New South Wales Supreme Court CITATION : R (Cth) v Petroulias (No. 12) [2007] NSWSC 534 HEARING DATE(S) : 9 March 2007 JUDGMENT DATE : 9 March 2007 JUDGMENT OF : Johnson J at 1 EX TEMPORE JUDGMENT DATE : 9 March 2007 DECISION : Application for variation of bail is refused CATCHWORDS : CRIMINAL LAW - application to vary bail conditions - accused taking steps to secure funding for private legal representation LEGISLATION CITED : Uniform Civil Procedure Rules 1999 (Qld) CASES CITED : R v Petroulias (No. 11) [2007] NSWSC 533 PARTIES : Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused) FILE NUMBER(S) : SC 2002/93 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) LOWER COURT DATE OF DECISION : --- LOWER COURT MEDIUM NEUTRAL CITATION : --- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST Johnson J 9 March 2007 2002/93 Regina (Commonwealth) v Nikytas Nicholas Petroulias (No. 12) JUDGMENT (on application for variation of bail: see PT987) 1 JOHNSON J: On 2 March 2007, I acceded to an application on behalf of the Accused to adjourn the commencement of his trial from 5 March 2007 to 19 March 2007. The reasons for that conclusion are contained in my judgment, R v Petroulias (No. 11). 2 Today, I have been provided with a further affidavit of Edmond William Coady sworn 8 March 2007 which annexes a number of documents. 3 In short, application for summary judgment is to be made in the Supreme Court of Queensland on Wednesday, 14 March 2007, by the Plaintiff, Prepaid Professional Administration Limited ("Prepaid"). Prepaid will seek judgment in the amount of $785,000.00 or such lesser sum, being no less than the difference between $250,000.00 and $785,000.00. Senior and junior counsel will act for Prepaid on that application. 4 Prepaid will need to make out the test in cl.292 Uniform Civil Procedure Rules 1999 (Qld) and satisfy the Court that the Defendant has no real prospect of successfully defending all or part of Prepaid's claim, and that there is no need for a trial of the claim or part of the claim. 5 The affidavits which have been served by Prepaid for the purpose of that application include an affidavit sworn by the present Accused on 8 March 2007, and affidavits of Amanda Jane Chisnall and Denise Ann Clark, which I understand were sworn yesterday. In addition, there is a further affidavit of Mr Coady to be relied upon in the Queensland proceedings, on the application for summary judgment. 6 Clause 296 Uniform Civil Procedure Rules 1999 (Qld) provides for service of affidavits by the Plaintiff and Defendant at nominated times prior to the hearing of a summary judgement application. Prepaid seeks abridgement of times required under the rules for procedural steps for the purpose of the application being heard next week. 7 I am informed that there has been no response, as yet, from the Defendant, Home Wilkinson Lowry. Clearly, no affidavit has been served by that Defendant nor, it would seem, has any indication been given as yet by the Defendant that application will be made for leave to cross examine any of the deponents of Prepaid's affidavits on the application, in accordance with cl.295 of the Rules. 8 With respect to the adjournment application that was made last week, and which is being mentioned again today for the purpose of informing the Court of the status of the application in Queensland, Mr Walsh, counsel for the Accused, submits that the appropriate course is to stand the matter over until 2 pm on Thursday, 15 March 2007 so that the Court can be informed of what has transpired in the Supreme Court of Queensland the previous day. That is an appropriate course and I will shortly make that order. 9 I have mentioned, in some detail, the deponents who have sworn affidavits in support of the summary judgment application because it bears upon the second application which is made today. On Tuesday of this week, urgent application was made to vary the Accused's bail conditions to allow him to travel to New Zealand. It was submitted that there were three purposes which he sought to achieve in New Zealand. 10 The first was to make arrangements for alternative funding, in the event that the proceedings in the Supreme Court of Queensland do not result in the expected outcome. For that purpose, it was submitted that it was necessary for the Accused to have face-to-face meetings with persons in New Zealand. 11 The second purpose was to give the Accused an opportunity to obtain access to documents and material contained in a computer held in the Registry of the High Court of New Zealand, pending the resolution of a claim for privilege with respect to those items, which apparently were seized pursuant to the exercise of statutory powers in New Zealand. 12 The third basis for the application was to allow the Accused an opportunity to visit what is, in effect, his home in New Zealand where, I am informed, he resides with Ms Clark, who is his partner. 13 I indicated to Mr Walsh on Tuesday that evidence would be required to support the application, and the application was stood over until today. 