R v Petroulias (No. 9) - [2007] NSWSC 84

CITATION: R (Cth) v Petroulias (No. 9) [2007] NSWSC 84

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 to exclude the evidence of Richard Llewellyn Morgan under s.138 Evidence Act 1995 is refused.

CATCHWORDS: CRIMINAL LAW - application under s.138 Evidence Act 1995 to exclude entirety of evidence of Crown witness - Accused contends that evidence improperly obtained - contention that police investigators acted improperly in circumstances where witness gives induced statement and receives use derivative use undertaking under s.9(6) Director of Public Prosecutions Act 1983 (Cth) - no impropriety established - application refused

LEGISLATION CITED: Evidence Act 1995
Director of Public Prosecutions Act 1983 (Cth)

CASES CITED: R v Petroulias (No. 6) [2006] NSWSC 1422
R v Petroulias (No. 8) [2007] NSWSC 82
R v Petroulias (No. 1) [2006] NSWSC 788
Robinson v Woolworths Limited (2005) 64 NSWLR 612
Ridgeway v The Queen (1995) 184 CLR 19
Director of Public Prosecutions (Cth) v Ho (1998) 102 A Crim R 37
Rozenes v Beljajev [1995] 1 VR 53
Rozenes v His Honour Judge Kelly [1996] 1 VR 320
Ganin v NSW Crime Commission (1993) 32 NSWLR 423
Registrar, Court of Appeal v Craven (1994) 77 A Crim R 410
Rogan v Hyde (1995) 84 A Crim R 519
Bunning v Cross (1979) 141 CLR 54

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. 9)
JUDGMENT (objection under s.138 Evidence Act 1995 upon the ground that evidence to be given by Richard Llewellyn Morgan was improperly obtained)

1 JOHNSON J: The Accused, Nikytas Nicholas Petroulias, objects to the entirety of the evidence to be given by a Crown witness, Richard Llewellyn Morgan, upon the ground that his evidence was improperly obtained within the meaning of s.138 Evidence Act 1995.

Application for Voir Dire

2 The Accused sought a voir dire with respect to this objection. The Crown did not contend that this was an inappropriate matter for a voir dire. Submissions were made with respect to the nature and form of evidence to be received on the voir dire, given that a voir dire had been conducted, in aid of a similar objection, before Sully J in March 2005 in advance of the first trial. A number of witnesses were called on that voir dire in 2005 including Federal Agents Wills and Dametto and Mr Morgan himself. Mr Sutherland SC, for the Accused, submitted that the appropriate course was for the Court to receive the…

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: [2007] NSWSC 84
Decision Date: 15 February 2007

CaseChat Overview and Summary

In the case of R v Petroulias (No. 9), the appellant faced a criminal trial in which the Crown sought to rely on evidence provided by a witness. The appellant contested the admissibility of the entire body of evidence from this witness, arguing that the evidence had been obtained improperly. The appellant claimed that police investigators acted improperly by securing a statement from the witness that was influenced, and that this statement was given under a derivative use undertaking, as outlined in section 9(6) of the Director of Public Prosecutions Act 1983 (Cth). The case was heard in a relevant court where the primary issue was whether the evidence should be excluded due to alleged impropriety in its acquisition.

The court was required to determine whether there was any impropriety on the part of the police investigators that would render the evidence inadmissible. The central legal question revolved around whether the influence exerted on the witness amounted to impropriety, and if the acceptance of the derivative use undertaking further tainted the evidence. The court examined the conduct of the police and the circumstances under which the statement was obtained to ascertain whether these factors constituted a breach of legal standards or principles that would justify the exclusion of the evidence.

The court found no evidence of impropriety in the conduct of the police investigators. It concluded that the influence on the witness, while present, did not rise to the level of impropriety that would render the evidence inadmissible. Additionally, the court determined that the acceptance of the derivative use undertaking did not taint the evidence to the extent required to exclude it. Therefore, the application to exclude the evidence was refused by the court.

No further orders were made by the court in this instance. The decision stands that the evidence in question is admissible, and the trial will proceed with this evidence being considered by the court.

Orders