Citation: R (Cth) v Petroulias (No. 10) [2007] NSWSC 532
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 1 March 2007
Judge(s): Johnson J
Background
The accused faced multiple counts under the Crimes Act 1914 (Cth), including defrauding the Commonwealth, agreeing to receive a benefit as a Commonwealth officer, and unlawfully disclosing documents obtained in his capacity as a Commonwealth officer. The trial was scheduled to begin before a jury on 5 March 2007, and Johnson J had already delivered a series of pre-trial rulings following hearings that commenced in July 2006.
On the evening of 28 February 2007, one day before the matter was listed for final pre-trial mention, senior counsel for the accused notified the court by email of a desire to raise a further pre-trial argument. The argument was prompted by a decision of the Full Court of the Federal Court, handed down on 22 February 2007, in Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Limited [2007] FCAFC 16.
At the mention hearing on 1 March 2007, the accused applied for a temporary stay of the trial to allow time to prepare and argue a pre-trial application to exclude evidence concerning fringe benefit tax matters, including what the court called "the Lowman Chow paper." The accused contended that the Indooroopilly decision demonstrated that this evidence was irrelevant and should be excluded before the Crown was permitted to open its case.
Legal Issues
- Whether the Full Federal Court's decision in Indooroopilly provided a new and sufficient basis for a further pre-trial hearing on the admissibility of evidence concerning fringe benefit tax matters.
- Whether the trial should be temporarily stayed to allow the accused to make representations to the Commonwealth Director of Public Prosecutions in light of that decision.
- Whether the disputed evidence (including the Lowman Chow paper) was relevantly affected by Indooroopilly such that its admissibility ought to be determined before trial.
Decision
Johnson J refused the application. His Honour observed that the line of Federal Court authority on which the accused relied, including decisions in Essenbourne, Walstern, Spotlight Stores, Pridecraft, and Indooroopilly at first instance, had already been raised and considered at multiple prior stages of the proceedings, including before the Court of Appeal, the Court of Criminal Appeal, Sully J, and Johnson J himself.
The Court found that the Full Federal Court's decision in Indooroopilly did not, as a matter of law, create a new or clear basis for a pre-trial application to exclude evidence. The decision affirmed an existing line of authority rather than establishing anything materially new. Critically, no prior application had ever been made before Johnson J to exclude the Lowman Chow paper or associated evidence on the ground of irrelevance, despite the earlier Federal Court decisions having been available for some time.
Johnson J also declined to stay the trial to allow representations to be made to the Director of Public Prosecutions. The accused's legal representatives had one week since the Indooroopilly decision was handed down to make any such representations and had not done so. That omission provided no foundation for delaying the trial.
The court determined that the appropriate forum for considering any issues arising from Indooroopilly was the trial itself, consistent with what the Court of Criminal Appeal had envisaged in 2005. Questions of admissibility and the directions to be given to the jury on these issues were to be addressed if and when they arose during the trial.
Orders Made
- The application by the accused for a pre-trial hearing on the objection to evidence, based on the Indooroopilly decision, was refused.
Key Takeaways
- Johnson J confirmed that a recent appellate decision does not automatically warrant a new pre-trial hearing if the underlying legal arguments were available to a party at an earlier stage and were not then pressed.
- The Full Federal Court's decision in Indooroopilly was characterised as affirming an existing line of authority, rather than creating a novel legal basis capable of supporting a fresh admissibility application.
- A failure to make representations to a prosecuting authority in the week following the relevant appellate decision provided no justification for adjourning a long-scheduled trial.
- The court indicated that questions of relevance and admissibility concerning the fringe benefit tax evidence, and appropriate jury directions, remained matters to be resolved during the trial itself.
- Refusing the stay, the Supreme Court emphasised that the Court of Criminal Appeal had already anticipated in 2005 that these issues would be resolved in the context of the trial, not through further pre-trial applications.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 29D, 70, 73
Cases:
- Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Limited [2007] FCAFC 16
- Indooroopilly Children's Services (Qld) Pty Limited v Commissioner of Taxation [2006] FCA 734
- R v Petroulias (No. 1) [2006] NSWSC 788
- Wills v Petroulias (No. 2) (2003) 58 NSWLR 618
- R v Petroulias (2005) 62 NSWLR 663
- Essenbourne Pty Ltd v Commissioner of Taxation (2002) 51 ATR 629
- Walstern Pty Ltd v Commissioner of Taxation (2003) 138 FCR 1
- Spotlight Stores Pty Ltd v Commissioner of Taxation (2004) 55 ATR 745
- Pridecraft Pty Ltd v Commissioner of Taxation (2004) 213 ALR 450