R (Cth) v Petroulias

Supreme Court of NSW|2006-12-11|Before: Johnson J, Mr P, Sully J, Before Sully J

CITATION : R (Cth) v Petroulias (No. 6) [2006] NSWSC 1422

DECISION : See paragraphs 36 to 41.

CATCHWORDS : CRIMINAL LAW - application for voir dire in support of objection to evidence as being improperly obtained for purpose of s.138 Evidence Act 1995 - similar voir dire in advance of earlier trial of accused on same grounds - lengthy oral evidence given on voir dire - objection failed at earlier trial and evidence admitted - whether Crown witnesses ought be recalled to give evidence on voir dire before retrial - whether transcript of evidence given on earlier voir dire ought be received

R v Petroulias (No. 1) [2006] NSWSC 788 R v Callaghan (2001) 4 VR 79 R v Lars (1994) 73 A Crim R CASES CITED : R v Meier (NSW Court of Criminal Appeal, 21 May 1996, unreported, BC9601936) R v Taylor (NSW Court of Criminal Appeal, 18 April 1995, unreported, BC9507219 at pages 25-26) Briginshaw v Briginshaw (1938) 60 CLR 336 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

PARTIES : Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)

COUNSEL : Mr P Hastings QC; Mr C Hoy (Crown) Mr R Sutherland SC; Mr G Walsh (Accused)

SOLICITORS : Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2002/93 Regina v Nikytas Nicholas Petroulias (No. 6) (on procedure for adducing evidence on voir dires concerning objections to evidence under s.138 Evidence Act 1995 )

JUDGMENT 1 JOHNSON J: By way of pre-trial application, the Accused seeks a voir dire concerning two areas of objection. Both objections were taken, in March 2005, before Sully J who later presided over a trial at which the jury could not agree upon a verdict and was discharged. 2 The Accused's re-trial is to proceed before me, and a jury, in March 2007. The two areas of objection are:

(a) objection under s.138 Evidence Act 1995 to the admissibility of material obtained pursuant to several telephone intercept warrants and search warrants, upon the grounds that the evidence was improperly obtained in that the warrants were procured by fraud or misrepresentation ("the Warrant Voir Dire");

(b) objection under s.138 Evidence Act 1995 to the admissibility of the whole of the evidence of Richard Llewellyn Morgan upon the grounds that it was improperly obtained as a result of alleged conduct of certain members of the Australian Federal Police ("the Morgan Voir Dire").

The Warrant Voir Dire 3 Before Sully J, the Warrant Voir Dire involved the taking of evidence, including lengthy cross-examination, from Mr Michael O'Neill, a solicitor who was, in March 2005, an Assistant Commissioner of Taxation. Mr O'Neill gave evidence on the voir dire before Sully J over three days between 9 and 11 March 2005 (157 pages). Mr O'Neill had been called at committal proceedings over seven days in November and December 2001 (482 pages). He was called at the trial before the jury on 3 May 2005 (12 pages). 4 On 29 March 2005, Sully J overruled the objection with respect to the Warrant Voir Dire. I am informed by Mr Sutherland SC, for the Accused, that the same objection is taken before me to that which was taken before Sully J and considered and rejected by his Honour in his judgment of 29 March 2005 (PT 611-612, 2006). 5 In rejecting the objection Sully J observed, inter alia, that (page 16): "When the detailed allegations were put to Mr O'Neill, he dealt with them in a way that seemed to me to be credible and to accord with the objective probabilities." The Morgan Voir Dire 6 Before Sully J, the Morgan Voir Dire involved the taking of evidence, including lengthy cross-examination, from a number of witnesses, including the following:

(a) Federal Agent Stephen Dametto, who gave evidence on the voir dire over two days on 15 and 22 March 2005 (72 pages). Federal Agent Dametto had given evidence, over three days in December 2001, in the committal proceedings (163 pages). He was called before the jury in June 2005 and gave evidence over four days (192 pages).

(b) Federal Agent David Wildman gave evidence on the voir dire over two days on 14 and 22 March 2005 (92 pages). Federal Agent Wildman had given evidence in the committal proceedings, over three days in March 2002 (91 pages). In June 2005, he gave evidence before the jury at the trial (58 pages)

(c) Mr Richard Morgan was called on the voir dire on 21 March 2005 (69 pages). He had been called at the committal proceedings in November 2001, and gave evidence over seven days (517 pages). Mr Morgan gave evidence over five days at the trial in May 2005 (332 pages). 7 I am informed by Mr Sutherland SC that the same objection is taken before me as that taken before Sully J and determined by his Honour adverse to the Accused on 29 March 2005 (PT 611-612, 2006). In that judgment, Sully J concluded that he was (page 13): "Wholly unpersuaded that the applicant has established any proper basis for my preventing the Crown from presenting Mr Morgan as a witness before the jury at trial."

8 I am not bound by the decisions of Sully J concerning these objections in advance of the first trial. In considering the objections, in due course, I will consider the evidence and submissions and make my own independent assessment for the purpose of ruling on the applications. I will, however, have regard to the decisions of Sully J in my own process of decision making: R v Petroulias (No. 1) [2006] NSWSC 788 at [51]-[54].

