R (Cth) v Petroulias (No. 11) [2007] NSWSC 533

New South Wales Supreme Court

CITATION : R (Cth) v Petroulias (No. 11) [2007] NSWSC 533

HEARING DATE(S) : 1 March 2007 and 2 March 2007

JUDGMENT DATE : 2 March 2007

JUDGMENT OF : Johnson J at 1

EX TEMPORE JUDGMENT DATE : 2 March 2007

DECISION : Application by Accused for adjournment of the trial is allowed - trial adjourned to 19 March 2007

CATCHWORDS : CRIMINAL LAW - application to adjourn commencement of criminal trial - adjournment to permit accused to secure funds for private legal representation - adjournment granted

LEGISLATION CITED : Criminal Procedure Act 1986 Trust Accounts Act 1973 (Qld)

CASES CITED : Dietrich v The Queen (1992) 177 CLR 292 R v Yuill (Barr AJ, unreported, 1 November 1995, BC9501744)

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

2 March 2007

2002/93 Regina (Commonwealth) v Nikytas Nicholas Petroulias (No. 11)

JUDGMENT (on application by Accused for adjournment of the trial - see PT968)

1 JOHNSON J: This is an application by the Accused for adjournment of a trial which is presently fixed to commence before a jury next Monday, 5 March 2007. 2 I commenced the hearing of pre-trial applications with respect to this matter in July 2006. The trial date of 5 March 2007 was identified for the first time on 21 November 2006 (PT560). It was confirmed on 28 November 2006 that there would be a jury empanelled not before 5 March 2007 (PT572). Accordingly, the trial date has been known for a significant period of time. 3 The basis of the application is that monies are required by the Accused to fund his defence and that it is expected that those funds will become available at a point of time in the near future. 4 As part of the application, it is contended for the Accused that he has sought to make appropriate arrangements with respect to the funding of his defence, but that due to what is said to be a mistaken transfer of monies, the sum involved has ended up in the trust account of a firm of solicitors in Brisbane, and that there is current controversy as to whether those monies will be repaid by that firm of solicitors. 5 The present application is not brought in accordance with the principles in Dietrich v The Queen (1992) 177 CLR 292 at 315 whereby the Accused claims that he is indigent and, through no fault of his own, is unable to obtain or maintain legal representation for his trial. Rather, the application is of the type identified by Barr AJ in R v Yuill (unreported, 1 November 1995, BC9501744) at page 23, where the Accused makes application for an adjournment of the trial to allow steps to be taken to ensure that monies are available to fund his defence. 6 Broad discretionary considerations apply on an adjournment application. Section 40 Criminal Procedure Act 1986 is the statutory source of the present application for an adjournment. 7 An affidavit has been read in support of the application, being an affidavit of Edmond William Coady sworn 1 March 2007 which is accompanied by a substantial number of annexures. Mr Coady has given evidence on the application. 8 Given the time of the day and the urgency of this application, it is neither necessary nor desirable to recount in any detail the picture revealed by the evidence. 9 It is sufficient to note that the Accused is said, prior to November 1996, to have made arrangements through a litigation funder in Malaysia for a sum of $785,000.00 to be available to fund his defence of this trial. In stating that proposition there is a risk of oversimplifying the position, because the documentary evidence points to a rather elaborate range of corporations and individuals who have played a part in that arrangement. Indeed, the sum of $785,000.00, it is said, is the money of Prepaid Professional Administration Limited ("Prepaid"). There is before the Court, in the form of Exhibit A, a document signed by officers of Prepaid which states that the effect of the litigation funding arrangements reached in Malaysia is to obtain funds to apply for the defence of the present Accused. 10 It appears that, in November 2006, a transfer of funds was made. It is alleged that, as a result of a mistake, the sum of money of $785,000.00 was paid into the trust account of Home Wilkinson Lowry, a Brisbane firm of solicitors. Thereafter, it appears that Home Wilkinson Lowry maintains an entitlement to a sum of between $190,000.00 and $250,000.00 by way of outstanding fees. The solicitors seek to claim that sum against the sum which has been transferred into their account. 11 It appears that Home Wilkinson Lowry have refused to refund to Prepaid the balance, being the difference between $250,000.00 and $785,000.00. As I understand it, the total amount remains sitting in the trust account of that firm. 12 The documents in evidence on the application point to a controversy about this sum in affidavits filed in proceedings in the Supreme Court of Queensland involving a company Prescience Communications Limited ("Prescience"). 