through 7 as previously herein stated. Even if the Judge in the relevant subsequent trial thinks that the ruling in the relevant earlier trial is ‘clearly wrong’, I think that the better view is that the earlier ruling should be, nevertheless, followed if there is no proper basis for distinguishing it;

if the earlier trial has resulted in a verdict that has not been set aside on appeal

; and if, therefore, a refusal to follow the earlier ruling would have the practical result described by Brennan J in

Rogers

as that of ‘(promoting) the notion that a criminal trial is, in significant respects, a lottery’."

The effect of the underlined words at 336 [77] attracted submissions before me.

37 It was common ground before me that the decision in R v GK meant that I was not bound to follow the decisions of Sully J at the first trial. Controversy arose, however, as to the role to be played by the decisions of Sully J in my decision making. Attention was focused upon paragraphs 76 and 77 in Sully J’s judgment. At that point, his Honour addressed directly the approach of Moore DCJ at first instance. The extract from the judgment of Moore DCJ, to which Sully J referred, is set out above in paragraph 33. For present purposes, the following observations are pertinent:

(a) Sully J considered that the formula of Moore DCJ that he should “pay full deference to the ruling of his Honour Judge Ford unless …” was “ambiguous” - the correct formula was that Moore DCJ “should follow the ruling” of Ford QC DCJ: R v GK at 336 [76];

“clearly wrong”

R v GK

(i) if there is no proper basis for distinguishing it,

(ii) if the earlier trial has resulted in a verdict that has not been set aside on appeal,

38 The Crown submitted that a proper understanding of paragraph 77 in R v GK required subparagraphs (i)-(iii) above to be regarded as alternative and not cumulative propositions. It was submitted for the Crown that paragraph 77 could only have sensible application when so read. If a ruling had been made at an earlier trial which had resulted in a verdict which had not been set aside on appeal, then the principles in Rogers v The Queen would have direct application and it would be those principles which would govern any application at a later trial. Sully J referred to this situation expressly at 335 [74] (5) and (7). The proposition contained at 336 [74](7) represented the only qualification to the proposition in [74](5) which reflected the principles in Rogers v The Queen.

39 The Crown submitted that paragraphs 75-77 of the judgment of Sully J should be understood as applying solely to the circumstances raised by the first question posed to the Court of Criminal Appeal. This question related to circumstances where an application is determined by a trial judge, the trial is aborted and the same application is made to the second trial judge. The Crown submitted that paragraphs 75-77 had direct application to the present case. Viewed in this way, the Crown submitted that I should follow the decisions of Sully J at the first trial even if I were satisfied that a decision was clearly wrong, if there was no proper basis for distinguishing it (for example, because of fresh evidence in the second application) and that a refusal to follow the earlier ruling would have the practical effect of promoting the notion that a criminal trial, in significant respects, a lottery. The Crown submitted that this construction of paragraph 77 must be correct because R v GK was not a case where the first trial had resulted in a verdict which had not been set aside on appeal. It was not a case where the principles in Rogers v The Queen had direct application. In these circumstances, the Crown submitted that it would be a puzzling and superfluous addition to impose a cumulative element involving a requirement that the decision in the earlier trial had occurred where a verdict followed which had not been set aside on appeal.

40 Mr Clelland SC submitted that paragraph 77 ought be taken to mean what it says. An approach is proposed in paragraph 77 which incorporates, as an ingredient, the requirement for an undisturbed verdict following the first trial. Unless this approach is taken, Mr Clelland SC submitted that no sensible meaning can be given to the concept accepted by Sully J at paragraph 74(6) of “the whole slate [being] wiped clean”. If the correct approach involves a blank slate from the first trial, Mr Clelland SC submitted that a restricted approach of the type referred to in paragraphs 76 and 77 would have no logical operation. Rather, it was submitted that those paragraphs should be understood as having application only where the earlier trial had resulted in a verdict which had not been set aside on appeal.

41 In this respect, Mr Clelland SC relied upon the formulation of the principle in R v GK by Bell J (Howie and Hislop JJ agreeing) in R v ELD at paragraph 23:

“The rulings made by the Judge were as to the admissibility of evidence at the trial before her. After announcing them she remanded the respondent for trial on a future date. When the respondent’s trial comes on for hearing it may proceed before another judge. The ruling made by the Judge as to the admission of evidence has not become final as between the Crown and the respondent by the entry of a conviction or an acquittal:

Rogers v The Queen

(1994) 181 CLR 251;

R v GK

[2001] NSWCCA 413; 53 NSWLR 317;

R v Edwards

[1998] 2 VR 354. The judge presiding at the respondent’s trial is not bound to adopt evidentiary rulings made at an earlier aborted trial:

R v GK

per Mason P at [4] and [5] and Sully J at [74]. It is to be noted that Sully J observed that a ruling excluding evidence under s 137 of the Act made at one trial should be followed at a subsequent trial if the earlier trial had resulted in a verdict that had not been set aside on appeal and if there was no proper basis for distinguishing it: at [77].”

42 Reliance was also placed upon the decision of the Court of Criminal Appeal in R v Georgiou and Harrison where Hidden J (Spigelman CJ and Sully J agreeing) said at 296 [39]:

“In this Court, Mr Wendler acknowledged that Greg James J was not bound by the ruling of Dowd J because, the verdicts in the first trial having been set aside on appeal, that ruling was not final as between the Crown and the appellant:

Rogers

, per Deane and Gaudron JJ at 278 – 9;

R v GK

(2001) 53 NSWLR 317, per Sully J at 335 - 6. Mr Wendler relied upon the more flexible approach in

Rogers

of Mason CJ, based upon notions of abuse of process and public confidence in the administration of justice. That was not the approach of the other members of the Court. Nevertheless, Greg James J referred to the judgment of the Chief Justice in considering the reasons of Dowd J but, having concluded that Dowd J’s decision was ‘plainly wrong’, determined that public confidence in the administration of justice would not be served by adhering to it. His Honour referred to the review of relevant authority to be found in the judgment of Buddin J, sitting as a trial judge, in

R v Pettersen

(unrep, 6 June 2002) at [7] - [14]. It was clearly open to his Honour to examine the matter afresh, and no error has been shown in his doing so.”

43 In substance, the Crown submitted that, although Sully J did not use the term expressly, the rule of judicial comity (in a form summarised in paragraphs 76 and 77 in R v GK) had application to the process of decision making where application is made at a second trial of a type which was determined at an earlier trial and where there has been no intervening verdict. There was direct authority for this proposition in the context of criminal pre-trial rulings in R v El Hassan (2001) 126 A Crim R 477 where the Court of Criminal Appeal (Howie J, Stein JA and Hidden J agreeing) said at 478 [4]:

“Notwithstanding that the judge before whom the trial will next be listed would not strictly be bound to determine any of the issues which were before Judge McGuire in the same way as his Honour did, the present matter gives rise to a discrete question of law and comity between judges of the District Court would generally require that the trial judge not embark upon a further consideration of the matter unless there was a good reason to do so. Further, the question raised by the application is fundamental to the issues that will arise on the trial of the applicant and the defence upon which he seeks to rely. If answered unfavourably to the applicant, it may well have some bearing upon the course that the proceedings take thereafter. In my opinion leave should be granted to the applicant to appeal against his Honour's ruling.”

44 The Crown submitted that such an approach was entirely consistent with the application of the rule of comity in proceedings generally. In Segal v Waverley Council (2005) 64 NSWLR 177, the Court of Appeal (Tobias JA, Beazley and Basten JJA agreeing) adverted at 193 to the practice, as a matter of judicial comity, of a judge at first instance following an earlier decision of a judge of co-ordinate jurisdiction. In this respect, Tobias JA said at 193 [57]:

“The primary judge stated the relevant principle in [16] of his judgment. The most cited statement of the principle is that of Holland J in

Michael Realty Pty Limited v Carr

[1975] 2 NSWLR 812 where at 820 his Honour said (omitting citations):

‘I do not think that I am relieved by the decision of Needham J of my duty to bring my own judgment to bear on the point in question. There is no rule of law which binds a judge to abide by the decision of another judge of co-ordinate jurisdiction, but a judge of first instance will, as a matter of judicial comity, usually follow the decision of another judge of first instance in the same jurisdiction, unless convinced that the judgment was wrong’.”

