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Court of Criminal Appeal 26 June 2014

Petroulias v R

[2014] NSWCCA 108

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST CONVICTION LENGTHY TRIAL COMPLAINT NOT MADE AT TRIAL NO SUBSTANCE IN COMPLAINT

Citation: Petroulias v R [2014] NSWCCA 108
Court: NSW Court of Criminal Appeal
Date: 26 June 2014
Judges: Leeming JA; Price J; Bellew J

Background

The applicant, a former senior officer of the Australian Taxation Office and later a partner of a law firm, was charged on indictment with three federal offences. After two earlier trials that each ended without verdicts, a third trial concluded in December 2007 when a jury of eleven found him guilty on two counts: agreeing to receive a benefit on an understanding that his duties as a Commonwealth officer would be affected (s 73(2), Crimes Act 1914 (Cth)), and publishing confidential documents to an unauthorised person (s 70(1), Crimes Act 1914 (Cth)). The jury could not reach a verdict on a third count alleging fraud on the Commonwealth, and the Crown elected not to proceed further on that count.

The applicant was sentenced on 20 June 2008 to cumulative terms of imprisonment totalling approximately three years and five months, with a non-parole period of two years. Despite filing a notice of intention to appeal in August 2008, formal appeal proceedings did not commence in the Court of Criminal Appeal until January 2010. By the time the appeal was finally heard, the applicant had served his sentences in full.

Notwithstanding that the sentences had long expired, the applicant sought leave to appeal against both his convictions and his sentences. He argued, among other things, that the Crown case and the trial judge's summing-up on counts 2 and 3 lacked sufficient clarity to support the verdicts.

  • Whether leave to appeal against sentence should be granted where the sentence had been wholly served before the appeal was heard, and where there was no realistic prospect of the applicant being dealt with without a conviction under s 19B of the Crimes Act 1914 (Cth).
  • Whether leave should be granted to challenge the trial judge's summing-up on counts 2 and 3 on grounds that were not raised at trial.
  • Whether the Crown case and jury directions on counts 2 and 3 were sufficiently clear to support the guilty verdicts.

Decision

Sentence appeal: The Court refused leave to appeal against sentence on the straightforward basis that the sentences had been served in full before the appeal was heard. Even if appellable error were identified and a lesser sentence found to be warranted, no practical consequence could follow. The only avenue that might have given the appeal utility was s 19B of the Crimes Act 1914 (Cth), which permits a court to deal with a person without recording a conviction. The Court found there was no prospect of that provision being satisfied given the serious nature of the offences and the facts as found. The applicant's own counsel made no oral submissions on sentence, reflecting the force of the Crown's position.

Conviction appeal: failure to object at trial: The applicant's complaints about the clarity of the Crown case and the adequacy of the trial judge's directions on counts 2 and 3 had not been raised at trial. Rule 4 of the Criminal Appeal Rules requires leave before such complaints can be ventilated on appeal. The Court found no substance in the complaints. Senior counsel at trial had agreed to the written formulation of the jury directions and did not seek further oral directions, a circumstance the Court treated as a significant indicator that no inadequacy existed at the time.

Conviction appeal: merits of the grounds: On count 2, the Court found that the Crown case and directions were clear, and that the applicant's assertions of confusion were not borne out on a reading of the summing-up. On count 3, the Court rejected the contention that there was no evidence the information on the relevant lists constituted genuine taxpayer information, noting that evidence supporting the Crown's case existed even if some evidence pointed in different directions. The Court also rejected the argument that confidentiality was an element of the count 3 offence. No miscarriage of justice was established, and the Court was not satisfied that any error had been demonstrated.

Orders Made

  • Leave refused under r 4 of the Criminal Appeal Rules to raise grounds challenging the summing-up to the jury, where no objection had been taken at trial.
  • Leave to appeal against conviction refused.
  • Leave to appeal against the sentences imposed on 20 June 2008 refused.

Key Takeaways

  • Where a sentence has been wholly served before an appeal is heard, the Court of Criminal Appeal will generally refuse leave on the basis that no practical consequence could flow from any exercise of appellate jurisdiction.
  • Under s 19B of the Crimes Act 1914 (Cth), a court may deal with an offender without recording a conviction; however, the provision must have a realistic prospect of being satisfied before it can supply a basis for utility in a sentence appeal after the sentence has expired.
  • A failure to object to jury directions at trial is a significant obstacle to raising those complaints on appeal; r 4 of the Criminal Appeal Rules requires leave, and the fact that experienced trial counsel agreed to the directions is treated as relevant to whether any inadequacy existed.
  • No error was established in the Crown case or the trial judge's summing-up on counts 2 and 3, with the Court noting that the existence of some conflicting evidence does not mean the Crown lacked evidentiary support for its case.
  • Confidentiality is not an element of the offence of publishing documents under s 70(1) of the Crimes Act 1914 (Cth), though it may be relevant to the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 19B, 70(1), 73(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b) and (c)
- Criminal Appeal Rules, r 4

Cases:
- AP v R [2013] NSWCCA 189
- Buckley v R; R v Buckley [2012] NSWCCA 85
- Petroulias v R [2006] NSWCCA 415
- Petroulias v R [2007] NSWCCA 134
- Petroulias v R [2010] NSWCCA 95
- Petroulias v The Hon Justice McClellan [2013] NSWCA 434; (2013) 306 ALR 210
- Picken v R [2007] NSWCCA 319
- R v Germakian [2007] NSWCCA 373; 70 NSWLR 467
- R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
- R v Petroulias (No 1) [2006] NSWSC 788
- R v Petroulias [2005] NSWCCA 75; 62 NSWLR 663
- R v Preston [2005] NSWCCA 177
- R v Wilson and Grimwade [1995] 1 VR 163
- Wills v Petroulias [2003] NSWCA 390