Citation: R (Cth) v Petroulias (No. 19) [2007] NSWSC 536
Court: Supreme Court of New South Wales
Date: 23 May 2007
Judge(s): Johnson J
Background
The accused faced three charges under the Crimes Act 1914 (Cth), including defrauding the Commonwealth and related offences involving his conduct as a Commonwealth officer. The trial that commenced on 26 March 2007 was itself a retrial, the first having ended in a hung jury in 2005.
The 2007 trial was aborted after a juror was discovered to have been disqualified from driving since 2002. Johnson J discharged that juror and directed the remaining eleven jurors to continue, but the Court of Criminal Appeal allowed the accused's appeal and ordered the whole jury be discharged on 16 May 2007.
Following the discharge, Johnson J indicated the intention to empanel a fresh jury and commence a new trial promptly. The accused responded by filing a Notice of Motion on 18 May 2007 seeking stays and an adjournment on three separate grounds.
Legal Issues
- Whether the trial should be stayed conditionally upon the Crown paying the accused's costs of the aborted trial, applying principles from R v Fisher (2003) 56 NSWLR 625
- Whether Crown fault or wrongdoing is a prerequisite for such a conditional costs-stay, or whether general unfairness to the accused is sufficient
- Whether a temporary stay of two months was warranted due to adverse media publicity broadcast on ABC Radio's "PM" programme on the evening of 16 May 2007
- Whether the trial should be adjourned for two months to allow the accused to arrange private litigation funding
Decision
Conditional stay for costs. Johnson J rejected the argument that mere unfairness to the accused, without more, justifies a conditional stay requiring the Crown to pay the costs of an aborted trial. While the accused submitted that Crown fault was not required, the court found that the applicable principle demands an identifiable injustice for which the prosecuting authorities can sensibly be held responsible. The trial had been aborted due to a failure in the machinery of the State regarding jury selection, a circumstance not attributable to any fault on the part of the Crown. That threshold was not met, and the conditional stay was refused.
Media publicity stay. The accused pointed to a broadcast on ABC Radio's "PM" programme on the evening the jury was discharged. Johnson J was not satisfied that the publicity was of a kind or scale that would make a fair trial impossible or that a two-month delay was necessary to address any prejudice. The application for a temporary stay on that basis was refused.
Adjournment for funding. The accused sought two months to secure litigation funding, pointing to an arrangement with an entity called Pleroma that had become unavailable due to related Queensland litigation. Johnson J accepted that the trial's abrupt end had disrupted funding arrangements, but found on the evidence that the accused had not demonstrated, on the balance of probabilities, a present inability to fund his defence. The evidence showed the accused and his partner had previously sourced $600,000 independently of Pleroma in March 2007, and no evidence established that comparable steps could not be taken again.
Outcome. While declining to grant the relief sought in the Notice of Motion, Johnson J did grant a short adjournment to 6 June 2007, recognising that three weeks between the aborted trial and the fresh trial was reasonable in the circumstances and also served to create some distance from the media publicity, even though that ground alone did not warrant a stay.
Orders Made
- All orders sought by the accused in the Notice of Motion dated 18 May 2007 were declined
- Trial fixed to commence at 10:00 am on Wednesday, 6 June 2007
- Accused's bail continued until that time and date
Key Takeaways
- A conditional stay requiring the Crown to pay costs of an aborted trial is not available simply because the accused suffered unfairness. The accused must establish an identifiable injustice for which the prosecuting authorities can sensibly be held responsible.
- Where a trial collapses due to a failure in the general machinery of the State (such as a defect in the jury pool), that failure does not, without more, constitute fault or responsibility on the part of the prosecuting authority sufficient to ground a conditional costs-stay.
- Media publicity broadcast at the time a jury is discharged does not automatically warrant a lengthy stay of proceedings. The court will assess whether the nature and extent of the publicity makes a fair retrial impossible or unlikely.
- An accused seeking an adjournment on funding grounds bears the burden of establishing, on the balance of probabilities, a present inability to fund their defence. Evidence of a disrupted funding arrangement is insufficient if other funding sources remain available or have not been shown to be exhausted.
- Even where all three formal stay applications are refused, the court retains a discretion to grant a short adjournment in the interests of justice, balancing the accused's legitimate preparation needs against the public interest in the timely disposition of serious criminal charges.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth)
- Jury Act 1977 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Suitors' Fund Act 1951 (NSW)
- Taxation Administration Act 1953 (Cth)
- Evidence Act 1995 (NSW)
Cases:
- R v Fisher (2003) 56 NSWLR 625
- Petroulias v R [2007] NSWCCA 134
- Jago v District Court (NSW) (1989) 168 CLR 23
- Latoudis v Casey (1990) 170 CLR 534
- The Queen v Glennon (1992) 173 CLR 592
- Dietrich v The Queen (1992) 177 CLR 292
- Solomons v District Court of NSW (2002) 211 CLR 119
- John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344
- Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523
- R v Mosely (1992) 28 NSWLR 735
- R v Yuill (1993) 69 A Crim R 450
- Segal v Waverley Council (2005) 64 NSWLR 177
- Commissioner of Stamp Duties (NSW) v Owens [No. 2] (1953) 88 CLR 168
- Prior decisions in the Petroulias series: Nos. 1, 11, 12, 13, 17