45 The principle of judicial comity is well recognised and is applied as between judges of the same or co-ordinate jurisdictions. The relevant authorities are summarised by Collier J in Indooroopilly Children’s Services (Qld) Pty Limited v Commissioner of Taxation (2006) FCA 734 at paragraphs 49, 52, a decision upon which the Accused relies for other purposes in the present applications. In Valentine v Eid (1992) 27 NSWLR 615, Grove J held that the Local Court is not bound by a decision of the District Court in criminal proceedings, but that the principle of comity applies. His Honour said at 622:

“I emphasise that I am not suggesting that a Local Court may not be considerably advantaged by reference to a relevant judgment of the District Court and I would expect that, except on rare occasions, such judgment would be compellingly persuasive and I hold no more than that a binding precedent has not been created. I refer to Lord Goddard's statement of principle in

Police Authority for Huddersfield v Watson

(1947) KB 842 that a judge of first instance of the High Court will follow a decision of another judge of first instance, unless he is convinced that that judgment is wrong, as a matter of judicial comity— a principle now extended to apply to divisional courts in Britain:

R v Greater Manchester Coroner; Ex Parte Tal

[1985] QB 67 at 81. As comity is required between courts of equal rank, co-ordinate decision must also exist between the Local Court and District Court and a magistrate should not depart from following any decision of the District Court unless after earnest consideration and for good reason he or she became convinced that the decision was wrong.”

46 The Crown referred to the statement of Mason P, with respect to civil interlocutory applications, in Nominal Defendant v Manning (2000) 50 NSWLR 139 at 142 [10]:

“A long line of authority attests to the practice of courts hearing interlocutory applications on matters of substance declining to allow a second contested run at the target where the only change of circumstances is an applicant coming forward with new evidence. …”

47 The Crown submitted that, in effect, I was being asked to sit on appeal from a number of the decisions of Sully J given at the first trial and, in a sense, from the decision of the Court of Criminal Appeal of 11 March 2005. Further, it was submitted that Sully J had the advantage of considering the various applications which were the subject of judgments during the trial having heard the evidence unfold over several months, and with an understanding of the totality of the evidence adduced at the trial. The Crown submitted that this was an advantage which I did not have at the hearing of the present applications. According to this submission, the Crown’s construction of the decision in R v GK supported an approach whereby a confined test might be adopted to the resolution of the present applications. It was submitted by the Crown that Mr Clelland SC should be addressing me as to a proper basis for distinguishing the decisions of Sully J either because there are different circumstances or there is fresh evidence (PT159.19, 2006).

48 Mr Clelland SC submitted that the comity principle had no application in the circumstances of this case (PT164-165, 2006). He submitted that the comity principle usually arose where the first judge gave a final decision and a second judge was invited to depart from the decision of the first judge. He submitted that the comity principle may have application to a discrete question of law (as in R v El Hassan), but that was not the issue under consideration in the present applications. Reliance was placed upon the statement of Priestley JA in R v Towner (1991) 56 A Crim R 221 at 222 where his Honour said:

“Some of the trial judge’s rulings were favourable to the appellant, in particular, some confessional material was excluded by the trial judge in exercise of his discretion. At any further trial, if this material is again tendered by the prosecution, it will be for the trial judge to consider afresh, in light of all the material available in the new trial, whether it should be admitted.”

R v Blair

R v Rogers (No. 2)

Rogers v The Queen

49 In Spencer Bower, Turner and Handley, Res Judicata, 1996, 3rd edn, it is noted at paragraph 328 that a ruling on voluntariness at a criminal trial which terminates without verdict, or results in a conviction which is set aside, is not binding on either party at a new trial. The decision in R v Blair is cited as authority for this proposition which is said to accord with the principle in civil cases where a new trial is ordered.

50 Although it has no application to the present case (and was not referred to in submissions), I note the enactment, in 2005, of s.130A Criminal Procedure Act 1986, a provision whereby a pre-trial order made by a judge in sexual offence proceedings is binding on the trial judge in those proceedings unless, in the opinion of the trial judge, it would not be in the interests of justice for the order to be binding. The provision extends to pre-trial orders made at a trial leading to a verdict which is set aside on appeal or where proceedings are discontinued for any reason (presumably, including a hung jury): s.130A(2) and (3). This provision varies the common law position set out above so that a decision of a single judge in relevant proceedings is binding on another single judge unless the second judge is of the opinion that it would not be in the interests of justice for the order to be binding. If the decision in R v GK bears the meaning advanced by the Crown in this case, then it might be thought that this statutory modification may not have any particular purpose. That said, I place to one side s.130A which has no application to the determination of the question which I must decide.

51 The following propositions appear pertinent to the present case:

(a) I am bound by the decision of the Court of Criminal Appeal on 11 March 2005 which overturned the grant by Sully J of a permanent stay of the first count on the foredoomed to fail basis;

(b) the present applications take as a starting point the judgment of the Court of Criminal Appeal on 11 March 2005 with the Accused contending that, applying what was said by the Court in that judgment, appropriate relief ought be granted to him in the light of the way in which the Crown conducted the trial between April and August 2005;

(c) I am not bound to follow a decision of Sully J reached at the first trial even if the same application is made before me upon the same evidentiary and legal basis as advanced at the first trial;

(d) no additional evidence was placed before me on the hearing of these applications - the applications proceeded upon the same evidentiary base as was before Sully J in June and July 2005;

(e) the Accused submits that, in various respects, Sully J had erred in fact or law on issues which are relevant to the determination of the present applications;

52 A clear application of the principles in R v GK to the present case is not without its difficulties. I propose to approach the issues raised by the present applications upon the basis that I will consider the submissions and evidence to which reference has been made and I will make my own independent assessment of that material for the purpose of ruling on the applications. I will have regard to the decisions of Sully J to which I have been taken to assist in this decision-making process. I am not bound by any of the decisions of Sully J. However, his Honour’s judgments will assist me in reaching the decisions on the various applications.

53 The decisions of Sully J at the first trial refusing a directed verdict of acquittal on the first count do not involve precisely the same issue as that to be determined by me. Nevertheless, I will have regard to the decisions of Sully J on those issues. His Honour had the substantial advantage of seeing and hearing the evidence unfold over several months. Arguments were advanced to his Honour concerning the same areas of fact and law as submitted before me. I will determine for myself the issues falling for decision on these applications. However, I will have regard to, and be assisted by, his Honour’s judgments on these matters.

54 I do not approach these applications upon the basis that, as a threshold question, the Accused should be required to demonstrate why he ought be allowed to advance once again, directly or indirectly, applications which were refused at the first trial. I acknowledge that, depending upon the proper construction of R v GK, this approach might be unduly favourable to the Accused.

General Principles of Abuse of Process

55 The term “abuse of the process of the court” is used in many senses: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at paragraph 1. What amounts to abuse of court process is insusceptible of a formulation comprising closed categories: Batistatos at paragraph 9.

56 In Walton v Gardiner at 393, Mason CJ, Deane and Dawson JJ accepted as correct a passage in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536 in which Lord Diplock spoke of:

“… the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.”

57 A distinction has been drawn between the policy considerations affecting abuse of process in criminal proceedings and civil proceedings. In Williams v Spautz (1992) 174 CLR 509 at 520, Mason CJ, Dawson, Toohey and McHugh JJ identified two fundamental policy considerations affecting abuse of process in criminal proceedings:

“The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.”

58 It has been emphasised that the power to stay permanently a criminal prosecution will be used only in most exceptional circumstances: Jago v District Court (NSW) (1989) 168 CLR 23 at 31 (Mason CJ). If permanent stay orders were to become common place, it would not be long before courts would forfeit public confidence: Jago at 50 (Brennan J). The power is exercisable only in exceptional cases or sparingly and with the utmost caution: Jago at 76 (Gaudron J).

