Petroulias v R

Court of Criminal Appeal (NSW)|2010-05-12|Before: Hodgson JA, Rothman J, Barr AJ, Fullerton J, Johnson J

The applicant's deteriorating health 30 The applicant tendered two reports of Dr Ben Teoh, Exhibits 1 and 2. Dr Teoh is a psychiatrist. He treated the applicant after a referral in April 2008 and then diagnosed the applicant as suffering from a Bipolar Mood Disorder and Aspergers Syndrome. Having dealt in his report of 9 February 2010 with the applicant's history and his current complaints, Dr Teoh restated the opinion that the diagnosis was of Bipolar Mood Disorder and Aspergers Syndrome. He said that treatment was complicated because of an adverse reaction to prescribed drugs. The Aspergers Syndrome had made it difficult for the applicant to deal with the relationship with inmates and prison guards. He had a tendency to appear aloof and had difficulty expressing emotions. His difficulty in relations with guards and inmates had aggravated his level of stress as well as his Mood Disorder. He proposed a course of treatment if the applicant should be released on bail and remarked that he had a good insight into his condition. In his report 23 March 2010 Dr Teoh confirmed the diagnosis and said that he thought that the applicant's psychiatric condition had deteriorated following his detention. 31 Johnson J received a large body of medical evidence on sentence. It was then contended that the applicant was suffering from Bipolar Disorder and Aspergers Syndrome. A number of experts, including Dr Teoh, gave evidence. His Honour made a careful analysis of the evidence of all the experts. He noted that Dr Teoh had been treating the applicant for Bipolar Mood Disorder and had prescribed lithium. His Honour concluded that though he was satisfied that the applicant was depressed at that time and had been for some time, he was not satisfied on the balance of probabilities that he was suffering from Bipolar Mood Disorder. His Honour continued to say, that if he was, he did not consider that the condition was severe. 32 His Honour was not satisfied that the applicant was at that time suffering or had ever suffered from Aspergers Syndrome. He considered the factual foundation for that proposition tenuous. As with Bipolar Disorder his Honour continued to say that if the offender did suffer from Aspergers Syndrome it was a very mild form of the disorder at most. 33 In view of those findings, arrived at at the conclusion of a contested proceeding, I am reluctant to give much weight to the opinions expressed by Dr Teoh in the documents put before this Court. I would be prepared to say that the applicant might be suffering from Bipolar Disorder and that he might be suffering from Aspergers Syndrome, but that if he is, they are in mild form.

