Citation: R (Cth) v Petroulias (No. 6) [2006] NSWSC 1422
Court: Supreme Court of New South Wales
Date: 12 December 2006
Judge(s): Johnson J
Background
The accused faced a Commonwealth criminal trial in the Supreme Court. A first trial before Sully J ended with the jury unable to agree on a verdict and being discharged. A retrial was listed before Johnson J for March 2007.
Two pre-trial objections under s 138 of the Evidence Act 1995 had been raised and rejected at the first trial. The first concerned the admissibility of material obtained under telephone intercept and search warrants, on the basis that those warrants had been procured by fraud or misrepresentation ("the Warrant Voir Dire"). The second concerned the entirety of one witness's evidence, said to have been improperly obtained through misconduct by certain Australian Federal Police officers ("the Morgan Voir Dire").
The accused sought to run both voir dires again before Johnson J in advance of the retrial. The procedural dispute that came before the court was narrower: whether Crown witnesses who had already given extensive evidence on the earlier voir dires should be required to give oral evidence again, or whether the transcripts of their prior evidence should simply be received.
Legal Issues
- Whether Johnson J was bound by the rulings of Sully J on the same objections from the first trial
- Whether the transcripts of evidence given at the earlier voir dires (and at committal) should be received as evidence on the retrial voir dires
- Whether Crown witnesses who had already given extensive oral evidence on the earlier voir dires should be recalled for further cross-examination
- Whether a witness located overseas, against whom no specific new areas of cross-examination had been identified, should be required to appear
Decision
Johnson J confirmed that he was not bound by Sully J's earlier rulings on the objections. He would conduct his own independent assessment, though he would have regard to those earlier decisions as part of his reasoning process.
On the central procedural question, the court declined to adopt either party's position in full. The court held that all transcripts of evidence given in the committal proceedings and at the first trial should be received on the voir dires, along with relevant documentary material. This provided a substantial evidentiary foundation without requiring witnesses to retrace entirely familiar ground.
The court also ordered that four witnesses, Mr O'Neill, Federal Agent Wills, Federal Agent Dametto, and Mr Morgan, be made available by the Crown for further cross-examination. However, Johnson J was firm that this cross-examination would not be open-ended or repetitive. The court would actively control the process, intervening where questioning merely rehearsed issues already fully canvassed, and assessing at all times whether the cross-examination was genuinely assisting the resolution of the voir dire issues.
Federal Agent Wildman was treated differently. He was located in Hong Kong, transcript of his prior evidence was available, and the accused had not identified any specific new areas for his cross-examination. The court declined to require the Crown to produce him, leaving it open to the accused to make a further application if additional grounds could be identified.
Orders Made
• Transcripts of witnesses from earlier voir dires, committal proceedings, and first trial to be received on the voir dires, together with relevant documentary material
• Mr O'Neill, Federal Agent Wills, Federal Agent Dametto, and Mr Morgan to be made available by the Crown for further cross-examination
• Cross-examination to be controlled and not open-ended; repetition of previously raised issues not permitted unless clearly justified
• Federal Agent Wildman not required to be produced for the voir dire, absent cogent reasons from the Accused
• Voir dire hearings to commence on 30 January 2007 with focused cross-examination
Key Takeaways
- A judge presiding over a retrial is not bound by a ruling on a voir dire made by the judge who presided over the first trial, but may still have regard to those earlier decisions.
- Transcripts of evidence given at committal proceedings and at a prior trial are receivable as evidence on voir dires at a retrial, providing a foundation that reduces the need to repeat oral evidence entirely.
- Where witnesses have already been extensively cross-examined on earlier voir dires, courts retain firm power to control further cross-examination, confining it to focused, non-repetitive questioning that genuinely assists the determination of the issues.
- An overseas witness may not be required to give evidence on a retrial voir dire where transcripts of that witness's prior evidence are available and the party seeking recall has not identified any specific new areas for cross-examination.
- Johnson J's approach reflected broader judicial concern, noted in R v Callaghan, about "bloated voir dires" in long criminal trials, emphasising that voir dire hearings should be purposeful and proportionate.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 138 (exclusion of improperly or illegally obtained evidence)
Cases
- 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)
- R v Taylor (NSW Court of Criminal Appeal, 18 April 1995, unreported)
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187