59 In R v WRC (2003) 59 NSWLR 273, Spigelman CJ (Dunford and Hidden JJ agreeing) said at 282 [55]-[56]:

“A permanent stay of criminal proceedings is a wholly exceptional intervention into the processes of the criminal law. The public interest in ensuring that persons charged with crimes are tried is entitled to significant weight in the necessary balancing process. (See, for example,

Jago

(at 30 and 49–50).) Because of this, as Mason CJ said in

Jago

(at 34): ‘a permanent stay should be ordered only in an extreme case …’.”

60 The onus of satisfying the Court that there is an abuse of process lies upon the party alleging it and the onus is a heavy one: Williams v Spautz at 529. It is the defence that assumes the high burden of seeking to establish irredeemable abuse of process so as to preclude a fair trial: R v Petroulias (2005) 62 NSWLR 663 at 688 [103]-[104].

61 The Accused submits that the approach to be taken in determining the broader abuse of process ground involves the weighing process referred to by Mason CJ, Deane and Dawson JJ in Walton v Gardiner at 395-396:

“As was pointed out in

Jago

, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.”

62 The circumstances that may constitute oppression or an abuse of process are various and the discretionary considerations that may be relevant in dealing with them cannot be rigidly confined: The Queen v Carroll (2002) 213 CLR 635 at 650-651 [47] (Gleeson CJ and Hayne J).

63 The jurisdiction to stay proceedings as an abuse of process is wide ranging, but not without limits. It has been said that the discretion cannot be exercised to stop proceedings because the evidence against the accused is weak or because the Bench disapproves of the prosecution: R V Chairman of London County Sessions; Ex parte Downes (1953) 37 Cr App R 148 at 152; Pattenden, Judicial Discretion and Criminal Litigation, 2nd edn, 1990, Clarendon Press, page 33.

64 The fact that the jury could not agree at the first trial and that the Crown wishes to proceed by way of retrial is not an uncommon event in the criminal justice system. It is not, of itself, capable of constituting an abuse of process: Bowe v The Queen [2001] UKPC 19.

65 It may be taken that the Commonwealth Director of Public Prosecutions has exercised his prosecutorial discretion in determining that retrial should proceed on all three counts contained in the indictment. There are published guidelines for the making of decisions contained in the Prosecution Policy of the Commonwealth. Paragraph 5.23 of the Prosecution Policy makes express provision for the Director to have regard to a range of factors where a jury has disagreed at a trial and consideration is given to whether a retrial should proceed. In Island Maritime Limited v Filipowski, Kirby J at paragraph 81 adverted to the significance of prosecutorial discretion in explaining why a stay of criminal proceedings was most exceptional:

“Generally speaking, courts exist to quell the controversies brought to them by the parties. Their powers, of their own initiative, to institute or terminate proceedings are exceptional. Such powers are kept in firm check. Courts in this country are not, generally speaking, inquisitors. This is true of civil process. With even greater emphasis, it is true of criminal process. There, judges are repeatedly enjoined to respect the prosecutor's independent discretions. Ordinarily, those discretions, if made within power, are exempt from judicial superintendence or interference. They generally belong, in our system of government, to the Executive, its agencies and officials, not to the judiciary which ordinarily keeps its distance from such decisions, just as it demands independence in the discharge of its own functions. These are not absolute rules. But in Australia these cases (both in criminal and civil proceedings) are acknowledged as exceptional.”

R v Smith

66 The crimes alleged against the Accused are serious. There is a high public interest in having the allegations disposed of, one way or the other, on the merits: Island Maritime Limited v Filipowski [2006] HCA 30 at paragraph 32 per Gleeson CJ, Heydon and Crennan JJ.

67 The authorities referred to above point to no closed categories of circumstances which may constitute an abuse of process. As will be seen, emphasis is placed by the Accused in the present case upon the likely length of a retrial on all three counts (as opposed to a retrial on the second and third counts only), the complexity of such a retrial given the manner in which the Crown has advanced its case (and proposes once again to advance its case) on the deprivation element, the public and private cost to be expended in such a protracted trial and the emotional stress to be placed on the Accused and Crown witnesses to be called in support of the first count at the retrial.

68 In the present case, the Accused submits that a combination of factors including the manner in which the Crown presented its case, and allegedly declined to take up an approach suggested by the majority in the Court of Criminal Appeal in March 2005, taken with alleged erroneous directions to the jury has deprived the Accused of a substantial prospect of acquittal on the first count at the trial. It will be necessary to trace events through the judgments of the Court of Appeal and the Court of Criminal Appeal, the evidence adduced by the Crown at the trial on the first count, rulings of the trial judge in declining the application for a directed verdict of acquittal and directions given by Sully J to the jury on this count.

69 To the extent that the Accused’s argument refers to hardship and stress experienced by him as a result of the continuation of these proceedings, it is pertinent to note that factors of this type, although not irrelevant to the weighing process to be undertaken, count for little of themselves. It is to be expected that all accused persons will experience stress as a result of pending criminal proceedings. In Island Maritime Limited v Filipowski, Callinan J at paragraphs 96-97 observed that the appellants had experienced anxiety, inconvenience, expense and the pain of proceedings, but concluded that abuse of process had not been demonstrated.

70 In due course, I will apply these principles to the particular factors relied upon by the Accused in support of the broader abuse of process ground. For the moment, it is sufficient to observe that the Accused bears a heavy onus to demonstrate why the due process of law should not take place in this case with respect to the three counts contained in the indictment.

Principles Concerning the

“Foredoomed to Fail”

Ground

71 The Accused applies for the first count to be quashed or stayed permanently upon the basis that it is foredoomed to fail. Although the Accused has advanced this argument in support of two grounds (see paragraph 2(a) and (b) of this judgment), the legal foundation for such relief flows from a single set of principles arising from the law of abuse of process.

72 In Walton v Gardiner, Mason CJ, Deane and Dawson JJ said at 392-393:

“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be

clearly seen to be foredoomed to fail

.”

73 At 410-411, Brennan J said:

“If a party instituting proceedings does so for a purpose alien to the purpose which the proceedings are designed to serve, the proceedings are an abuse of process whether or not they are well founded in fact and law (

Williams v Spautz

.). And equally,

the institution of proceedings which will inevitably and manifestly fail

(

Cox v Journeaux

(No.2) (1935) 52 CLR 713;

Dey v Victorian Railways Commissioners

(1949) 78 CLR 62, at pp 84, 91-92;

General Steel Industries Inc v Commissioner for Railways

(NSW) (1964) 112 CLR 125) or which unnecessarily duplicate proceedings already pending (

McHenry v Lewis

(1882) 22 Ch D.397;

Williams v Hunt

(1905) 1 KB 512.) or determined (

Connelly v DPP

(1964) AC 1254, at pp 1361-1362) are incapable of serving a legitimate purpose.”

74 The ability of a court to stay permanently a criminal prosecution upon the basis that it is foredoomed to fail has been recognised: R v Tolmie per Hunt CJ at CL at 6-7; R v Jasper at 335 [18]-[20]. The interrelationship between a foredoomed to fail argument and the case-to-answer test in a criminal trial was considered in R v Smith at 13-16, 23-24, 26ff, 41ff. The Full Court in Victoria overturned unanimously a permanent stay of criminal proceedings granted by a single judge on the foredoomed to fail basis. The High Court allowed an appeal and overturned the decision of the Full Court upon a technical basis, there being no power at the relevant time to appeal in Victoria against the order made at first instance by the trial judge: Smith v The Queen (1994) 181 CLR 338. The decision of the High Court, however, did not relate to the merits of the case and no judicial disapproval was expressed with respect to the approach of the Full Court to the foredoomed to fail ground.

