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Supreme Court 16 August 2004

Petroulias v Wills

[2004] NSWSC 739

Fraud & dishonesty
CRIMINAL LAW COMMITTAL PROCEEDINGS NO QUESTION OF PRINCIPLE

Citation: Petroulias v Wills [2004] NSWSC 739
Court: Supreme Court of New South Wales, Common Law Division (Criminal)
Date: 16 August 2004
Judge(s): Sperling J

Background

The plaintiff, a former officer of the Australian Taxation Office, was charged with defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth). The allegation was that he had, by dishonest means, caused the issuance of Private Binding Rulings and Advance Opinions to taxpayers, thereby prejudicing the Commissioner of Taxation's rights and opportunities in relation to determining the correct taxation consequences of those arrangements.

The matter had a lengthy procedural history. Committal proceedings began in the Local Court in November 2001. The charge was reformulated on multiple occasions, and earlier orders for committal were the subject of appeals that reached the Court of Appeal. Ultimately, the Court of Appeal directed that the case be remitted to the magistrate to formulate and make an order for committal in accordance with the evidence.

The plaintiff then sought leave to appeal to the Supreme Court on two grounds: first, that the committal order itself was wrongly made; and second, that the Local Court magistrate had erred in dismissing his application for costs of the committal proceedings.

  • Whether the magistrate's order committing the plaintiff for trial on the reformulated fraud charge was legally sound, given the history of charge reformulations
  • Whether the multiple reformulations of the charge during committal proceedings constituted "exceptional circumstances" under s 41A(2A)(d) of the Justices Act 1904, such that it was just and reasonable to award the plaintiff his costs of the committal

Decision

On the committal order, Sperling J found no merit in the appeal. The Court of Appeal had already determined that sufficient evidence existed to commit the plaintiff for trial, and had directed the magistrate to make an order accordingly. The reformulated charge, as ultimately settled, accorded with the third species of deprivation identified by Toohey and Gaudron JJ in Peters (1998) 192 CLR 493, namely conduct that prejudicially affects a person in relation to a lawful right, interest, opportunity or advantage. The committal order was properly made on that basis.

On the costs question, the magistrate had found no exceptional circumstances under s 41A(2A)(d) of the Justices Act 1904. Sperling J agreed. The reformulation of charges in the course of committal proceedings is not uncommon, and the plaintiff had not established that costs incurred were wasted as a result. The magistrate's determination disclosed no error, let alone an error of law.

Sperling J granted leave to appeal in order to ensure final disposition of the matter, but dismissed the summons on the merits of both grounds. The plaintiff was ordered to pay the defendant's costs of the summons.

Orders Made

  • Leave to appeal granted
  • Summons dismissed
  • The plaintiff to pay the defendant's costs of the summons

Key Takeaways

  • Reformulating a charge during committal proceedings is a commonplace occurrence and does not, of itself, constitute "exceptional circumstances" justifying a costs award in favour of a defendant under s 41A(2A)(d) of the Justices Act 1904.
  • Under the fraud provisions examined, it is not necessary to prove actual pecuniary loss by the Commonwealth. It is sufficient that the conduct prejudicially affected a lawful right, interest, opportunity or advantage, as confirmed by the High Court in Peters (1998) 192 CLR 493.
  • Where the Court of Appeal has already determined that evidence was sufficient to support committal and has directed the magistrate to make an order accordingly, that finding is not open to re-agitation on a further application for leave to appeal to the Supreme Court.
  • No demonstrated error in a magistrate's discretionary costs determination will support appellate intervention; the absence of any error of law is fatal to such a challenge.
  • Leave to appeal may be granted even where the appeal lacks sufficient merit, where doing so ensures the matter is disposed of with finality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 29D
- Justices Act 1904 (NSW), s 41A

Cases:
- Peters (1998) 192 CLR 493
- Wills v Petroulias (No 1) (2003) 204 ALR 162
- Wills v Petroulias (No 2) (2003) 204 ALR 180