14 No further evidence has been placed before the Court today on the bail variation application. It is a present condition of the Accused's bail that he surrender his passport to the Supreme Court of New South Wales and that, other than pursuant to his conditions of bail, that he not approach international points of departure nor apply for any passport. 15 Bail Condition (b)(i) provides that, during the remand period, the Accused's passport is to be returned to him for the purpose of travel overseas, upon him providing to the Australian Federal Police (for the attention of Federal Agent Stephen Dametto) a copy of the Accused's travel itinerary, not less than seven days prior to departure or such lesser period as agreed with Federal Agent Dametto. The current condition, effectively, permits the Accused to travel on the provision of an itinerary not less than seven days prior to departure, or such lesser period as agreed with the relevant Federal Agent. 16 Today, the application to allow the Accused to travel to New Zealand is based upon the third ground only, namely, an opportunity to visit Ms Clark in New Zealand and for associated personal purposes which may involve meetings with other persons. No evidence has been placed before me on this ground. The first two grounds which were relied upon on Tuesday are no longer pressed. 17 No itinerary has been presented to Federal Agent Dametto indicating what is currently proposed by way of travel to New Zealand. However, I am asked to proceed on the basis that, if such an itinerary was provided to Federal Agent Dametto now, he would decline to agree with the lesser period proposed. 18 Accordingly, the application that is currently before the Court is essentially one to allow the Accused to travel to New Zealand in the near future. What is proposed is that he be allowed to travel to New Zealand later today and to return on Tuesday of next week. Initially, the application was that, unless he is required for cross examination in the Supreme Court of Queensland next Wednesday, he be allowed to return on Thursday of next week. 19 I have raised with Mr Walsh a number of issues concerning the significance of the Queensland proceedings to the Accused. It seems to me that prudent legal representatives, acting for Prepaid on the summary judgment application, would ensure that all deponents were at Court on Wednesday as against the possibility that there may be a late application to cross examine any of them, given that the Rules are not currently being complied with in respect of service of affidavits. 20 Further, I have been told that the Provisional Liquidator of Prescience Communications Limited ("Prescience"), a company to which reference is made in my judgment of 2 March 2007, has indicated orally that Prescience has no interest in asserting a claim on the funds which are the subject of the Prepaid application next Wednesday, but has asserted in writing, an intention to make a claim on the funds. The position seems, to say the least, somewhat fluid in that respect. 21 I would have thought that the primary focus of the Accused's attention, between now and next Wednesday, ought be on dealing with issues (both expected and unexpected) that may arise in advance of the Prepaid application, so that the risk of any adjournment of that application is minimised. It is not, of course, for me to give advice to the Accused or to Ms Clark as to how they conduct their affairs. However, it will be apparent from what I said on 2 March 2007 and again today, that this Court, the community, the Crown, and the Accused, have a substantial interest in the early resolution of the Queensland proceedings, to the extent that they have provided a justification for the adjournment of a criminal trial before this Court. 22 For my part, I would have thought that the Accused and Ms Clark would be available in Australia between now and next Wednesday and, in particular, on Monday and Tuesday, to allow any issues raised either by Home Wilkinson Lowry or the Provisional Liquidator of Prescience to be confronted and dealt with by way of instructions and, if need be, evidence. My concern is that if the Accused is in New Zealand for a number of days, even if Ms Clark is there as well, that state of affairs may itself compound and complicate what is already a delayed trial. The adjournment of the trial occurred following a late application. It would be clear that the Court is very concerned to ensure that this trial proceeds. 23 Although the Accused may desire to visit New Zealand and visit Ms Clark (assuming she remains there for the entire period between now and next Tuesday) or other persons, it seems to me that, given the state that has been reached with respect to the Queensland litigation, which is inextricably linked to the commencement of a serious criminal trial in this Court, that the giving of permission for the Accused to travel to New Zealand for several days (for social and personal purposes) is not a step which I will take. 24 To the extent that there is an application to vary the existing bail conditions for that purpose, I decline to vary the bail conditions. I am not satisfied, on the material that has been put before me, that such a variation would be in the interests of the orderly and expeditious commencement of this trial. The application is refused. ********** 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.