75 The Judges comprising the Full Court in Victoria delivered separate judgments in R v Smith. In summarising the principal conclusions for allowing the appeal, Brooking J said at 23-24:

“Assuming in favour of the respondents that a stay may be granted at the outset of a criminal trial on the ground that the Crown will be unable to make out a case to answer, having regard to the available evidence, that inability of the Crown must be clear beyond argument. If it is fairly arguable that on the evidence available to the Crown there will be a case to answer, the prosecution is not in the necessary sense clearly shown to be foredoomed to fail, so as to be shown to be an abuse of process.

It could not be said that it was clear beyond argument that the Crown would be unable to make out a case to answer of murder against the respondents.

Indeed (although this is not the test), it could not even be said that the respondents succeeded in showing that the better view was that a case to answer of murder would not be made out against them.”

76 Byrne J said at 28-29:

“To my mind, however, the no case test simpliciter is not the appropriate one for a case such as the present. It is evident from the expressions used in the passages quoted above from Walton v Gardiner that, for a successful stay application of the kind before us, the case must be not merely incapable of success but ‘clearly foredoomed to fail’; or in the words of Brennan J the vice is the institution of proceedings ‘which will inevitably and manifestly fail’. The intent of these emphasised words is indicated by the cases cited by the court in support of those passages: Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 220-1; Cox v Journeaux (No. 2) (1935) 52 CLR 713; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 84, 91-2; General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125. These are all civil proceedings where it is emphasised by the court that the power should be exercised sparingly and only in a clear case. …

The application of these principles to a criminal proceeding poses further difficulties. First, there are no pleadings properly so called. This means that the practice of determining the prospect of success of the prosecution with little or no reference to the available evidence cannot be adopted. Secondly, it cannot be ignored that the Crown in a criminal trial does not stand in exactly the same position as a plaintiff in civil litigation. The wisdom of a decision to prosecute or to prosecute for a specific offence is not, properly speaking, a matter for the court: Barton v R (1980) 147 CLR 75. Furthermore, the decision to prosecute will normally have been made only after a preliminary determination of a magistrate following a committal and a re-assessment of the evidence by an experienced prosecutor upon whom lies special responsibility to ensure that proceedings are instituted only where there is a case apparent on the material. The court traditionally respects the judgment of the Crown in the conduct of the prosecution: R v Apostilides (1984) 154 CLR 563. This is, of course, not to say that the court should abdicate its responsibility to the prosecutor, but rather that regard should be had to these factors in determining the fate of a stay of application.

In my view, in a case such as the present, the power to order a permanent stay of a criminal proceeding before the court should be limited to the case where it is plain beyond argument that the prosecution case suffers from some incurable vice.

Such a vice must be readily apparent and clearly fatal to the prospect of success of the prosecution. I cannot readily imagine that such a vice could arise out of some insufficiency of evidence relied on by the Crown unless a matter such as an incurable absence of admissible evidence on some essential element.”

77 Eames J at 41-42 said with respect to the test to be satisfied in support of foredoomed to fail ground:

“The real question is whether the passage in Doney , to which I have made reference and which relates to the principles relevant to a submission of ‘no case’, embraces the concept of the case being ‘so clearly untenable’ that the prosecution cannot possibly succeed, as stated by Barwick CJ in General Steel , or the concept of the case being ‘foredoomed to fail’ stated in Walton where the application before the court is for a stay of proceedings. In my opinion it does not and, accordingly, his Honour has applied the wrong test in determining the application for a permanent stay.

The tests are very similar but, in my opinion, the very considerable emphasis given in the decided cases to the exceptional care which must be given to any such application, and the expected rarity of the success of such an application, suggests a test more onerous than that which would apply to a no case submission. Having had the advantage of reading the judgment of Brooking J, I am content to adopt the formulation of the test as proposed by his Honour, namely, that it must be clear beyond argument that the Crown is unable to make out a case to answer, having regard to the evidence available to it. A test stated in such stringent terms would be consistent with the often stated acknowledgment that the courts are not to interfere with the discretion residing in prosecuting authorities to determine which trials are to be prosecuted in the courts:

Connelly v Director of Public Prosecutions

[1964] AC 1254 at 1304;

Jago

at 39 per Brennan J; cf Mason CJ at 28. The rarity of the success of such an application as that presently under consideration may be gauged by the fact that counsel were unable to cite a single instance of such an application succeeding on grounds such as those argued here.”

78 Accordingly, on this ground, the Accused seeks the most exceptional type of an already exceptional remedy. If the application succeeds, the operation of the criminal justice system will not proceed further with respect to the first count. There will be no trial on that count at which I may be called upon, as the trial judge, to determine whether the Accused has a case to answer applying the principles in Doney v The Queen. Assuming that there was such a case, there will be no opportunity for a jury, as representatives of the community, to hear the evidence and return a verdict according to law on that count.

79 In Doney v The Queen, the High Court emphasised the importance of the traditional jury function in a criminal trial. The Court made express reference at 215 to the important role of the jury when a trial judge is asked to exercise the power to stay proceedings as an abuse of process at the expense of the traditional jury function:

“It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see

Whitehorn

,

Chamberlain v. The Queen (No.2)

(1984) 153 CLR 521 and

Morris v. The Queen

(1987) 163 CLR 454) nor the inherent power of a court to prevent an abuse of process (as to which see

Jago v. District Court (N.S.W.)

(1989) 168 CLR 23) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial. Nor does the existence in a trial judge or a court of powers to stay process or delay proceedings where the circumstances are such that the trial would be an abuse of process.”

80 It is submitted for the Accused that this case is more susceptible to a foredoomed to fail argument because the Crown adduced all its evidence at the first trial and has indicated that the same evidence will be adduced, and be relied upon, at a retrial. There is no foreseeable area in which the Crown anticipates adducing additional evidence at a further trial (PT376, 2006).

81 In these circumstances, which the Accused submits are exceptional in themselves, it is said to be appropriate to examine the case against the Accused on the first count by application of the foredoomed to fail test. The Accused submits that this process is facilitated further by the decisions of the Court of Appeal in 2003 and the Court of Criminal Appeal in 2005 which identified relevant principles in the context of this very case. Following the delivery of those judgments, the Crown has adduced the evidence at the first trial upon which it will seek to rely once again at a retrial in support of the first count. The Accused submits that the difficulties of predicting evidence to be called at a future trial, referred to in cases such as Smith and Tolmie, do not arise in this case.

82 As will be seen, the Accused contends that the first count is foredoomed to fail by reference to three elements - unlawful means, causation and deprivation. It was the issue of deprivation which attracted judicial attention in the Court of Appeal in 2003 and the Court of Criminal Appeal in 2005. It is that issue which became the focal point of the present application.

83 In my view, the approach articulated by Brooking, Byrne and Eames JJ in R v Smith informs the process to be undertaken in determining the foredoomed to fail ground in this case. The approach of Hunt CJ at CL in Tolmie is consistent with this approach. It is for the Accused to demonstrate clearly that the first count is doomed to failure. A likelihood that the prosecution will fail is not enough. It is for the Accused to establish that it is manifestly clear that the evidence is incapable of supporting at least one essential element of the offence contained in the first count. I will approach the resolution of this ground with this test in mind.

84 If the Accused succeeded in establishing the foredoomed to fail ground with respect to the first count, he would be entitled to a permanent stay of that count. Even if the Accused cannot discharge the heavy onus in that respect, Mr Clelland SC contends that the strength, or lack of strength, of the Crown case on the first count may be called in aid in support of the permanent stay application on the alternative basis contained in the broad abuse of process ground. The Accused submits that this is but one factor which may be taken into account with a range of other factors to demonstrate that the further prosecution of the first count constitutes an abuse of process.

85 At this point, it is as well to emphasise the functions which I am presently exercising. Consideration of the arguments advanced by the Accused concerning the first count will involve a detailed examination of parts of the judgments of the Court of Appeal and the Court of Criminal Appeal, the evidence adduced at trial before Sully J and several judgments of his Honour during the trial together with aspects of the summing up to the jury. I am not making rulings on admissibility of evidence for the purpose of the retrial. Nor am I determining whether the Accused has a case to answer for the purpose of the retrial. Rather, I am considering evidence relied upon and submissions advanced in support of the foredoomed to fail ground and the broad abuse of process argument.