The prospects of success on appeal 34 While I appreciate that the Court must look at the aggregate effect of all the matters relied on as constituting special or exceptional circumstances justifying the grant of bail, it is worth noting that, at least where the grounds of appeal are put forward as the only or the principal factor to demonstrate special or exceptional circumstances, an applicant has to show much more than that the grounds seem arguable. It was said in R v Wilson (1994) 34 NSWLR 1 that the applicant must appear "most likely to succeed" (at 6). 35 There are six grounds of appeal against conviction, which I summarise thus- 1. His Honour erred in permitting the jury to return a verdict on the second count, which was bad for duplicity; 2. His Honour erred in his directions about causation; 3. His Honour erred in failing to direct the jury on count 2 that they had to be satisfied beyond reasonable doubt that the applicant's rulings and opinion were in fact wrong in law before they could be satisfied that the appellant's exercise of duty as a Commonwealth officer had been improperly affected; 4. His Honour ought to have discharged the jury; 5. The trial process miscarried when his Honour received a note from the jury which was not disclosed to Counsel at the time; and 6. There is a reasonable apprehension that a miscarriage of justice has occurred. 36 The question raised in the first ground of appeal is whether the actus reus of the s 73 count was in effect a continuing conspiracy but not left to the jury as such. Because of the emphasis in the summing up on the actus reus of the first count, which charged the most serious offence and on which they were unable to agree, the jury must have failed to realise the true nature of the actus reus of the second count. Mr Sutherland sets out his reasons at some length. 37 To succeed on the second count the Crown had to prove that the appellant agreed to receive money upon an understanding that the performance of his duty would thereby be improperly affected. One of the ways it sought to demonstrate improper affect was that the appellant caused the impugned rulings and opinions to issue. His Honour gave written directions about causation. It is submitted in the second ground of appeal that this required the jury to regard qualified solicitors and tax officers as mere "puppets" or "agents" of the appellant in issuing those advance opinions and private rulings. It is submitted that whatever the applicant might be shown to have done, the result relied on was not caused by him. Whatever he did was not the proximate cause. The acts of the solicitors and tax officers in issuing the opinions and rulings were their own acts, not the applicant's. The chain of causation was broken. Reference is made to authority, including R v Royall (1991) 100 ALR 669 and March v E & M H Stramare Pty Ltd (1991) 99 ALR 423. It is submitted that the manner in which causation was left to the jury excluded the question of the voluntariness of the actions of the actual issuing officers. 38 The third ground of appeal asserts that unless the jury were satisfied that the rulings and opinions were not correct, they could not be satisfied that the exercise of duty by the applicant had been improperly affected. They were not so instructed. 39 The fourth ground of appeal asserts that his Honour ought to have discharged the jury and erred in failing to do so. The trial was a long one and attention is drawn in the submissions to interruptions to its progress. There is a litany of events noted by Mr Sutherland in his submissions. I have drawn out a few of them, as follows. Only three of the twenty-eight sitting weeks were not interrupted. More than fifty days were lost, forty-eight of them due to juror illness. There were difficulties with the jurors personally, apart from absence through illness. One asked to be discharged but was not discharged. She renewed her application and it was successful. The trial continued before the remaining eleven jurors. During addresses a juror wished to be excused on each of five days for an interview and assessment process relating to his work. Another juror wished to be excused for elective surgery on three separate days and for a follow up medical examination on a fourth day. There were other absences as well. Interruptions continued into Counsel's addresses. There was a change of foreman. After the jury retired the juror who had been the foreman for most of the trial, who in everyone's opinion manifested a diligent and intelligent approach to the task, asked what would happen to the trial if there were no verdict before he was due to begin training for his new job on the 10th of December. He was eventually discharged. Another juror, who was pregnant, asked to be discharged. Eventually, a long time after the expiry of the original estimated time for the trial, the verdict was taken from ten jurors. 40 The fifth ground of appeal draws attention to the note received by his Honour from the jury some days after they had retired enquiring about majority verdicts and apparently disclosing voting numbers. Although the parties did not know it, his Honour had previously received a note from a juror indicating a prospective problem with sitting past a certain date in the following week. The existence of the note was disclosed by the trial judge at a later time, after it had been decided to permit the jury to separate. Complaints about that are articulated and the authorities on the disclosure of the contents of jury notes are called in aid. 41 The sixth ground of appeal relies on a number of matters, including some of the jury difficulties referred to in the previous ground of appeal but relying particularly on what, it is said, was a clear dissension in the jury room, audible throughout the court building, the replacement of the foreman and interruptions to the trial process. 42 This Court cannot do more than make a superficial examination of the grounds and the submissions for present purposes. They do not strike me individually or collectively as rendering the applicant most likely to succeed. 43 There are grounds and submissions in the application for leave to appeal against sentence. I do not intend to deal with them, however, because the non-parole period will expire only three days after the first day of hearing. It seems unlikely that if the conviction appeal fails the applicant is likely to achieve any practical benefit from success in the sentence appeal.

