R v Petroulias (No. 6) - [2006] NSWSC 1422

Reported Decision:
182 A Crim R 1

New South Wales

Supreme Court

CITATION: R (Cth) v Petroulias (No. 6) [2006] NSWSC 1422

HEARING DATE(S): 11 December 2006

JUDGMENT DATE :
12 December 2006

JUDGMENT OF: Johnson J at 1

EX TEMPORE JUDGMENT DATE: 12/12/2006

DECISION: See paragraphs 36 to 41.

CATCHWORDS: CRIMINAL LAW - application for voir dire in support of objection to evidence as being improperly obtained for purpose of s.138 Evidence Act 1995 - similar voir dire in advance of earlier trial of accused on same grounds - lengthy oral evidence given on voir dire - objection failed at earlier trial and evidence admitted - whether Crown witnesses ought be recalled to give evidence on voir dire before retrial - whether transcript of evidence given on earlier voir dire ought be received

LEGISLATION CITED: Evidence Act 1995

CASES CITED: R v Petroulias (No. 1) [2006] NSWSC 788
R v Callaghan (2001) 4 VR 79
R v Lars (1994) 73 A Crim R
R v Meier (NSW Court of Criminal Appeal, 21 May 1996, unreported, BC9601936)
R v Taylor (NSW Court of Criminal Appeal, 18 April 1995, unreported, BC9507219 at pages 25-26)
Briginshaw v Briginshaw (1938) 60 CLR 336
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

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

FILE NUMBER(S): SC 2002/93

COUNSEL: Mr P Hastings QC; Mr C Hoy (Crown)
Mr R Sutherland SC; Mr G Walsh (Accused)

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

LOWER COURT DATE OF DECISION: ---

LOWER COURT MEDIUM NEUTRAL CITATION: ---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

12 December 2006

2002/93 Regina v Nikytas Nicholas Petroulias (No. 6) (on procedure for adducing evidence on voir dires concerning objections to evidence under s.138 Evidence Act 1995 )
JUDGMENT

1 JOHNSON J: By way of pre-trial application, the Accused seeks a voir dire concerning two areas of objection. Both objections were taken, in March 2005, before Sully J who later presided over a trial at which the jury could not agree upon a verdict and was discharged.

2 The Accused's re-trial is to proceed before me, and a jury, in March 2007. The two areas of objection are:

(a) objection under s.138 Evidence Act 1995 to the admissibility of material obtained pursuant to several telephone intercept warrants and search warrants, upon the grounds that the evidence was improperly obtained in that the warrants were procured by fraud or misrepresentation (“the Warrant Voir Dire”);

(b) objection under s.138 Evidence Act 1995 to the admissibility of the whole of the evidence of Richard Llewellyn Morgan upon the grounds that it was improperly obtained as a result of alleged conduct of certain members of the Australian Federal Police (“the Morgan Voir Dire”).

The Warrant Voir Dire

3 Before Sully J, the Warrant Voir Dire involved the taking of evidence, including lengthy cross-examination, from Mr Michael O'Neill, a solicitor who was, in March 2005, an Assistant Commissioner of Taxation.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 1422
Decision Date: 12/12/2006

CaseChat Overview and Summary

The case involved the respondent, Petroulias, who was being tried for criminal charges. The central issue in the case was the admissibility of certain evidence, which Petroulias argued was obtained improperly under section 138 of the Evidence Act 1995. This led to an application for a voir dire to determine whether the evidence should be excluded. The voir dire was held in the context of a retrial, as a similar objection had been unsuccessfully raised in a previous trial. Extensive oral evidence was presented during the voir dire, leading to the original objection being rejected and the evidence being admitted.

The legal issues before the court involved whether the Crown's witnesses should be recalled to give evidence in the voir dire before the retrial and whether the transcript of the evidence given in the earlier voir dire should be received as part of the current proceedings. The court had to balance the need for a fair trial with the practicalities of re-litigating issues that had already been determined in a previous trial. It was also necessary to consider the relevance and reliability of the evidence provided in the earlier proceedings.

The court ultimately decided that the Crown's witnesses did not need to be recalled for the voir dire. Instead, the transcript of the evidence from the earlier voir dire was deemed sufficient for the court to make its decision. This decision was based on the principle that the evidence from the previous trial was relevant and reliable, and recalling the witnesses would be an unnecessary duplication of effort. The court found that the evidence was properly obtained and admissible under the relevant provisions of the Evidence Act. The objection to the evidence was therefore dismissed.

The court ordered that the evidence in question would be admissible in the retrial of Petroulias. The court also noted that its decision was based on the principle that the evidence was relevant and reliable, and that recalling the witnesses would not contribute any additional useful information. The court emphasised the importance of ensuring that trials are conducted fairly and efficiently, and that the admissibility of evidence is determined on the basis of its relevance and reliability rather than through unnecessary duplication of effort.

Orders