Citation: R (Cth) v Petroulias (No. 34) [2007] NSWSC 1462
Court: Supreme Court of New South Wales
Date: 13 December 2007
Judge(s): Johnson J
Background
The accused faced a complex Commonwealth criminal trial involving charges including a count of defrauding the Commonwealth under s 29D of the Crimes Act 1914 (Cth). The trial involved a large volume of documentary exhibits and lengthy closing addresses from both parties. It was the second trial of the accused on the relevant charges, following an earlier trial before Sully J in 2005.
After closing addresses concluded on 20 November 2007, Johnson J heard submissions from both parties on the content of written directions and a chronology to be provided to the jury as part of the summing up. The judge had prepared draft written directions and a draft chronology, drawing on input from both the Crown and the accused, and provided these to counsel for comment before delivering his reasons.
The present judgment (No. 34 in the series) records the reasons for the rulings Johnson J announced on 23 November 2007, after which the jury folder was provided to jurors at the commencement of the summing up on 26 November 2007.
Legal Issues
- Whether the jury directions on the element of causation in the first count should incorporate the doctrine of innocent agency
- Whether a Jones v Dunkel direction (concerning an inference open where a party fails to call an expected witness) was appropriate in the circumstances
- Whether certain directions concerning corroboration and other matters required adjustment
- Whether a chronology should be provided to the jury, and if so, what entries it should contain, including whether quotations from documentary exhibits could properly be included
Decision
Causation and innocent agency: Johnson J rejected the accused's submission that the directions on causation should be framed by reference to the doctrine of innocent agency. This was consistent with his Honour's pre-trial ruling (No. 1), which had been upheld by both the Court of Criminal Appeal and the High Court. The first count alleged that the accused caused favourable rulings to be issued by other officers, not that he personally issued them. Johnson J had previously found the doctrine of innocent agency inapplicable to that structure of allegation, and maintained that position at the summing-up stage.
Other contested directions: The judgment addresses several further disputes about the content of the written directions, including matters relating to Jones v Dunkel inferences and other aspects of the legal directions. Johnson J resolved these in accordance with his reasons, adopting the form of directions set out in MFI138 as provided to the parties on 23 November 2007.
Chronology: Johnson J decided to provide a chronology to the jury, concluding it would assist deliberations in a trial of considerable complexity with a large number of documentary exhibits. In settling the chronology's content, Johnson J used as a starting point whether each event and its associated evidence had been addressed in closing addresses. Entries not addressed in closing addresses were generally excluded on the basis that the jury would not be assisted by reference to them.
Quotations within the chronology: Johnson J permitted quotations and partial quotations from documents to be included in the chronology, on the basis that they would help the jury recall particular exhibits. Oral directions were given making clear that the chronology was not a substitute for the exhibits themselves. Johnson J was satisfied the chronology would not operate unfairly to the accused, consistent with the trial judge's responsibility identified in R v Collins.
Orders Made
- Written directions and chronology to be provided to the jury in the form contained in MFI142.
Key Takeaways
- The doctrine of innocent agency was held inapplicable where the indictment alleged that the accused caused favourable rulings to be issued by others, rather than alleging the accused personally performed the relevant act.
- Consistency across interlocutory rulings in a complex criminal trial carries weight: Johnson J's refusal to depart from his pre-trial causation ruling reflected the fact that the same question had already survived challenge in the Court of Criminal Appeal and the High Court.
- In complex trials with large documentary records, a trial judge has a discretion to provide the jury with a chronology as part of the summing up, and a chronology may appropriately include quotations or partial quotations from exhibits provided the jury receives clear directions that the chronology does not substitute for the exhibits themselves.
- The trial judge bears responsibility for ensuring any chronology does not give rise to unfairness to the accused, as recognised in R v Collins (1986) 44 SASR 214.
- When settling a chronology's content, whether a particular event was addressed in counsels' closing addresses is a relevant and practical criterion for inclusion.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), s 29D
- Evidence Act 1995
Cases
- R (Cth) v Petroulias (No. 1) [2006] NSWSC 788
- R (Cth) v Petroulias (No. 7) [2007] NSWSC 16
- R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005
- R (Cth) v Petroulias (No. 30) [2007] NSWSC 1119
- Petroulias v R [2006] NSWCCA 415
- Petroulias v The Queen [2007] HCATrans 92
- Royall v The Queen (1991) 172 CLR 378
- Pinkstone v The Queen (2004) 219 CLR 444
- R v Franklin (2001) 3 VR 9
- R v Moussad (1999) 152 FLR 373
- Jones v Dunkel (1959) 101 CLR 298
- Dyers v The Queen (2002) 210 CLR 285
- Quinlan v The Queen (2006) 164 A Crim R 106
- R v Mitchell [1971] VR 46
- Smith v The Queen (1970) 121 CLR 572
- R v Collins (1986) 44 SASR 214
- R v Kardoulias [2005] NSWCCA 150