Possible further grounds of appeal 44 The applicant raised two further matters before this Court. The first was based upon opinions of Dr Nathan Serry, psychiatrist. The Court's attention was drawn to a report of his written on 8 May 2008. It contained these passages. "I would further state that your client's lack of judgment as part of his Bipolar Disorder combined with his considerable grandiosity would have left him with little understanding of the impact of his actions on others…. You have further requested that I comment on the apparent 'consciousness of guilt' about your client's actions and an attempt to cover his tracks. I would suggest that whilst this is one possible explanation of your client's behaviour. There are a number of other possible explanations including a degree of in sightlessness given his mood vulnerability and lack of understanding or appreciation of interpersonal interactions given the Aspergers Syndrome." 45 The applicant did not attempt to formulate for this Court any ground of appeal based upon those opinions. As I understood his attitude, he would wish to add, if permitted, a ground or grounds contending, on this fresh evidence, for a reasonable doubt about the mental element of the offences contained in counts 2 and 3. 46 I do not think that a further ground of appeal based upon Dr Serry's evidence in his report of 8 May 2008 has a strong prospect of success. Although the evidence would be fresh for the purposes of conviction, it existed at the time of sentence and was considered by his Honour. His Honour had the letter to which I have referred as well as Dr Serry's reports of 20 March and 19 May 2008. His Honour observed at [163] that the factual material upon which Dr Serry's opinions were based was both thin and incomplete. In his Honour's view no real weight could be attached to Dr Serry's attempts to explain aspects of the offender's conduct at the time of the offences. His Honour noted that no satisfactory or complete summary of the evidence in the trial had been provided to Dr Serry and no attempt was made by Dr Serry to grapple with the substantial body of incriminating evidence. His Honour was not persuaded that any weight should be attached to his opinions about the offender's mental state at the time of the offences. As I have already observed, his Honour did not consider that the applicant was suffering from Bipolar Disorder or from Aspergers Syndrome. 47 The second matter relied on by the applicant related to the text of a number of internet messages sent between 18 December 2007 and 28 August 2008. Copies of the text were annexed to the affidavit of Mr Bill Lambros of 23 March 2010. 48 I will not go into the detail of what the senders of those messages said. It is sufficient to say that they discussed the applicant and the trial and made statements that could have been about things said by juror to juror in the jury room. They contain expressions of opinion, about the way the discussions were conducted, about personalities and pressures applied during discussions. The senders of the messages do not disclose their identities but use nicknames. 49 As I understood it, the applicant's intention would be to put this material before this Court in the Appeal and to argue on the basis of it that there was a miscarriage of justice. 50 One of the reasons the applicant put forward as justifying bail pending the appeal was to enable him to make further enquiries about these internet communications. He submitted that the Sheriff might interview the former jurors about the matter. 51 It seems to me that the applicant would have enormous difficulties in relying on this material in the appeal. 52 First, the authors of these messages are unidentified. No court would, in my view, infer without substantially more evidence than this that the authors or any of them were members of this jury. There is a fundamental problem of provenance, and therefore of relevance. Even if that problem could be overcome, the material relied on would be inadmissible as hearsay. Thirdly, the material would be inadmissible as breaching the confidence of the jury room. In R v Burrell [2007] NSWCCA 65 McClellan CJ at CL, with whom the other members of this Court agreed, said- "The deliberations of the jury are not a matter upon which the Crown and the accused can join issue, because it is not a subject in respect of which evidence will be admitted by the court." 53 While there appears to be no embargo upon jurors or former jurors speaking to one another about confidential jury matters, s 68A Jury Act 1977 makes it an offence for a person to solicit information from a former juror for the purposes of obtaining information about the deliberations of a jury or how a juror or the jury formed any opinion or conclusion about an issue arising in a trial. Certain persons and institutions are expressly excluded by subs (4) from the prohibition, but they do not include the Sheriff. The Sheriff could make enquiries only if directed to by the Court. It seems unlikely that this Court would commence a train of enquiry into these matters in view of the strong view the law takes about the confidentiality of jury deliberations. 54 In my opinion no ground of appeal based upon this material would have a strong prospect of success.

