Wills v Petroulias

Case [2003] NSWCA 286


Reported Decision:

58 NSWLR 598

Court of Appeal


CITATION: WILLS v PETROULIAS [2003] NSWCA 286 revised - 16/12/2003
HEARING DATE(S): 27 August 2003
JUDGMENT DATE:
3 October 2003
JUDGMENT OF: Spigelman CJ at 1; Handley JA at 93; Santow JA at 94
DECISION: Leave to appeal granted. Appeal allowed with costs.
CATCHWORDS: CRIMINAL LAW - Defrauding Commonwealth - element of loss - actual loss - risk or imperilment of revenue - loss of opportunity to litigate - where alleged dishonest procurement of private binding ruling - whether necessary to demonstrate ruling incorrect - CRIMINAL LAW - Committal process - appropriate orders upon identification of error of law in committal - availability of Basha inquiry
LEGISLATION CITED: Crimes Act 1914 (Cth) ss 29D, 70, 73
Crimes (Local Courts Appeal and Review) Act 2001 Sch 1
Fringe Benefits Tax Assessment Act 1986 (Cth)
Income Tax Assessment Act 1936 (Cth) ss 65, 109, 170BB
Justices Act 1902 ss 41, 104, 109, 110
Taxation Administration Act 1953 (Cth) ss 147ZAF, 147ZAL, 147ZAN, 147ZAQ
CASES CITED: Basha v R (1989) 39 A Crim R 337
Board of Trade v Owen [1957] AC 602
Essenbourne Pty Ltd v Commissioner of Taxation [2002] FCA 1577
Kolalich v Director of Public Prosecutions of New South Wales (1991) 173 CLR 222
MacLeod v The Queen (2003) 77 ALJR 1047
Peters v The Queen (1998) 192 CLR 493
R v Bassey (1931) 22 Cr App R 160
R v Scott [1975] AC 819
R v Taylor (1997) 6 Tas R 310
R v Terry [1984] 1 AC 374
R v Withers [1975] AC 842
R v Withers [1974] 1 QB 414
Spies v The Commonwealth Bank of Australia (1991) 24 NSWLR 691
Spies v The Queen (2000) 201 CLR 603
The Queen v Kastratovic (1986) 42 SASR 59
Wai Yu-tsang [1992] 1 AC 269
Welham v Director of Public Prosecutions [1961] AC 103
Wigan v Edwards (1973) 47 ALJR 586

PARTIES :

Gary Andrew Wills (Claimant)
Nikytas Nicholas Petroulias (Opponent)

FILE NUMBER(S): CA 40219/03
COUNSEL: PS Hastings QC / CP Hoy (Claimant)
R Richter QC / N Clelland (Opponent)
SOLICITORS: Commonwealth Director of Public Prosecutions (Claimant)
Diamond Peisah & Co. (Opponent)
LOWER COURTJURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 12242/02
LOWER COURT
JUDICIAL OFFICER :
Simpson J


                          CA 40219/03

                          SPIGELMAN CJ
                          HANDLEY JA
                          SANTOW JA

                          Friday 3 October 2003
Gary Andrew WILLS v Nikytas Nicholas PETROULIAS


      FACTS
      Nikytas Nicholas Petroulias (the Opponent) was committed for trial by a magistrate upon a charge of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth). On appeal from the committal, the Opponent argued that the Claimant had failed to demonstrate an element of the charge, namely loss to the Commonwealth. The Opponent, an Assistant Tax Commissioner, had been involved in the promotion of an employee incentive scheme which relied upon private binding rulings issued by the Australian Taxation Office declaring that the scheme would yield certain taxation benefits for participating employers. The trial judge found that the…

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AGLC
Wills v Petroulias [2003] NSWCA 286
Case
[2003] NSWCA 286
Decision Date

CaseChat Overview and Summary

The parties involved were Wills (the applicant) and Petroulias (the respondent). The dispute concerned the respondent's alleged defrauding of the Commonwealth through the dishonest procurement of a private binding ruling. The matter came before the Supreme Court of New South Wales, Court of Criminal Appeal.

The central legal issues before the court were whether it was necessary to demonstrate that the private binding ruling obtained by the respondent was incorrect to establish the element of loss for the offence of defrauding the Commonwealth, and what orders were appropriate upon the identification of an error of law in the committal process, specifically concerning the availability of a *Basha* inquiry.

The Court considered the nature of the offence of defrauding the Commonwealth, particularly in the context of obtaining a private binding ruling. It was held that the offence does not necessarily require proof that the ruling itself was incorrect. Instead, the focus is on the dishonest procurement of the ruling, and the potential or actual loss to the Commonwealth revenue, which can include the loss of an opportunity to litigate or challenge the ruling. The Court also addressed the appropriate response to an error of law identified in the committal process, noting that a *Basha* inquiry might be relevant in certain circumstances to determine if the committal should be quashed.

Leave to appeal was granted, and the appeal was allowed with costs. The order quashing the committal was set aside.

Orders

Orders of the court

Leave to appeal granted. Appeal allowed with costs. Order quashing the committal set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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