The Crown Case

86 A broad statement of the Crown case against the Accused is contained in the following extract from the judgment of Spigelman CJ in Wills v Petroulias at 600-601 [3]-[7]:

“3. Between 1997 and 1999 the Opponent [Mr Petroulias] held office in the Australian Taxation Office ("ATO"). In September 1998 he became First Assistant Commissioner. The Crown alleges that at the time of such employment the Opponent was also involved in the planning, promotion and implementation of tax schemes with certain other persons and that he used his position as an officer of the ATO to facilitate favourable Advance Opinions and Private Binding Rulings issued by the ATO.

4 Private Rulings are issued under Pt IVAA of the Taxation Administration Act 1953 (Cth). The scheme of Private Binding Rulings is as follows:

· A person may apply to the Commissioner for a ruling as to how a tax law would apply to the person in relation to an arrangement (s14ZAF).

· The Commissioner is obliged to comply with an application for such a ruling, subject to certain exemptions (s14ZAL(1) and s14ZAN).

· There are circumstances, not presently material, in which a Commissioner may decline to make a ruling (s14ZAQ).

· A ruling given in this manner is binding by force of statute (s170BB of the Income Tax Assessment Act 1936 (Cth).

5 The Opponent and his partners established a business known as the Productivity Incentive Corporation ("PIC") which, inter alia, applied for Private Binding Rulings with respect to tax schemes described as Employee Benefit Arrangements ("EBAs"). In general terms the EBAs involved the payment by an employer of monies into a trust fund. The trust would lend money to individual employees for the purpose of purchasing units in the trust. The income of the trust would enure to the benefit of nominated employees. The eligibility of the employees to receive returns on the units would depend on continued service with the employer and the attainment of productivity or performance standards. The corpus would eventually vest in favour of the employee. The purpose of these arrangements was said to be to encourage employees to remain with their employer and also to act as an incentive for such employees to become more productive.

6 As is usually the case, the taxation treatment of the cash flows was of critical significance to the commercial viability of the arrangements. It was always accepted that each employee would be assessable on his or her share of income of the trust. Four issues arose:

· Would the employer's contributions be deductible at the time they were made?

· Would the employer be liable for fringe benefit tax under the Fringe Benefit Tax Assessment Act 1986 (Cth) with respect to its contributions?

· Would the general anti-avoidance provisions found in Pt IVA of the Income Tax Assessment Act apply to the scheme?

· Would the employee be assessable on the value of the units in the trust that each acquired?

7 The Crown case was that the Opponent used his position to ensure that officers under his direction issued favourable rulings with respect to applications made by the joint venture in which he had a financial interest. This was in contrast with the Opponent's intervention with respect to applications by other promoters of similar schemes, in the case of which he allegedly intervened to ensure that favourable rulings were not given. Indeed, the Crown contended that the Opponent was involved in the preparation and publication of a Public Ruling in which the ATO indicated a view opposed to the efficacy of the EBAs.”

87 At the risk of oversimplification, the evidence adduced by the Crown at the first trial fell into the following broad categories:

(a) the evidence of Mr Richard Morgan of the arrangement said to have been entered into between the Accused, Mr Morgan, Mr Panos, Mr Strong, Mr McLaren and Mr Gray including evidence of benefits allegedly received by the Accused for his part in the arrangement;

(b) evidence of a number of ATO officers concerning the issue of Advance Opinions and Private Binding Rulings - the principal witnesses in this class included Mr Lowman Chow, Mr Michael Charles, Mr James Targett and Mr Emmanuel Aivaliotes;

(c) documentary evidence obtained from a number of sources, including a storage area in Melbourne leased by the Accused in a false name - the Crown relied upon documentary material as evidencing the existence of the arrangement alleged by Mr Morgan and the steps taken by the Accused in drafting applications and otherwise assisting applicants and promoters and, on the ATO side, supporting applications made by those promoters for Advance Opinions and Private Binding Rulings and not supporting applications by competitors in this respect;

“Whatever the bare theory of the matter may be, I have to say to you that, as a matter of a comment of fact rather than a direction of law, I should think that I would find it very difficult to see how, if all of those issues had been resolved in favour of the Crown, it would be possible to find that, somewhere or other, there was something residual left over that showed an intention other than a culpable intention of the kind that the law requires to be demonstrated by the Crown.”

284 The Crown submitted that the requirement to prove that the Accused intentionally put the revenue at risk did not add a significant evidentiary burden to the prosecution case as evidence which established the use of dishonest means demonstrated that the Accused had acted intentionally to put the revenue of the Commonwealth at risk. The portion of the summing up referred to in the preceding paragraph reflected the way in which the Crown left this issue to the jury in its closing address.

285 With respect, I do not detect any error in the form of direction given by his Honour to the jury with respect to the element of intention. Further directions given by his Honour concerning this issue placed that direction in its factual context in this case.

286 I note that the submissions of the Accused under this heading relate to the first count only. I am not satisfied that the Accused has lost a substantial prospect of acquittal as a result of any allegedly erroneous directions given at the first trial with respect to the first count.

Failure of the Crown to Call Competent and Compellable Witnesses

287 The Accused submits that he is entitled to a permanent stay of the proceedings because of the failure of the Crown to call a number of witnesses at the first trial. Principal reliance was placed upon the failure of the Crown to call Mr Panos and Mr Strong.

288 Mr Clelland SC submitted that the Crown had identified the alleged arrangement between the Accused and others as being fundamental to the success of its case. On the Crown case, six people were parties to that arrangement, but only one person, Mr Morgan, was called by the Crown.

289 It was submitted for the Accused that Mr Panos and Mr Strong had made statements but were not called by the Crown at the first trial. It was submitted that no proper reason was given for failing to call those witnesses. It was submitted that Mr Panos, in particular, was central to the unfolding of the prosecution case. The Accused submitted that the Crown sought to, and were permitted to, tender documents which purported to be authored by or connected to Mr Panos, Mr Strong or other persons. The Crown invited the jury to draw inferences adverse to the Accused from the content of these documents. This, it was submitted, was unfair and oppressive. The non-calling of the witnesses, whom Mr Morgan had identified as being parties to the alleged agreement, was said to exacerbate the unfairness.

290 Mr Clelland SC relied upon statements concerning the duties of a prosecutor in relation to the calling of witnesses in Richardson v The Queen (1974) 131 CLR 116, Whitehorn v The Queen, The Queen v Apostilides (1984) 154 CLR 563 and R v Kneebone (1999) 47 NSWLR 450. It was submitted that failure to call a material witness may constitute an abuse of process justifying a stay of proceedings: Houston v Crannage (1989) 42 A Crim 446, citing Barton v The Queen (1980) 147 CLR 75 and R v Harry; Ex parte Eastway (1985) 39 SASR 203.

291 In support of the permanent stay application determined by Sully J on 21 February 2005, the Accused relied upon alleged unfairness deriving from an apparent intention on the part of the Crown not to call certain witnesses. These witnesses were Mr Panos and Mr Strong (page 17). His Honour was informed that the Crown was endeavouring to make contact with these persons for the purpose of having conferences with them. The Crown position was that the Crown would not call either of these two persons without having had a conference and having been thereby persuaded that the Crown ought to call them as witnesses (page 18). Sully J saw no basis upon which the position as it stood concerning Mr Panos and Mr Strong would strengthen the stay application then advanced.

