Petroulias v Wills [2004] NSWSC 739

New South Wales Supreme Court

CITATION : Petroulias v Wills [2004] NSWSC 739 HEARING DATE(S) : 3 & 4 August 2004 JUDGMENT DATE : 16 August 2004

JURISDICTION: Common Law Criminal JUDGMENT OF : Sperling J at 1 DECISION : (1) Grant leave to appeal; (2) Summons dismissed; (3) The plaintiff to pay the defendant's costs of the summons.

CATCHWORDS : Criminal law - committal proceedings - application for leave to appeal against order for committal and against dismissal of application for costs - no question of principle LEGISLATION CITED : Crimes Act 1914 (Cth), s29D Justices Act 1904, s41A Peters (1998) 192 CLR 493 CASES CITED : Wills v Petroulias (No 1) (2003) 204 ALR 162 Wills v Petroulias (No 2) (2003) 204 ALR 180 PARTIES : Mr Nikytas Nicholas Petroulias Mr Gary Andrew Wills FILE NUMBER(S) : SC 11249/04 COUNSEL : Mr NJ Clelland SC for the Plaintiff Mr PS Hastings QC for the Defendant SOLICITORS : Coadys for the Plaintiff Commonwealth Director of Public Prosecutions for the Defendant

LOWER COURT Local Court JURISDICTION : LOWER COURT 20048335/012 FILE NUMBER(S) : LOWER COURT Sweeney LCM JUDICIAL OFFICER :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Criminal

Sperling J

Monday, 16 August 2004

11249/04 Nikytas Nicholas Petroulias v Gary Andrew Wills

Judgment 1 Sperling J: This is an application for leave to appeal by Mr N N Petroulias as plaintiff against an order of the Local Court committing the plaintiff for trial on a charge of defrauding the Commonwealth, and against the decision of the Local Court dismissing an application for costs of the committal proceedings made on his behalf. 2 It was agreed that I should receive the argument on the application for leave and on the merits of the appeal concurrently. 3 On 24 March 2000 the plaintiff was charged with conspiracy to defraud the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth). 4 Section 29D provides as follows: A person who defrauds the Commonwealth… is guilty of an indictable offence. 5 In November 2001, committal proceedings commenced before Ms D Sweeney LCM in the Local Court. 6 In December 2001, the following charge was substituted, along with two further charges not presently relevant. That Nikytas Nicholas Petroulias between about 1 September 1997 and 27 February 1999 did defraud the Commonwealth, namely, the Australian Tax Office, in that while an officer of the Australian Tax Office he did by dishonest means assist taxpayers to avoid the payment of tax. 7 On July 2002, her Worship committed the applicant for trial on each of the three charges. 8 On 3 March 2003, Simpson J quashed the order for committal, holding that the charge as formulated required proof of the actual loss by the Commonwealth. That, it was held, required proof by the Crown that the plaintiff's conduct in issuing Private Building Rulings and Advance Opinions had incorrectly rendered unpayable tax which would otherwise have been payable, whereas there was no evidence that the Rulings and Opinions were wrong and hence no evidence of actual loss. 9 On 3 October 2003, the Court of Appeal, in Wills v Petroulias (No 1) (2003) 204 ALR 162, set aside Simpson J's order. On 22 December 2003, the Court of Appeal, in Wills v Petroulias (No 2) (2003) 204 ALR 180, confirmed its order setting aside Simpson J's order but now made the following additional order: Remit the casse to the magistrate to make the order of committal authorised by law and to amend the order accordingly.