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Supreme Court 16 March 2007

R (Cth) v Petroulias (No. 13)

[2007] NSWSC 535

Public order & justice offences
CRIMINAL LAW ADJOURNMENT REFUSED

Citation: R (Cth) v Petroulias (No. 13) [2007] NSWSC 535
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 16 March 2007
Judge(s): Johnson J

Background

The accused faced a Commonwealth criminal trial fixed to commence on 19 March 2007. This was one of a long series of interlocutory decisions in the same proceedings, with the case having been subject to numerous pre-trial applications stretching back to mid-2006.

The accused sought a further adjournment of the trial on the basis that funds needed to pay his private legal representatives had not yet been recovered. He claimed that a sum of $785,000 had been mistakenly transferred into the trust account of a Brisbane firm, Home Wilkinson Lowry, and that litigation was on foot in the Supreme Court of Queensland to recover those funds.

A previous adjournment had already been granted on 2 March 2007, pushing the trial from 5 March to 19 March 2007, specifically to allow the accused to pursue urgent steps in the Queensland proceedings. The present application sought a further extension beyond 19 March 2007.

  • Whether the court should exercise its discretion under s 40 of the Criminal Procedure Act 1986 to grant a further adjournment of a criminal trial to allow an accused to secure private funding for legal representation.
  • Whether the circumstances had changed materially since the previous adjournment was granted on 2 March 2007, so as to justify another adjournment on the same grounds.
  • What conditions, if any, should be imposed given the accused would now need to consider alternative arrangements for representation.

Decision

Johnson J refused the application for an adjournment sufficient to allow further pursuit of the Queensland proceedings. The court noted that the accused's application was not brought on the Dietrich principle, that is, it was not a case where the accused claimed to be indigent and unable to obtain representation through no fault of his own. Rather, the accused sought time to ensure privately held funds would become available.

The court reviewed the chronology in detail and found that the problems surrounding funding had been apparent since at least August 2006, well before the trial date was fixed. The Queensland litigation involving the disputed $785,000 remained unresolved, with significant factual disputes and the prospect of competing claims from a provisional liquidator. The Crown had consistently opposed further delay, noting that recovery of the funds was highly uncertain and that the proceedings had already caused substantial disruption.

The court was satisfied that no sufficient basis existed for a further open-ended adjournment to pursue the Queensland recovery claim. The trial had already been delayed for two weeks on this ground, and the position had not meaningfully improved. The court noted that more than 200 people had been affected by the conduct underlying the charges, and that the proceedings required certainty and finality.

Rather than simply leaving the accused unrepresented, Johnson J granted a limited one-week adjournment to 26 March 2007. The purpose of that short extension was to give the accused an opportunity to apply promptly for legal aid and to undertake preparation for trial.

Orders Made

  • The application by the accused for a further adjournment of the trial was refused.
  • The trial date of 19 March 2007 was vacated.
  • The trial was fixed to commence on 26 March 2007.
  • The matter was listed before Johnson J at 9:30 am on Thursday 22 March 2007.
  • If a legal aid application was to be made, the court directed it be made promptly, with an update expected by 22 March 2007 and a solicitor from the Legal Aid Commission's indictable section invited to attend if the application remained unresolved.
  • The accused's bail was continued until 9:30 am on 22 March 2007.

Key Takeaways

  • Refusing a further adjournment, the Supreme Court distinguished between a Dietrich-style application (indigency through no fault of the accused) and an application grounded in an accused's difficulty in accessing privately held funds: the two attract different considerations.
  • Where funding difficulties have been apparent for many months and a previous adjournment on the same ground has already been granted without resolution, the court may decline to grant a further open-ended delay.
  • The discretion under s 40 of the Criminal Procedure Act 1986 to adjourn a criminal trial is broad, but proximity to the trial date and prejudice to the administration of justice are weighty countervailing factors.
  • A limited adjournment may still be appropriate to preserve the accused's ability to seek legal aid, even where the primary application fails.
  • Uncertainty about recovery of funds in third-party litigation, especially where competing claims exist, will weigh against adjournment when weighed against the interests of witnesses, victims, and the efficient administration of criminal justice.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 40
- Trust Accounts Act 1973 (Qld)

Cases
- Dietrich v The Queen (1992) 177 CLR 292
- R v Petroulias (No. 1) [2006] NSWSC 788
- R v Petroulias (No. 3) (Johnson J, unreported, 6 October 2006)
- R v Petroulias (No. 4) (Johnson J, unreported, 19 October 2006)
- R v Petroulias (No. 5) [2006] NSWSC 1155
- R v Petroulias (No. 6) [2006] NSWSC 1422
- R v Petroulias (No. 7) [2007] NSWSC 16
- R v Petroulias (No. 8) [2007] NSWSC 82
- R v Petroulias (No. 9) [2007] NSWSC 84
- R v Petroulias (No. 11) [2007] NSWSC 533
- R v Petroulias (No. 12) [2007] NSWSC 534
- Petroulias v R [2006] NSWCCA 415