292 I was informed by the Crown that Mr Panos and Mr Strong were not called as Crown witnesses because of the existence of evidence obtained by telephone intercepts of collusion with them by the Accused in relation to providing false explanations to any police officer who should approach them about the matter. In support of this submission, I was provided with copies of transcripts of telephone conversations between the Accused and Mr Strong on 2 and 4 October 1999 and between the Accused and Mr Panos on 3 October 1999. These transcripts were Exhibit D1 on the voir dire with respect to Pre-Trial Application No. 3 determined by Sully J on 14 April 2005. His Honour declined to admit the transcripts as evidence in the trial on relevance grounds. In my view, the transcripts disclose discussions between the Accused, Mr Strong and Mr Panos which may be characterised in the manner described in the Crown submission.

293 It was submitted for the Accused before me that the proposition put by the Crown that the telephone intercepts established a basis for not calling Mr Panos and Mr Strong was effectively rejected by Sully J when he ruled on the admissibility of the particular intercepts on 14 April 2005. I do not accept this submission. His Honour ruled that the transcripts were not admissible in the trial of the Accused, applying the relevance test in s.55 Evidence Act 1995. His Honour did not determine that there was an absence of collusion between the Accused, Mr Panos and Mr Strong for the purpose of devising answers to questions to be asked of them by police. The transcripts tend to support that description.

294 I was further informed by the Crown that Mr Panos and Mr Strong did not respond to written requests that they attend for a conference with the Crown representatives. In these circumstances, the Crown concluded that they would not be called in the Crown case at trial. This was the approach foreshadowed in February 2005 to Sully J.

295 The Crown submitted that the question whether Mr Panos and Mr Strong ought be called in the Crown case involved the exercise of prosecutorial discretion. In accordance with the procedures proposed in R v Kneebone at 460-461 [49]-[52], 462 [60]-[61], the Crown had invited these two persons to attend for a conference to allow an assessment to be made of their veracity and independence. Both persons declined to attend such a conference. Having regard to the information available to the Crown concerning their collusion with the Accused during the investigation, it was determined that they not be called in the Crown case.

296 The Crown submits that it was open to the Accused to call Mr Panos and Mr Strong in his case. Both persons are solicitors and, the Crown submitted, would no doubt be capable of giving coherent evidence in chief so that there was no prejudice by reason of the Accused not being able to cross-examine them. It may be taken, the Crown submitted, that Mr Panos and Mr Strong were articulate and intelligent persons. In these circumstances, there was no unfairness to the Accused.

297 The Crown submits that, apart from Mr Panos and Mr Strong, the defence during the course of submissions produced a list of names of almost every officer who had dealt with the Accused when he was in the ATO but was not called as a witness. No prior request had been made that these witnesses be called.

298 Sully J gave the jury written directions with respect to the absence of evidence from Messrs Panos, Strong, McLaren and Gray (MFI 105, Document 3, page 4). His Honour directed the jury that they must not speculate about why any of these persons was not called as a witness. His Honour repeated this direction in the summing up (SU46-47). His Honour declined to give a direction to the jury in terms of the rule in Jones v Dunkel (1959) 101 CLR 298.

299 In Dyers v The Queen (2002) 210 CLR 285, Gaudron and Hayne JJ said at 291 [6]:

“Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.”

300 I am not satisfied that the Crown’s failure to call Mr Panos and Mr Strong constituted a breach of the prosecutor’s duty to call all material witnesses. The Crown sought to confer with these witnesses in accordance with the practice referred to in R v Kneebone. It may readily be inferred that Mr Panos and Mr Strong were unwilling to attend a conference with the Crown representatives. Their telephone conversations with the Accused in October 1999 were such as to support a view that they were not at arm’s length from the Accused. There is nothing to indicate that these persons were not available to be called by the Accused in his case at the trial if he so wished. I see no basis for the grant of a stay arising from the Crown’s failure to call Mr Panos and Mr Strong at the first trial.

301 It was not until closing addresses that the defence identified other persons whom it was submitted that the Crown should call and in relation to whom a direction under Jones v Dunkel ought be given. In circumstances where the request to call such witnesses was left until that point in the trial, I do not see how this aspect weighs in the Accused’s favour on the present permanent stay application.

302 I am not satisfied that the failure of the Crown to call the nominated witnesses at the first trial provides a foundation for the relief sought by the Accused in this application.

Impact of the Passage of Time Since 1997

303 The Accused points to the passage of time between the events of 1997-1999 and the present time and the suggested adverse impact upon non-documentary evidence of conversations said to have been had with the Accused and, in relation to which, oral evidence is relied upon by the Crown. The Accused submits that this feature is of significance to the present permanent stay application.

304 It is not submitted by the Accused that actual evidence has been lost or that there is some other form of actual prejudice resulting from the effluxion of time.

305 The Accused was arrested and charged in March 2000. He had been aware since 1999 that his activities were under investigation. There was an opportunity for the Accused to test Crown witnesses at the committal proceedings which extended over some 36 days. Of course, those witnesses were called in the first trial and there was an opportunity to cross-examine them.

306 Apart from Mr Morgan, the Crown case appears to be largely a documentary case. As Sully J observed at the first trial, the evidence of Mr Morgan is under strong challenge from the Accused and there is a contest as to conversations alleged by him to have taken place with the Accused and also as to the payment of money to the Accused with respect to the alleged arrangement.

307 It may be taken that memories may fade, to an extent, in the passage of time between 1997 and 2006. However, it is not uncommon in criminal trials for significant factual contests to arise with respect to events which allegedly occurred years, and often many years, prior to trial. I see nothing in the present case which suggests that this aspect gives rise to particular difficulty or unfairness to the Accused. Indeed, apart from Mr Morgan, the heavy dependence of the Crown case upon documents would suggest that memory may pose less of a problem in this case than in many others.

308 A permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be rare: Jago v District Court (NSW) at 33-34; R v Johnson (2001) 125 A Crim R 564 at 568-569 [17]. I am not satisfied that the delay in this case, or any consequences which may flow from it with respect to the quality of evidence, is such as to warrant a permanent stay of the proceedings.

An Unmanageable and Unfair Trial?

309 It was submitted for the Accused that I should have regard to the size and complexity of the proceedings as part of the weighing process referred to in Walton v Gardiner at 396, although it was submitted that it was not necessary for me to determine that it was beyond the capacity of a jury to understand and follow the case.

310 I have already referred to the observations of Mason P in R v Petroulias at 690 [118] that the complexity of a trial cannot be the touchstone of whether the trial takes place at all.

311 It is true that the first trial extended over some months, with ongoing debate and the need for resolution by Sully J of certain arguments concerning, in particular, the element of deprivation in the first count. The Crown and the Accused have had the benefit of hearing the totality of the evidence adduced at the trial and the arguments advanced with respect to the evidence by both sides. Mr Clelland SC submitted that the retrial may take longer than the first trial because of the additional evidence and material available from the first trial (PT296.24, 2006). The Crown submitted that having had an opportunity to observe the evidence and the manner in which it was approached by the parties, the “Crown case would in fact be better the second time around” (PT305.8, 2006).

312 I note that the Accused had the benefit of senior and junior counsel, together with at least one instructing solicitor, throughout the first trial and during the proceedings to date before me. The Accused’s legal team has demonstrated a capacity to advance detailed arguments, written and oral, before Sully J and before me. The Accused and his legal representatives have acquired an additional understanding of the case from the first trial which ought allow an efficient and expeditious approach to the resolution of issues falling for determination in advance of and at the retrial. Mr Clelland SC acknowledged that the just and expeditious determination of the matter was in the Accused’s interests (PT52.16, 2006).

313 I do not underestimate the challenge posed by this retrial. Some complex issues are involved. It will be my responsibility to manage the trial and to give the jury appropriate directions as required by law. I will look to counsel for the Crown and the Accused for assistance in this regard: R v Wilson and Grimwade at 165. As the Victorian Court of Criminal Appeal observed in that case (at 176), juries can deal with long and complex trials and have been known to do so satisfactorily when given appropriate opportunity and assistance.

314 I am not satisfied that the volume and complexity of the issues and materials will result in an unmanageable and unfair trial.

Stress and Hardship for Accused

315 Mr Clelland SC pointed to the ongoing stress and hardship experienced by the Accused resulting from the continuation of these criminal proceedings. I have referred earlier (at paragraph 67) to some of the features relied upon in this respect.

