AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
17
Supreme Court 8 August 2006

R (Cth) v Petroulias (No. 1)

[2006] NSWSC 788

Also reported as 177 A Crim R 153
Fraud & dishonesty
CRIMINAL LAW APPLICABLE PRINCIPLES HELD: PERMANENT STAY REFUSED HELD: S.29D COUNT NOT BAD FOR DUPLICITY

Citation: R (Cth) v Petroulias (No. 1) [2006] NSWSC 788
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 8 August 2006
Judge(s): Johnson J

Background

The accused was a former officer of the Australian Taxation Office facing three counts on indictment under the Crimes Act 1914 (Cth). The principal charge (Count 1) alleged that between September 1997 and February 1999 he defrauded the Commonwealth by causing Private Binding Rulings and Advance Opinions to be issued to taxpayers by dishonest means, thereby putting Commonwealth revenue at risk. The remaining counts alleged receiving a benefit as a Commonwealth officer in a way that affected his duties (Count 2) and unlawfully publishing confidential documents to an unauthorised person (Count 3).

The matter had a lengthy procedural history. A first trial had proceeded before Sully J but concluded with the jury being discharged after it was unable to agree on a verdict. The Commonwealth Director of Public Prosecutions elected to proceed to a retrial.

Before the retrial commenced, the accused brought several pre-trial applications seeking either to have the proceedings halted entirely or to have the first count removed from the indictment. Johnson J heard those applications over multiple days in July 2006.

The court was asked to resolve the following questions:

  • Whether Count 1 (the s.29D fraud charge) was "foredoomed to fail" and should therefore be quashed, having regard to evidence led at the first trial and rulings made by Sully J during that trial
  • What role, if any, the findings and directions from the first trial could play in determining the pre-trial applications before the retrial
  • Whether all counts on the indictment should be permanently stayed on the ground of abuse of process, taking into account factors including alleged evidentiary insufficiency, witness credibility concerns, the Crown's evolving case theory, the length and complexity of proceedings, passage of time, and hardship to the accused
  • Whether Count 1 was void for duplicity (that is, whether a single count impermissibly charged more than one offence)

Decision

The "foredoomed to fail" ground. Johnson J examined the applicable principles carefully, noting that the test requires the court to be satisfied that no reasonable jury, properly directed, could convict on the count. The accused argued, by reference to rulings and directions given by Sully J at the first trial, that key elements of the s.29D offence (including deprivation, causation, and dishonest means) could not be established. Johnson J rejected that argument. He was not satisfied that the first count was foredoomed to fail on any of those elements, and he declined to treat the rulings from the first trial as binding determinations that foreclosed the Crown's case at the retrial.

The abuse of process ground. The accused pressed a broad range of factors cumulatively, including the alleged insufficiency of the Crown case, concerns about the credibility of a key Crown witness (Mr Morgan), the Crown's conduct in advancing evolving versions of the s.29D charge, the length and multiplicity of proceedings, an alleged loss of acquittal prospects due to misdirections at the first trial, the Crown's failure to call certain witnesses, the passage of time since 1997, and stress and hardship suffered by the accused. Johnson J assessed each factor individually and then cumulatively. He concluded that none of the factors, alone or in combination, demonstrated that continuation of the prosecution would constitute an abuse of process warranting a permanent stay.

The duplicity ground. The accused submitted that Count 1 was bad for duplicity because it encompassed multiple rulings issued on multiple occasions. Johnson J rejected this argument. He found that the charge was framed around a single criminal enterprise carried out over a continuous period, and that the question of duplicity is always one of fact and degree depending on the circumstances. The count was not impermissibly duplicitous.

General observation. Johnson J noted that the retrial would proceed by reference to the evidence actually adduced before the jury empanelled at the retrial, and that no assumption could be made that the evidence would replicate precisely what was given at the first trial. He confirmed that all ordinary trial processes would apply going forward.

Orders Made

  • The application to quash Count 1 on the indictment is refused.
  • The application for a permanent stay of all or any of the counts on the indictment is refused.

Key Takeaways

  • The "foredoomed to fail" test requires the court to be satisfied that no reasonable jury, properly directed, could convict; the threshold is a high one and is not met merely because a first trial resulted in a hung jury or because a trial judge made particular rulings during that trial.
  • Rulings and directions given by a judge at a first trial do not bind a different judge determining pre-trial applications before a retrial; they may be examined as part of the history of the proceedings but do not constitute res judicata or otherwise foreclose the Crown's case.
  • A permanent stay on abuse of process grounds requires a demonstrated basis that continuation of the proceedings would be oppressive or vexatious in a legally significant sense; a lengthy procedural history, hardship to the accused, and a changing Crown case theory are relevant factors but, taken cumulatively here, fell short of that threshold.
  • A count is not bad for duplicity where it is properly characterised as charging a single criminal enterprise carried out over a continuous period, even if that enterprise involved multiple acts; the determination is always one of fact and degree.
  • Where a retrial is ordered following a hung jury, the Crown is entitled to proceed on the same indictment, and the retrial court will assess all applications by reference to the evidence actually led at the retrial rather than treating the first trial record as determinative.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 29D, 70, 73
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Jury Act 1977 (NSW)
- Evidence Act 1995 (NSW)
- Service and Execution of Process Act 1992 (Cth)

Key cases cited:
- Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
- Walton v Gardiner (1993) 177 CLR 378
- Williams v Spautz (1992) 174 CLR 509
- Jago v District Court (NSW) (1989) 168 CLR 23
- The Queen v Carroll (2002) 213 CLR 635
- Doney v The Queen (1990) 171 CLR 207
- Rogers v The Queen (1994) 181 CLR 251
- Director of Public Prosecutions v Merriman (1973) AC 584
- Walsh v Tattersall (1996) 188 CLR 77
- R v Petroulias (2005) 62 NSWLR 663
- Wills v Petroulias (2003) 58 NSWLR 598
- R v Ronen (2004) 62 NSWLR 707
- R v GK (2001) 53 NSWLR 317
- Peters v The Queen (1998) 192 CLR 493
- Spies v The Queen (2000) 201 CLR 603
- Pinkstone v The Queen (2004) 219 CLR 444
- Black v The Queen (1993) 179 CLR 44
- Barton v The Queen (1980) 147 CLR 75