Application for Voir Dire Examinations 9 The Accused has made applications for the Warrant and Morgan Voir Dires. The Crown did not contend that these are not appropriate matters for a voir dire (PT 613-614, 2006), although it was emphasised by the Crown that pragmatic considerations lay behind that stance. 10 The debate which ensued, yesterday, concerned the scope and nature of the evidence to be adduced on the voir dire, and the extent to which further oral evidence should be taken from Crown witnesses called on equivalent voir dires before Sully J. The two positions adopted by the Accused, on the one hand, and the Crown, on the other, may be summarised as follows.

The Accused's Submissions 11 Mr Sutherland SC submits that the transcript of earlier voir dires ought be received, conditional on the basis that there is an opportunity to further cross-examine the witnesses called by the Crown. 12 With respect to the Warrant Voir Dire, the Accused submits that Mr O'Neill should be called. 13 On the Morgan Voir Dire, Mr Sutherland SC submits that Federal Agents Dametto and Wildman ought be called, together with Mr Morgan. 14 The Accused also submits that Federal Agent Andrew Wills ought be called on the Morgan Voir Dire. Federal Agent Wills was called in the trial, in June 2005, initially for a Basha ((1989) 39 A Crim R 337) enquiry, and then to give evidence in the presence of the jury, both processes occupying 44 pages of transcript. 15 Mr Sutherland SC accepts that any further cross-examination, on the voir dire, of witnesses is capable of being confined by the Court in the event of repetition of matters previously canvassed, or questioning which does not assist the Court on the issues to be determined on the voir dires. He submits that focussed additional cross-examination ought be allowed, without the need for the Accused to identify additional areas of cross-examination. Mr Sutherland SC submits that there are issues of demeanour that will be relevant to the determination of the objections.

The Crown Submissions 16 The Crown submits that the transcript of evidence is available from the previous voir dires, and that Crown witnesses ought not be called again, at least without some identification of new areas or issues to be addressed in cross-examination. 17 The Crown notes that Mr Sutherland SC has declined to identify additional areas, with the exception of one area concerning Mr O'Neill. The Crown submits that the credibility of witnesses may be determined from the transcript of previous evidence, and that witnesses should not be called again solely for the purpose of the Court assessing demeanour. 18 The Crown points to authority, including the observations of Winneke P in R v Callaghan (2001) 4 VR 79 at 90 [21], involving criticism of the "bloated voir dire" in the context of long criminal trials. The Crown submits that, in maintaining control over its own processes, the Court ought restrict the evidence on the voir dire to the transcript of past evidence, unless the Accused identifies a new basis for the application.

Some Propositions Concerning Applications for Voir Dire Examinations 19 In the course of submissions on these matters yesterday, the Court was urged to operate from first principle and I will do so. A number of propositions ought be stated. 20 Firstly, the grant of a voir dire is a matter of discretion and not a right. A party seeking a voir dire must first satisfy the Judge that there are reasonable grounds for a voir dire, and counsel must identify the issues to which it is directed. Specification by counsel of issues to be examined on a voir dire is important to allow objections to be taken and considered on relevance: R v Lars (1994) 73 A Crim R at 114-115; R v Meier (NSW Court of Criminal Appeal, 21 May 1996, unreported, BC9601936 at pages 16-18). It is a matter for the trial judge's discretion whether a voir dire examination should be held in relation to an application to exclude evidence in the exercise of discretion: R v Taylor (NSW Court of Criminal Appeal, 18 April 1995, unreported, BC9507219 at pages 25-26). Here, no argument was advanced by the Crown contrary to the exercise of discretion to allow a voir dire. However, the discretionary starting point for an application of this type remains relevant to the manner in which the voir dire hearing is conducted. 21 Secondly, a s.138 Evidence Act 1995 objection involves initially an onus on the Accused to establish illegality or impropriety. As Sully J observed in his judgments of 29 March 2005, this onus ought take into account the seriousness of the matters alleged, by application of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336. 22 Thirdly, it is the usual practice on a voir dire for the Crown to call witnesses. Once a voir dire has been accepted as being an appropriate procedure to be used, even in a case involving an objection by the Accused seeking the discretionary rejection of evidence where the Accused bears the onus, the usual practice is that the Crown will call witnesses relevant to matters for determination on the voir dire, who will be cross-examined on behalf of the Accused. 23 Fourthly, it might be said that the Crown has done that once already in this case, and the transcript of the evidence is available. It might be open to the Crown, in the exercise of prosecutorial discretion, to decline to call witnesses again on the voir dire but to offer the transcript of earlier evidence for tender. I emphasise, in this context, that the head of prosecutorial discretion being considered arises in the context of an application for discretionary exclusion of evidence where the Accused bears the onus. It may be open to the Crown to offer the transcript of previous evidence for tender. If the Accused objects to the tender of the transcript, then it may be a question for the Accused to then determine whether he wishes to call the witnesses himself. I make these observations because, as a matter of first principle, it must be kept in mind that it is the Accused who alleges impropriety as the basis for triggering the s.138 discretion. 24 Fifthly, submissions have been made with respect to a number of provisions in the Evidence Act 1995 including ss.9, 11, 189 and 190. Section 9 makes clear that Common Law principles continue to apply unless excluded by the statute, and s.11 refers to the general power of the Court to control proceedings before it. I do not think that the resolution of the present question turns on the application of particular sections in the Evidence Act 1995. 25 Sixthly, if the Crown simply declined to call witnesses again on the voir dire, it would then be a matter for the Accused to determine what course he wished to take on an application where he bears the onus of proof and with the Briginshaw principle applying. 26 Seventhly, on this analysis and operating from first principle, a conclusion may be reached where, if the Accused wishes to press the present objections, then it may be a matter for him to adduce evidence, including the tendering of transcript and, if the Accused wishes to adduce additional oral evidence, to make necessary arrangements for the calling of witnesses, including any Crown witnesses called on voir dires before the first trial. 27 I have undertaken that examination because it seems to me to be an analysis that is, in theory at least, available in circumstances where before a retrial an issue of this type is raised. 28 If I had been the Judge at the first trial, then I anticipate that the present controversy would have little scope for application. I would have seen the witnesses, heard the evidence and made rulings. It would have been open to the Accused, upon the basis of additional material, to seek to persuade me to a different view but that would be a matter for the Accused. Of course, I was not the trial Judge at the earlier trial. 29 It is a common, if not invariable, experience where a lengthy voir dire, involving oral evidence, has occurred at an earlier trial that the transcript of the evidence from the earlier voir dire will be received on the voir dire at the retrial before a different Judge. There may, or may not, be additional questioning of witnesses.