316 It is a common, if not universal, feature of criminal proceedings that the Accused is subjected to stress whilst the proceedings are on foot. Many persons are remanded in custody until the trial is complete. The present Accused has been on bail. The Accused has not adduced evidence on this application concerning his personal circumstances or any subjective factors said to be relevant to the application. Accepting as I do that the Accused is under stress whilst these proceedings are on foot and that there are associated demands upon him by way of cost and inconvenience, I do not consider that these factors weigh heavily in the present application.

Public Interest Considerations

317 The cases have made clear that there is a strong public interest in the determination by the criminal courts on the merits of prosecutions for serious crime: Jago v District Court (NSW) at 33. The Crown submitted that it would bring the administration of justice into disrepute if a permanent stay was granted with respect to these prosecutions. The Accused submits, on the other hand, that the continuation of these proceedings, given their history, would tend to bring the administration of justice into disrepute.

318 In Wills v Petroulias (No. 2), Spigelman CJ at 626 [49] observed that “important public interests are involved in these prosecutions”. The allegations are serious involving, as they do, a claim of serious misconduct on the part of a person holding a very senior rank within the ATO.

319 In my view, there is a strong public interest in these prosecutions being heard and determined on their merits.

Accumulating the Various Factors

320 I have considered each of the factors relied upon by the Accused in support of the application on the broad abuse of process ground. I have concluded that each ground taken individually does not call for the grant of a permanent stay of the prosecutions.

321 It is appropriate that I consider the combined effect of the various factors relied upon by the Accused for the purpose of the weighing process referred to in Walton v Gardiner at 396. I am not satisfied that these factors, taken together, call for the exceptional remedy of a permanent stay of the proceedings. In reaching this view, I have had regard to all of the factors relied upon by the Accused and the legitimate public interest in the disposition of charges of serious offences and the need to maintain public confidence in the administration of justice.

Conclusion on Application on Broad Abuse of Process Grounds

322 For the reasons given, I am not satisfied that a permanent stay should be granted with respect to any of the counts in the indictment.

323 I note that almost all the arguments advanced by the Accused on the present application were directed towards the first count. The only reference to the second count was that relating to the evidence of Mr Morgan and that was pressed somewhat faintly. No separate argument was directed to the third count on the indictment.

324 Even if some basis had been demonstrated (and it has not been) for a permanent stay of the first count, I would not have been satisfied, in any event, that any basis had been made out for a permanent stay of the second and third counts on the indictment.

The Duplicity Argument

325 As I have determined that the first count should proceed to trial, it is appropriate that I consider the Accused’s argument that the first count is bad for duplicity. In this respect, I note that Sully J heard such an argument and determined it adversely to the Accused in the judgment of 21 February 2005 (pages 11-13). As Mason P observed in R v Petroulias at 682 [69]-[70], the Accused did not file a Notice of Contention before the Court of Criminal Appeal contending that the order for a stay of the first count should be upheld on other bases, including the duplicity ground.

326 The submissions of the Accused before me advance the same arguments as were made to, and rejected by, Sully J. I note that the written submissions of the Accused on this issue (MFI1, paragraphs 226-229) refer solely to evidence given in the committal proceedings by various witnesses. There is no reference, in support of this argument, to evidence given at the first trial. This observation tends to confirm the fact that the submissions of the Accused on fact and law in support of the present application reproduce those which were made to Sully J in February 2005.

327 Mr Clelland SC submits that the first count, as particularised, is patently duplicitous because the particulars indicate that the 75 Advance Opinions and Private Binding Rulings relied upon were issued by different people in different circumstances in response to different applications at different times. Reliance was placed upon Walsh v Tattersall (1996) 188 CLR 77. It was submitted that the line of authority identified in R v Hamzy (1994) 74 A Crim R 341 and R v Moussad (1999) 152 FLR 373 had no application to the present case.

328 The Crown submitted that the first count, in the circumstances of this case, involved a single criminal enterprise. Reliance was placed upon the decision of the NSW Court of Criminal Appeal in R v Moussad which accepted the concept of single criminal enterprise in rejecting a duplicity argument relating to a count alleging fraud under s.29D Crimes Act 1914 (Cth).

329 In rejecting the Accused’s argument in 2005, Sully J noted that, for the argument to be upheld, it would be necessary to distinguish the line of authority in New South Wales typified by the decisions of the Court of Criminal Appeal in R v Hamzy and R v Moussad. Sully J concluded that the present case fell within the principles explained by Lord Diplock in Director of Public Prosecutions v Merriman (1973) AC 584 at 607 given that the acts alleged against the Accused could fairly be regarded as forming part of the same transaction or criminal enterprise. Sully J observed that the decision of the Court of Criminal Appeal in R v Moussad involved a careful examination of the Australian authorities which refer to the principles in Merriman. Sully J concluded that the present case had been framed and particularised as a one count enterprise and that, in this case, as in R v Moussad “what is telling … is the pattern which emerges and makes it plain that there is in existence a fraudulent enterprise … to take the individual acts one by one does not reveal the true overall situation”.

330 Sully J concluded (page 13.5):

“In my opinion the decision in

Moussad

(supra), while ever it stands as good law, approves a process of reasoning which, applied to the facts and circumstances as now alleged by the Crown against the applicant, entails that the present duplicity point cannot succeed.”

331 I have had regard to the submissions advanced on behalf of the Accused and the Crown on the duplicity point for the purpose of my own independent assessment of the objection. I am satisfied that the present case is characterised appropriately as one involving an alleged course of conduct forming part of the same transaction or criminal enterprise. This is not a case where there is an individual actual loss to the revenue said to flow from each of the rulings or opinions issued. Rather, the fraud involves the risk to the revenue flowing from a course of conduct by the Accused over a period of time.

332 It is clear that the determination whether a charge offends for duplicity involves a question of fact and degree in each case and that this depends upon the particular circumstances of the case: Walsh v Tattersall at 108; Carcosa Pty Limited v Czerwaniw (1977) 93 A Crim R 287 at 296-297; R v Moussad at 383 [61].

333 Having considered the arguments advanced on behalf of the Accused and the Crown, I am satisfied that the first count is not bad for duplicity. I have reached the same conclusion as Sully J on the duplicity point.

334 I reject the submission that the first count is bad for duplicity.

Conclusion

335 In summary:

(a) I am not satisfied that the first count is foredoomed to fail;

(b) I am not satisfied that the Accused has demonstrated a basis for the grant of a permanent stay of all or any of the counts on the indictment on the broad abuse of process ground, taking the factors relied upon both individually and cumulatively;

336 Before concluding these reasons, it is appropriate to repeat an observation made during the course of the judgment. I have approached the issues and arguments advanced by the Accused (especially concerning the first count) in some detail and by reference to the evidence at the first trial and judgments and directions given by Sully J during that trial. This has involved a retrospective process. I have determined that no basis has been demonstrated to prevent the ordinary processes of justice from operating by way of trial by jury. I will proceed now to determine all outstanding pre-trial applications and objections before a jury is empanelled. The trial will proceed, of course, by reference to evidence to be adduced before the jury empanelled at the retrial. Although the Crown has indicated an intention to advance the same case, it cannot be assumed that the evidence will be an exact replica of that given at the first trial. I will consider any submissions made during the trial by reference to the evidence which is actually given at the retrial, including any submissions concerning appropriate directions to the jury. In other words, the ordinary trial processes will apply to this case.

337 I refuse the application to quash the first count on the indictment. I refuse the application for a permanent stay of all or any of the counts on the indictment.

