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Court of Criminal Appeal 2 June 2008

BOULOS v R

[2008] NSWCCA 119

Fraud & dishonesty
CRIMINAL LAW CRIMINAL APPEAL ACT S5F(3)

Citation: Boulos v R [2008] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 2 June 2008
Judge(s): James J (principal judgment); Hoeben J and Hall J (agreeing)

Background

The appellant faced 10 counts of defrauding the Commonwealth under s 29D of the Commonwealth Crimes Act. The alleged conduct related to fraudulent sales tax refund applications lodged with the Australian Taxation Office between January 1993 and February 1994, totalling approximately $1.14 million. The Crown alleged the appellant was knowingly involved in a scheme in which false invoices and purchase orders were used to obtain refund cheques, which were then deposited into accounts controlled by him.

The case had a protracted history. Investigation began in 1994, but the appellant was not arrested and charged until December 2004, when he returned to Australia. Committal proceedings ran from August 2005 to August 2007, after which an amended indictment was served.

In March 2008, the appellant applied in the District Court to permanently stay the proceedings on the basis that delay had caused him irremediable prejudice. Judge Murrell refused the application, and the appellant appealed that refusal to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act.

  • Whether the primary judge erred in refusing to grant a permanent stay of criminal proceedings
  • Whether the delay between the alleged offending (1993 to 1994) and the scheduled trial (2008) caused the appellant sufficient, irremediable prejudice to justify a stay
  • Whether the loss and destruction of documents over that period rendered a fair trial impossible
  • Whether the Crown's circumstantial case could properly be considered in the context of a stay application

Decision

James J (with whom Hoeben J and Hall J agreed) dismissed the appeal. The Court applied the well-established principles governing permanent stays: such a remedy is exceptional, and a stay will only be granted where a fair trial is no longer possible or where it is otherwise necessary to prevent an abuse of process. The onus rested on the appellant to demonstrate that the delay had caused actual, identifiable prejudice, not merely the generalised disadvantage that comes with the passage of time.

The Court examined the lost and unavailable evidence in detail. Many of the documents that could no longer be located had not been destroyed in reliance on the expiry of the five-year retention period under the Sales Tax Assessment Act 1992. Instead, key records disappeared as early as 1994 (when a co-participant removed the relevant computer) and possibly 1995 (when an alleged fire destroyed further records). The causal link between the investigative delay and the evidentiary prejudice was therefore not as direct as the appellant contended.

James J also noted that a critical prosecution witness, Mr Andrews, had left Australia in 2001 and was not available to give evidence. However, the Court accepted that Andrews' absence had been the subject of careful analysis by the primary judge, who had weighed the significance of his unavailability against the remaining Crown evidence and the directions a trial judge could give to address prejudice.

The Court observed that the Crown's circumstantial case, so far from appearing weak, appeared quite strong. The Court reiterated that a permanent stay is a remedy of last resort, and that courts should, unless the interests of justice demand otherwise, exercise their jurisdiction to try persons charged with criminal offences rather than grant immunity from prosecution.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A permanent stay of criminal proceedings remains an exceptional remedy, available only where a fair trial is no longer possible or where continuing the proceedings would constitute an abuse of process.
  • The Court of Criminal Appeal confirmed that an appellant seeking a stay must establish actual, identifiable prejudice from delay, not merely the generalised disadvantage that accompanies the passage of time.
  • Where documents became unavailable through events unconnected to investigative delay (such as a fire or deliberate removal by a co-participant), the causal nexus between delay and prejudice is weakened significantly.
  • In dismissing the appeal, the Court reaffirmed the principle from Williams v Spautz (1991-1992) 174 CLR 509: courts should exercise, rather than refrain from exercising, their jurisdiction to try criminal charges unless the interests of justice demand otherwise.
  • Residual prejudice from delay can be addressed by a trial judge through directions and appropriate management of the trial, and this possibility is a relevant consideration when assessing whether a stay is warranted.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act (NSW), s 5F(3)
- Commonwealth Crimes Act, s 29D (since repealed)
- Crimes Act (NSW), s 5 (since repealed)
- Sales Tax Assessment Act 1992 (Cth), s 127(1)
- Justices Act (NSW)

Cases
- Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541
- House v The King (1936) 55 CLR 499
- Jago v District Court of NSW (1989) 168 CLR 23
- Williams v Spautz (1991-1992) 174 CLR 509
- The Queen v Davis (1995) 57 FCR 512
- R v Alexandroaia (1995) 81 A Crim R 286
- R v BWM (1997) 91 A Crim R 260
- R v Stringer (2000) 116 A Crim R 198
- R v Tolmie (unreported, 7 December 1994, NSWCCA)