Approach to the Present Case 30 What, then, is the appropriate course to resolve the present question? I do not propose to approach the matter on the basis that the Crown ought effectively stand back with respect to these witnesses and leave it to the Accused. It seems to me that the justice of the case, and the appropriate resolution of the matters which I have to determine, involves something of a mid-position to those submitted by the parties. 31 I keep firmly in mind, however, the discretionary nature of this process. The Accused has no right to a voir dire, let alone a right to a voir dire over which he has control as to length and procedural form. These matters are in the control of the Court, and not the parties. 32 I bear in mind, in particular, that I must make up my own mind and form my own independent assessment of the issues raised on the voir dire. 33 It is said that there are issues concerning the demeanour of witnesses. Reliance upon the concept of demeanour is not especially persuasive. The role of demeanour must not be overrated: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 at [16]-[27]. Nevertheless, I note that Sully J certainly formed a positive view of Mr O'Neill with respect to demeanour in the Warrant Voir Dire (see paragraph 5 above). 34 I do not think that a reading of the transcript, on an issue of this sort, is a sufficient basis for assessing credibility of witnesses.

Witnesses to be Called on Voir Dires 35 The Crown has stated that Federal Agent Wildman is in Hong Kong. It is not suggested that other Crown witnesses are not available. 36 In my view, the appropriate course is that the transcript of witnesses on the earlier voir dires (and, indeed, if it is considered relevant, the transcript of evidence of those witnesses at the committal proceedings and at the first trial) ought be received on these voir dires, together with such documentary material of the type tendered before Sully J as the parties consider relevant to the matters which I have to decide. 37 Putting to one side Federal Agent Wildman, it is my view that Mr O'Neill, Federal Agent Wills, Federal Agent Dametto and Mr Morgan ought be made available by the Crown for further cross-examination. I note, however, that there has been extensive, if not exhaustive, cross-examination of these persons to date. I will bear that firmly in mind in controlling the process which I will allow to occur. Cross-examination will not be open-ended. I will not permit it to be repetitive of issues raised previously, unless there is clear identification of a basis for allowing that course. 38 If objection is taken, or even if no objection is taken, I will assess the cross-examination to determine whether it is assisting the Court in the determination of matters requiring resolution on the voir dires. I note that Mr Sutherland SC has indicated that both the Warrant and the Morgan Voir Dires ought be accommodated within five days, by way of evidence and submissions. 39 In my view, Federal Agent Wildman is in a different position. He is in Hong Kong. There is a transcript of evidence given by him on prior occasions. The Accused has not specified any areas of further cross-examination with respect to Federal Agent Wildman. The question might be asked rhetorically - what is there that he can add, for the purpose of the voir dire, to the evidence which he has given before? In the absence of cogent reasons offered by the Accused, I do not expect the Crown to produce Federal Agent Wildman on the voir dire. Whether his transcript is received or not will be a matter for the parties. 40 It will be a matter for the Accused to determine whether he wishes to take a step (which he has not so far taken) to identify additional areas which he seeks to explore with Federal Agent Wildman, in support of an argument that Federal Agent Wildman ought give evidence on the voir dire. 41 Accordingly, the approach I will take to the reception of evidence on the voir dires when the hearing commences on 30 January 2007 will be along the lines which I have indicated. The voir dire hearings will not be open-ended. I will expect focused cross-examination. I will be alive to the issues which have been identified in the judgments of Sully J which, I am told, are the same issues to be explored on these voir dires.

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