**********

Citations

R v Petroulias (No. 1) [2006] NSWSC 788

Most Recent Citation

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29

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Statutory Material Cited

6

Petroulias v Wills [2002] NSWSC 1190

R v Turner (No 4) [2001] TASSC 51

Wills v Petroulias [2003] NSWCA 390

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CITATION:	R (Cth) v Petroulias (No. 1) [2006] NSWSC 788
HEARING DATE(S):	20 July 2006, 21 July 2006, 24 July 2006, 25 July 2006, 26 July 2006, 27 July 2006, 28 July 2006
JUDGMENT DATE :	8 August 2006
JUDGMENT OF:	Johnson J at 1
DECISION:	1. The application to quash the first count on the indictment is refused; 2. The application for a permanent stay of all or any of the counts on the indictment is refused.
CATCHWORDS:	CRIMINAL LAW - indictment alleging offences under ss.29D, 70 and 73 Crimes Act 1914 (Cth) - discharge of jury unable to agree at first trial - Crown determines to proceed by way of retrial - application before second trial to stay or quash s.29D count on basis that it is foredoomed to fail - nature of test on foredoomed to fail ground - argument by reference to evidence adduced at first trial and decisions made by judge at first trial - use of decisions made at first trial in determining application to stay or quash before second trial - held: s.29D count not foredoomed to fail - application to stay all counts on grounds of abuse of process - applicable principles - held: permanent stay refused - application to quash s.29D count on duplicity ground - s.29D count based upon single criminal enterprise - held: s.29D count not bad for duplicity
LEGISLATION CITED:	Crimes Act 1914 (Cth) Criminal Procedure Act 1986 Criminal Appeal Act 1912 Jury Act 1977 Evidence Act 1995 Service and Execution of Process Act 1992 (Cth)
CASES CITED:	Petroulias v Wills (2002) 174 FLR 258 Petroulias v Wills (2003) 138 A Crim R 182 Wills v Petroulias (2003) 58 NSWLR 598 Wills v Petroulias (No. 2) (2003) 58 NSWLR 618 Petroulias v Wills (2004) 56 ATR 608 R v Petroulias (2005) 62 NSWLR 663 Doney v The Queen (1990) 171 CLR 207 R v Smith (1995) 1 VR 10 R v Tolmie (NSW Court of Criminal Appeal, 7 December 1994, unreported) R v Jasper (2003) 139 A Crim R 329 Rogers v The Queen (1994) 181 CLR 251 R v GK (2001) 53 NSWLR 317 R v ELD [2004] NSWCCA 219 R v Edwards (1998) 2 VR 354 R v Georgiou and Harrison (2005) 153 A Crim R 288 R v El Hassan (2001) 126 A Crim R 477 Segal v Waverley Council (2005) 64 NSWLR 177 Indooroopilly Children’s Services (Qld) Pty Limited v Commissioner of Taxation (2006) FCA 734 Valentine v Eid (1992) 27 NSWLR 615 Nominal Defendant v Manning (2000) 50 NSWLR 139 R v Towner (1991) 56 A Crim R 221 R v Blair (1985) 1 NSWLR 584 R v Rogers (No. 2) (1992) 29 NSWLR 179 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 Walton v Gardiner (1993) 177 CLR 378 Hunter v Chief Constable of the West Midlands Police (1982) AC 529 Williams v Spautz (1992) 174 CLR 509 Smith v The Queen (1994) 181 CLR 338 Jago v District Court (NSW) (1989) 168 CLR 23 R v WRC (2003) 59 NSWLR 273 The Queen v Carroll (2002) 213 CLR 635 R v Chairman of London County Sessions; Ex parte Downes (1953) 37 Cr App R 148 Bowe v The Queen [2001] UKPC 19 Island Maritime Limited v Filipowski [2006] HCA 30 Nudd v The Queen (2006) 80 ALJR 614 R v Ronen (2004) 62 NSWLR 707 Weiss v The Queen (2005) 80 ALJR 444 Essenbourne Pty Limited v Commissioner of Taxation (2002) 51 ATR 629 Walstern Pty Limited v Commissioner of Taxation (2003) 138 FCR 1 Spotlight Stores Pty Limited v Commissioner of Taxation (2004) 55 ATR 745 Pridecraft Pty Limited v Commissioner of Taxation (2004) 213 ALR 450 Black v The Queen (1993) 179 CLR 44 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Royall v The Queen (1991) 172 CLR 378 R v Franklin (2001) 3 VR 9 Pinkstone v The Queen (2004) 219 CLR 444 R v Iannelli (2003) 56 NSWLR 247 Peters v The Queen (1998) 192 CLR 493 Spies v The Queen (2000) 201 CLR 603 R v Cohen, UK Court of Appeal, 28 July 1992, unreported) Whitehorn v The Queen (1983) 152 CLR 657 Richardson v The Queen (1974) 131 CLR 116 The Queen v Apostilides (1984) 154 CLR 563 R v Kneebone (1999) 47 NSWLR 450 Houston v Crannage (1989) 42 A Crim 446 Barton v The Queen (1980) 147 CLR 75 R v Harry; Ex parte Eastway (1985) 39 SASR 203 Jones v Dunkel (1959) 101 CLR 298 Dyers v The Queen (2002) 210 CLR 285 R v Hamzy (1994) 74 A Crim R 41 R v Moussad (1999) 152 FLR 373 Director of Public Prosecutions v Merriman (1973) AC 584 R v Johnson (2001) 125 A Crim R 564 R v Wilson and Grimwade (1995) 1 VR 163 Lustre Hosiery Ltd v York (1935) 54 CLR 134 Anglim and Cooke v Thomas (1974) VR 363 Director of Public Prosecutions v Parsons (1993) 1 VR 1 R v R (1989) 44 A Crim R 404 Walsh v Tattersall (1996) 188 CLR 77 Carcosa Pty Limited v Czerwaniw (1977) 93 A Crim R 287 Pitcher v Langford (1991) 23 NSWLR 142
PARTIES:	Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)
FILE NUMBER(S):	SC 2002/93
COUNSEL:	Mr P Hastings QC; Mr C Hoy (Crown) Mr N Clelland SC; Mr G Livermore (Accused)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

Paragraph(s)
The Present Applications	2
History of Proceedings	3-16
Evidence on the Present Pre-Trial Applications	17-20
The Role of the Judgments of Sully J from the First Trial	21-54
General Principles of Abuse of Process	55-70
Principles Concerning the “Foredoomed to Fail” Ground	71-85
The Crown Case	86-91
The First Count - Section 29D Crimes Act 1914 (Cth)	92-95
· A Defence Concession	96-99
· The Element of Deprivation	100-102
· The 2003 Court of Appeal Judgments	103-111
· Sully J’s Judgment of 21 February 2005	112-113
· The 2005 Court of Criminal Appeal Judgment	114-133
· The Trial Proceeds	134-137
· Sully J’s Judgment of 27 June 2005	138
· Sully J’s Judgment of 19 July 2005	139-144
· Directions to Jury Concerning Element of Deprivation	145-149
· Response to Certain Jury Questions	150-156
· Is the First Count Foredoomed to Fail on the Element of Deprivation?	157-174
· The Element of Causation	175-208
· The Element of Dishonest Means	209-233
· Conclusion on Foredoomed to Fail Ground Concerning First Count	234-235
The Broad Abuse of Process Ground	236-249
· The Submission that the Crown Case on the First Count is Insufficient	250-255
· The Submission that No Reasonable Jury Could Accept the Evidence of Mr Morgan	256-266
· Conduct of the Crown in Persisting to Prosecute Various Versions of s.29D Charge	267-271
· The Submission that the Number, Variety, Extent and Duration of the Proceedings Renders Their Continuation Oppressive and Vexatious	272-276
· The Submission that the Accused Lost a Substantial Prospect of Acquittal Because of Erroneous Directions at First Trial	277-286
· Failure of the Crown to Call Competent and Compellable Witnesses	287-302
· Impact of the Passage of Time Since 1997	303-308
· An Unmanageable and Unfair Trial?	309-314
· Stress and Hardship for Accused	315-316
· Public Interest Considerations	317-319
· Accumulating the Various Factors	320-321
· Conclusion on Application on Broad Abuse of Process Grounds	322-324
The Duplicity Argument	325-334
Conclusion	335-337