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Supreme Court 15 February 2007

R (Cth) v Petroulias (No. 8)

[2007] NSWSC 82

Public order & justice offences
CRIMINAL LAW HELD THAT IMPROPRIETY NOT ESTABLISHED APPLICATION REFUSED

Citation: R (Cth) v Petroulias (No. 8) [2007] NSWSC 82
Court: Supreme Court of New South Wales
Date: 15 February 2007
Judge(s): Johnson J

Background

The accused faced serious criminal charges involving alleged misconduct while holding a very senior rank within the Australian Taxation Office (ATO). The prosecution sought to tender two categories of evidence: six telephone conversations recorded pursuant to a telephone intercept warrant issued in July 1999, and documents and other materials seized during the execution of search warrants in March 2000. Of particular significance to the prosecution was material recovered from a Melbourne storage facility leased by the accused under a false name.

The accused mounted an application to exclude both categories of evidence under s.138 of the Evidence Act 1995. The central argument was that a senior ATO officer had deliberately and intentionally provided false and misleading information to the police officers who applied for the warrants, meaning the evidence was improperly obtained and should not be admitted.

The application was heard by way of voir dire (a hearing conducted in the absence of the jury to determine admissibility). The court received transcript evidence from a prior voir dire conducted before Sully J in 2005, as well as fresh evidence, including further cross-examination of the ATO officer in question, Mr Michael O'Neill.

  • Whether information included in the telephone intercept warrant and search warrant applications was false or misleading.
  • Whether any inaccurate information was provided deliberately, intentionally, or recklessly by the senior ATO officer.
  • Whether the inclusion of inaccurate information, even if inadvertent, constituted "impropriety" within the meaning of s.138 of the Evidence Act 1995.
  • If impropriety were established, whether the desirability of admitting the evidence would nonetheless outweigh the undesirability of admitting improperly obtained evidence, having regard to the factors in s.138(3).

Decision

Johnson J accepted that some information contained in the warrant applications was inaccurate. However, having assessed the oral and documentary evidence, his Honour found that the inclusion of that inaccurate information was not deliberate, intentional, or reckless. The court accepted the evidence of Mr O'Neill as credible, noting that Sully J had made a favourable credibility finding about the same witness after observing him give evidence over three days in 2005, and that this finding accorded with the objective probabilities.

Because the inaccuracies were inadvertent rather than deliberate, Johnson J held that impropriety within the meaning of s.138 had not been established. The application accordingly failed at that threshold, and the evidence was not excludable on that basis.

Johnson J went further and considered the s.138(3) balancing exercise in the alternative, that is, on the assumption that impropriety had been established. The evidence obtained from the search warrants was found to have high probative value and considerable importance to the proceedings. The offences charged were serious, and significant public interests were engaged in prosecuting alleged misconduct by a senior ATO officer. Even if some impropriety had been made out, it would at its highest have been inadvertent conduct arising in a complex and protracted investigation, and therefore not grave in character.

Applying the same analysis to the telephone intercept evidence, Johnson J reached the same conclusion, while acknowledging that the intercept evidence was of somewhat lesser probative importance than the search warrant material. In either case, the court was satisfied that the desirability of admitting the evidence would have outweighed the undesirability of doing so.

Orders Made

  • The accused's application under s.138 of the Evidence Act 1995 to exclude evidence obtained pursuant to the telephone intercept warrant and search warrants was refused.

Key Takeaways

  • Under s.138 of the Evidence Act 1995, evidence will only be excluded as improperly obtained if the threshold of impropriety is first established; inadvertent inclusion of inaccurate information in warrant applications does not necessarily satisfy that threshold.
  • The Supreme Court confirmed that deliberately or recklessly providing false information to support a warrant application would constitute impropriety, but conduct falling short of that standard may not reach the necessary level.
  • Where a prior judge has assessed the credibility of a key witness at an earlier trial or hearing, a subsequent court conducting the same inquiry independently may take that prior finding into account, while still making its own independent assessment.
  • Even where impropriety is not established, the court engaged in the s.138(3) balancing exercise in the alternative, identifying factors such as the seriousness of the offences, the public interest in prosecution, the probative value of the evidence, and the inadvertent (rather than deliberate) nature of any impropriety as pointing toward admission.
  • Serious public interest considerations, including the prosecution of significant alleged misconduct by a senior government officer, weighed in favour of admitting evidence under the s.138(3) discretion.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s.138
- Telecommunications (Interception) Act 1979 (Cth)
- Crimes Act 1914 (Cth)

Cases:
- R v Petroulias (No. 1) [2006] NSWSC 788
- 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. 9) [2007] NSWSC 84
- R v Petroulias (2005) 62 NSWLR 663
- Robinson v Woolworths Limited (2005) 64 NSWLR 612
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Ridgeway v The Queen (1995) 184 CLR 19
- R v Cornwell (2003) 57 NSWLR 82
- Director of Public Prosecutions v AM (2006) 161 A Crim R 219
- R v Dalley (2002) 132 A Crim R 169
- Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149
- Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170
- Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
- Palmer v Dorman [2005] NSWCA 361
- B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440
- Goodrich Aerospace Pty Limited v Arsic [2006] NSWSC 187
- R v Turner (No. 14) [2001] TasSC 124