Petroulias v R [2007] NSWCCA 154 | Case summary

Friday 1 June 2007 Nikytas Nicholas PETROULIAS v REGINA (Cth) Judgment 1 IPP JA: The applicant seeks leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) against a decision of Johnson J. By that decision, his Honour dismissed the applicant's notice of motion for an order staying proceedings against him until the Commonwealth Director of Public Prosecutions paid the reasonable costs that he had incurred in relation to a trial that commenced on 26 March 2006 which aborted when, by order of the majority of this Court on 16 May 2007, the jury was required to be discharged on the ground that one of the jurors was disqualified. I shall refer to this trial as the second trial. 2 The applicant's notice of appeal casts no light on the grounds on which he seeks appellate relief. It merely asserts error on behalf of the trial judge and does not explain what that error is. 3 In written submissions filed on the applicant's behalf, it was stated that Johnson J wrongly held that the applicant needed to establish fault on the part of the prosecution before an order as sought could be granted. Alternatively, according to the written submissions, if fault is a necessary requirement, it had been established. 4 In oral submissions, Mr Sutherland SC, who, together with Mr Walsh, appeared for the applicant, said that the only ground of appeal was that unfairness had been caused to the accused in the circumstances of the discharge of the jury on the second trial; accordingly, the costs and expenses of the second trial ought to be paid by the Crown before it is allowed to commence the third trial. 5 Mr Sutherland submitted that the relevant unfairness was the fact that the applicant had wasted the costs of the second trial, and this had to be seen against the background circumstances. The background circumstances are these. 6 The applicant was charged with offences alleged to have occurred in 1997 and 1998 whilst he was employed with the Australian Taxation Office. The committal proceedings lasted some 36 days. After he was committed for trial, he challenged the decision so committing him. Although the applicant was initially successful in that challenge before Simpson J with respect to one count, her Honour's decision was overturned on appeal. The applicant then obtained an order from Sully J for a permanent stay in respect to the first count. This order was again overturned by the Court of Criminal Appeal. The trial proceeded but the jury was discharged as it was unable to reach a unanimous verdict. That was the first trial. 7 The second trial commenced before Johnson J on 26 March 2007 and continued, as I have said, until 7 May 2007. On that date, a juror failed to attend court. It was discovered that he had been arrested on a driving offence, that he was disqualified from driving and that he had so been disqualified when the jury was empanelled. Under the Jury Act 1977 (NSW), he was, accordingly, disqualified from being a juror. As I have explained, this led to the second trial being aborted. 8 Another matter that the applicant says is part of the background concerns an amount of some $785,000 that the applicant expected to receive from a litigation funder to finance the third trial. In a complex series of transactions, including transfers of funds that were made in error, the funds the applicant expected to receive were not transferred to him but ended up in the hands of another party. This led to litigation, the result of which was that the party who, according to the applicant, would have transferred the $785,000 to him, was held entitled to the money. 9 On 14 May 2007, however, before the funds could be transferred to the applicant, the Australian Taxation Office issued a notice under the Taxation Administration Act 1953 (Cth), in effect, freezing the money. This, for the time being, prevents the applicant from having access to these funds and, effectively, prevents him having access to them before the commencement of the third trial which is scheduled to take place in some two weeks' time. 10 The nub of the applicant's submission is that the combined effect of having to pay his lawyers for the eight weeks for which the second trial endured, and the loss of the funds caused by the Australian Taxation Office's freezing notice, is that he has been placed "in an invidious situation to be able to continue funding for the commencement of a new trial expected to last some four months." He contends that what has occurred has resulted in serious unfairness to him in the trial proceedings. 11 Johnson J's decision to refuse to grant the temporary stay was a discretionary one. The ground of appeal given orally by Mr Sutherland does not assert that his Honour committed any error of law. The principles governing a discretionary appeal were stated by Kitto J in Australian Coal and Shale Employees' Federation and Anor v The Commonwealth (1953) 94 CLR 621 (at 627) as follows: "I shall not repeat the references made in Lovell v Lovell [(1950) 81 CLR 513 at 532 to 534] to cases of the highest authority which appear to me to establish that the true principle limiting the matter in which the appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists of acting upon a wrong principle, or giving way to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v The King (1936) 55 CLR 499 [at 504 to 505]." 12 According to the oral ground, no error of in principle is asserted. Thus, that ground can only succeed if the result of his Honour's decision is so unreasonable or plainly unjust that this court might infer that there was a failure properly to exercise the discretion conferred on the judge. On the other hand, if one is to approach the matter on the basis that the arguments contained in the written submissions remain alive, then it is arguable that there was an error of principle on the part of his Honour. 13 I shall deal with the latter question first (that is, whether there has been an error in principle as argued in the written submissions). This question is whether the test for granting the relief sought required the applicant to prove that the unfairness he alleged was caused by fault on the part of the prosecution. 14 Johnson J applied the test enunciated by Fullerton J in R v Selim [2007] NSWSC 154 where her Honour said (at [57]): "I am content to proceed on the basis that there needs to be demonstrated an identifiable injustice for which it can be sensibly said that prosecuting authorities should be held responsible before a temporary stay is ordered, given that the effect of ordering a stay is to impose on them the costs of previous proceedings before they may be permitted to prosecute again." 15 I shall assume that Johnson J understood Fullerton J's reference to an identifiable injustice to incorporate fault on the part of the prosecution. 16 It is well settled that the Court possesses powers to stay criminal proceedings in order to prevent injustice (which I understand to include unfairness) to the accused. 17 In determining whether a stay should be granted in the exercise of this power, the focus will be on the misuse of the court's process by those responsible for law enforcement. As a general proposition, default or impropriety on the part of the prosecution can, depending on the circumstances, be so prejudicial to an accused that the trial is made an unfair one. The touchstone in every case is fairness. The power is to be exercised only in the most exceptional circumstances. These propositions are taken from Jago v The District Court of New South Wales (1989) 168 CLR 23, in particular, the judgment of Mason CJ at 25 and following, Brennan J at 45 to 47, Deane J at 56 to 58, Toohey J at 71 to 72 and Gaudron J at 74 and 77. 18 In R v Mosely (1992) 28 NSWLR 735, Gleeson CJ, with whom Kirby P and Mahoney JA agreed, dealt with a case where, on the morning of the hearing without prior notice to the respondent or his legal representatives, the Crown prosecutor applied for an adjournment because two police officers who were material witnesses and who were to give evidence on that day had unexpectedly been diverted to other duties. 19 The trial judge formed the view that the Crown should have the adjournment that it sought, but only on terms that it paid the respondent's wasted legal costs. His Honour decided that to grant an adjournment, in circumstances where the respondent would have to bear such costs, would be unfair and oppressive to the respondent. His Honour took the view that, provided this unfairness could be remedied, the interests of justice required that the adjournment be granted. He believed that he had the power to remedy the unfairness in this way. 20 On appeal to this Court, Gleeson CJ held that the trial judge had had no power to make the order for costs in question. That order was, therefore, set aside. Nevertheless, Gleeson CJ accepted that the trial judge had the power to protect the respondent from unfairness by granting the adjournment subject to an appropriate order for costs. His Honour said (at 740 to 741): "The adjournment which the Crown asked for and obtained would, in the particular circumstances, have caused unfair prejudice to the respondent unless the respondent could by some means be given protection in respect of costs."