Conclusion 55 I have considered whether all the matters relied on by the applicant together constitute the necessary special or exceptional circumstances justifying a grant of bail. The applicant's position is unusual in that apart from his concerns about his health he has an appeal and a fair number of court proceedings to deal with. I do not accept that his state of health is as bad as he contends. Most gaol inmates would not be taking part in complex litigation. However, most people confined to custody find their personal, work and other lives disrupted. Many have to endure the cessation of pursuits important to them. Of the various matters put forward by the applicant as needing to be done during the next six weeks, the preparation of this appeal seems unnecessary and attendance to the various other matters, especially those in the New Zealand Courts and the Federal Court, may be impossible of achievement within a short time. 56 In my opinion the applicant has failed to show that special or exceptional circumstances exist justifying a grant of bail. 57 I make one final comment. The fact that this application has been brought about six weeks before the expiry of the non-parole period and about six weeks before the intended hearing of the appeal is remarkable. The Notice and Grounds of Appeal were not filed until January of this year, though the sentences were imposed in June 2008. The applicant himself created the existing temporal problem by seeking expedition of the hearing of his appeal. There was some discussion at the hearing about why it took so long to file the Notice of Appeal, the Grounds and the written submissions, but I do not need to say more about that save that the extraordinary delay may not have been the applicant's fault, or not all his fault. The fact remains, however, that the applicant is asserting a very short time before the hearing date that he cannot be ready by then. I do not agree with that, but it seems to me that the remedy may be in the applicant's own hands and that if he really does desire the time he asks for to prepare the appeal he can apply to this Court to postpone the hearing of the appeal. 58 The Court asked the applicant about this and he confirmed that his principal concern was to have the convictions quashed and clear his name. He expressed reluctance to try to put off the hearing, however, because he feared that Mr Sutherland might not be available at any later time. I should have thought that some accommodation ought to be possible. 59 Senior Counsel for the Crown was asked what the Crown's attitude might be if an adjournment application were made. The Crown had no time to seek precise instructions, but saw no reason why it should oppose an application to adjourn the appeal. 60 I would refuse bail. 61 The Court reserved its decision on 5 May 2010. On 10 May, without notice or leave, the applicant sent to the Court a further short submission, as follows- "Follows are two authorities on a question which arose in the bail hearing vis- Clark, being a decision of Hidden J stating there is no right in NSW prisoners to use computers and, Bounds v Smith of the US Supreme Court that is to the opposite effect.

I hope that passing these on is considered a helpful exercise to the Court of Appeal."

62 Attached to the submission were copies of the judgments of Hidden J of 19 October 2007 in Peter Frederick Clark v Timothy Neale Robards & Ors and of the United States Supreme Court in Bounds v Smith 430 US 817 (1977).

63 In Clark v Robards & Ors Hidden J held, in effect, that there was no power in the Supreme Court to order the Department of Corrective Services or the State of New South Wales to provide an inmate with a computer or to afford an inmate access to a computer or to require him to be kept in conditions that permit the use of a computer. In the latter case the United States Supreme Court upheld an earlier decision requiring that States protect the right of prisoners to access to the Courts by providing them with law libraries or alternative sources of legal knowledge.

64 I have not found these cases of assistance. The latter case is not binding on this Court. The former states the position that was assumed throughout the hearing of the application. As I said earlier in this judgment, I accept that the applicant cannot get access to the computer he desires and I have approached the application upon an understanding that he will not do so for the remainder of his non-parole period. However, none of this bears upon the question whether the applicant has demonstrated the existence of special or exceptional circumstances justifying a grant of bail.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

March v E & M H Stramare Pty Ltd (1991) 99 ALR 423 Rv Royall (1991) 100 ALR 669 CASES CITED : R v Burrell [2007] NSWCCA 65 R v Hamill (1986) 25 A Crim R 316 R v Pakis (1981) 3 A Crim R 132

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