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R v Petroulias (No. 8)

R v Petroulias (No. 8)

Case [2007] NSWSC 82 15 February 2007

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CITATION: R (Cth) v Petroulias (No. 8) [2007] NSWSC 82

HEARING DATE(S): 30 January 2007, 31 January 2007, 5 February 2007, 6 February 2007, 7 February 2007, 8 February 2007

JUDGMENT DATE :
15 February 2007

JUDGMENT OF: Johnson J at 1

DECISION: The application of the Accused under s.138 Evidence Act 1995 to exclude evidence obtained pursuant to telephone intercept warrant and search warrants is refused.

CATCHWORDS: CRIMINAL LAW - admissibility of evidence obtained under telephone intercept warrants and search warrant - whether evidence improperly obtained under s.138 Evidence Act 1995 - defence contention that false and misleading information included in warrant applications - defence contention that senior Australian Taxation Office officer deliberately and intentionally provided false and misleading information to police officers making warrant applications - held that some information in warrant applications was inaccurate - held that inclusion of inaccurate information was not deliberate, intentional or reckless - whether inadvertent inclusion of inaccurate information was improper for the purposes of s.138 - held that impropriety not established - application refused

LEGISLATION CITED: Evidence Act 1995
Telecommunications (Interception) Act 1979 (Cth)
Crimes Act 1914 (Cth)

CASES CITED: R v Petroulias (No. 5) [2006] NSWSC 1155
R v Petroulias (No. 7) [2007] NSWSC 16
R v Petroulias (No. 6) [2006] NSWSC 1422
R v Petroulias (No. 9) [2007] NSWSC 84
R v Petroulias (No. 1) [2006] NSWSC 788
Robinson v Woolworths Limited (2005) 64 NSWLR 612
Briginshaw v Briginshaw (1938) 60 CLR 336
B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440
Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Palmer v Dorman [2005] NSWCA 361
Ridgeway v The Queen (1995) 184 CLR 19
R v Cornwell (2003) 57 NSWLR 82
Director of Public Prosecutions v AM (2006) 161 A Crim R 219
R v Dalley (2002) 132 A Crim R 169
Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149
R v Turner (No. 14) [2001] TasSC 124
R v Petroulias (2005) 62 NSWLR 663
Goodrich Aerospace Pty Limited v Arsic [2006] NSWSC 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
CRIMINAL LIST

Johnson J

15 February 2007

2002/93 Regina v Nikytas Nicholas Petroulias (No. 8)
JUDGMENT (objection under s.138 Evidence Act 1995 to admissibility of evidence obtained pursuant to search warrants and telephone intercept warrant upon the ground that evidence was improperly obtained)

1 JOHNSON J: The Accused, Nikytas Nicholas Petroulias, objects to the tender of two classes of evidence upon the grounds that evidence was improperly obtained within the meaning of s.138 Evidence Act 1995.

2 The first class of…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Petroulias (No. 8)

Details

AGLC: R v Petroulias (No. 8) [2007] NSWSC 82
Case: [2007] NSWSC 82
Decision Date: 15 February 2007

CaseChat Overview and Summary

In this case, the respondent, Petroulias, was charged with various offences related to tax evasion. The dispute centred on the admissibility of evidence obtained through telephone intercept warrants and a search warrant. The respondent argued that the evidence was improperly obtained and should be excluded under section 138 of the Evidence Act 1995. The primary legal issues were whether there was false and misleading information in the warrant applications, and if so, whether the inclusion of such information rendered the evidence inadmissible.

The court examined the evidence provided by the respondent and found that some information in the warrant applications was inaccurate. However, the court held that the inclusion of inaccurate information was not deliberate, intentional, or reckless. The court found that the senior Australian Taxation Office officer who provided the information to the police officers making the warrant applications did not intend to provide false or misleading information. The court held that the inadvertent inclusion of inaccurate information did not establish the impropriety required for the purposes of section 138 of the Evidence Act 1995. Consequently, the application to exclude the evidence was refused.

The court's reasoning was based on the distinction between deliberate and inadvertent inclusion of inaccurate information in the warrant applications. The court held that the inadvertent inclusion of inaccurate information did not constitute the type of impropriety that would render the evidence inadmissible. The court emphasised that the integrity of the warrant process could be maintained without excluding evidence obtained through warrants that contained inadvertent inaccuracies. The respondent's application to exclude the evidence was dismissed, and the evidence was deemed admissible in the criminal proceedings against the respondent.

Orders