His Honour agreed with the order proposed by Simpson J that the trial be stayed until the prosecution paid the reasonable costs incurred by the applicant in relation to the trial. The basic reason for his Honour's decision was that the Crown was seriously at fault in causing the defence to incur wasted costs. I do not understand Santow JA to have said anything different to the general approach expressed in Jago in regard to the circumstances under which the Court would act in granting a stay of proceedings. His Honour, in his reasons, was indeed focusing on the misuse of the court process by the prosecution. I do not understand the reasons of Simpson J in the same case to be based on any different approach: see, in particular, 634 [47]. 23 The authorities to which I have referred establish that the power of the court to grant a stay, permanently or temporarily, stems from the court's power to prevent injustice or unfairness in the trial in a case where a temporary stay is sought, subject to the prosecution paying costs. In my opinion, practically speaking, unfairness cannot be established without proof of fault on the part of the prosecution. 24 In the circumstances that I have outlined, and on my understanding of the law as I have explained it, Johnson J did not commit any error of principle. 25 The conclusion that unfairness cannot be established without proof of fault on the part of the prosecution disposes of the applicant's main argument. I shall, nevertheless, deal with the other points raised. 26 His Honour expressed the view that the circumstances under which the jury came to be discharged in the second trial disclosed no fault on the part of the prosecution. Although the applicant apparently seeks to challenge this finding, Mr Sutherland - when pressed - did not submit that there was negligence on the part of the prosecution resulting in the termination of the second trial and did not submit that there was any impropriety on the part of the Australian Taxation Office in freezing the funds. I, therefore, conclude that Johnson J did not err in finding that there was no fault on the part of the prosecution. 27 In submitting orally that fairness demanded that the application be granted, even without fault on the part of the prosecution, Mr Sutherland argued that the second trial aborted by reason of a fault in the machinery of the administration of justice leading to the commencement of a criminal trial. He distinguished between a fault in the machinery, in this context, and fault on the part of the prosecution. 28 The machinery whereby jurors are selected involves a self-selection process in the appointment of a panel of jurors. Mr Sutherland accepted that a questionnaire relating to the qualification of jurors was sent out at some stage prior to the disqualified juror being appointed to the panel. There is no evidence as to the particular stage at which this occurred. There is also no evidence as to whether the Sheriff conducted any investigation, as to the qualification of the jurors, prior to the empanelment of the jury. 29 For this reason, in my opinion, the unfairness asserted, if it exists, has to be regarded as an unfortunate occurrence in the ordinary routine of litigation. It arose by reason of the juror's failure to disclose that he was disqualified. No other person was shown to have done anything wrong in this respect. In my opinion, what occurred is not so extraordinary as to justify the exceptional remedy sought. 30 As regards the freezing of the funds, Johnson J held that the evidence did not demonstrate that the action of the Australian Taxation Office in freezing the funds was related to the trial and the conduct of the Crown in the trial. His Honour said that the taking of such action by the Australian Taxation Office followed investigatory steps taken in, and after, November 2006. I have noted that the applicant does not contend that such action by the Australian Taxation Office was, in some way, improper. 31 I would add that the evidence before this court does not establish that the applicant is unable to fund the costs of the third trial. 32 Mr Sutherland drew attention to evidence from a solicitor, acting for the applicant, who stated that, as at 21 May 2007, he had no funds available in his trust account to meet the defence costs of what was expected to be a four-month trial. Mr Sutherland also referred to an affidavit by an officer of the litigation funder which is financing the trial at the instance of the applicant. This person indicated that the question whether funding would be available was uncertain, but, were it to become available, the arrangements necessary for that to occur would take some two months. 33 None of this evidence bears on the applicant's personal financial position and he has said nothing about that to this Court. 34 In the circumstances, having found that his Honour made no errors of principle or fact, I come to the inevitable conclusion that the applicant has not met the requirements for a successful appeal of this kind. Not only was the decision his Honour made well open to him, it was correct. I would refuse the application for leave to appeal. 35 LATHAM J: I agree and I agree with the reasons given by Ipp JA. 36 FULLERTON J: I also agree. 37 IPP JA: That will be the order of the Court. **********

Petroulias v R

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