13 In separate proceedings in the Supreme Court of Queensland, Prepaid filed a Statement of Claim on 27 February 2007 nominating Home Wilkinson Lowry as the Defendant. According to the Statement of Claim, the pleading was settled by Mr A Morris QC and Mr AC Barlow of counsel. The Statement of Claim asserts that there has been a payment made under a mistake of fact to Home Wilkinson Lowry and that that firm has been unjustly enriched to the extent of $785,000.00. Demand has been made for the return of that sum, but the sum has not been repaid. 14 On the face of the Statement of Claim filed three days ago, the Defendant has 28 days to file a Defence. That is the extent of the litigious activity to date with respect to this sum which the Accused submits is critical to his ability to fund his defence for this trial. 15 The affidavit of Mr Coady, to which I have referred, states, in paragraphs 34 and 35, that he had been advised by Mr Andrews, a Queensland solicitor acting for Prepaid, that a period of 28 days was required to file a Defence and thereafter it would be possible to commence proceedings as an urgent action seeking summary judgment. Mr Coady says, "based on my research and the opinion of senior counsel in Queensland" (Mr Morris QC), he believes that the Plaintiff in those proceedings (Prepaid) "has good chances of success in the action". 16 Mr Coady also states (in paragraph 37) that, should the Accused not be able to pay the funds from Queensland into his trust account on or before Monday 5 March 2007, he (Mr Coady) will not be able to continue his retainer of counsel nor continue to represent the Accused. 17 Earlier today, I raised with Mr Sutherland SC, for the Accused, the question whether, if the present adjournment application is refused, it would be a case of counsel returning the brief or their instructions being withdrawn. I was informed it was the latter. I infer that, in the event that the application for adjournment is refused, the legal representatives for the Accused would no longer represent him. 18 The ethical considerations arising in this context, where a serious criminal trial is imminent, and where counsel is foreshadowing the cessation of their appearance, is not a matter upon which I have taken detailed submissions. It is sufficient to say that I am presented with the position where, if this application is refused, counsel and solicitors would withdraw from the case. The ethical consequences of that step would be a matter for them. 19 If that event occurred, and the adjournment application was refused, then the prospect would be that the Accused would appear in person on Monday morning. In the absence of any other application, or if a further application by him was refused, the trial would proceed with him unrepresented. 20 The Crown submits that the Accused is a legal practitioner with considerable expertise in the field which is the subject of this litigation, and with deep knowledge of it. 21 As is apparent from my earlier judgments on pre-trial applications, this litigation has extended far and wide in the Courts of New South Wales, and there has been an earlier trial which led to a hung jury. 22 After lunch today, Mr Coady indicated, following further telephone discussions with Mr Andrews (who it seems had spoken, in turn, with counsel in Queensland), that a second line of attack was intended with respect to the sum of $785,000.00. It was said that a notice would issue under the Trust Accounts Act 1973 (Qld) and that this should trigger a process which ought see the monies paid into Court, thereby providing an opportunity for an expeditious determination of any disputed claim on the monies. It was said that notices to commence this process would issue, but clearly no litigation or proceedings have been commenced in Queensland so far to that end. 23 I am puzzled by the fact that senior and junior counsel in Queensland, who no doubt were called upon to advise Prepaid on the best litigious route to deal with the present problem (and whom I infer, would be well aware of the Accused's imminent trial in this State) would not, as a matter of first resort, have chosen a claim under the Trust Accounts Act 1973 (Qld). There is no evidence to explain how such a claim has now arisen, as a form of afterthought. Nevertheless, it is now said that this is going to be done. 24 Mr Walsh, counsel for the Accused, submits that the Court's discretion ought be exercised in favour of an adjournment, that a determinate period of adjournment is sought, that the interests of justice, the interests of the Crown, the witnesses and the Accused having been taken into account, the balance should come down on the side of an adjournment. Of course, an underlying factor in the defence application is Mr Coady's confident expectation of a speedy and favourable resolution of this matter. Whether that confidence is justified is, of course, a matter which will be tested in future days. 25 The Crown opposes the application for an adjournment. The Crown submits that the prospect of recovery of the funds is so uncertain that no adjournment should be allowed on that basis. It is submitted that the affidavits already in existence in the Prescience litigation point to the existence of significant factual disputes, and that it is optimistic in the extreme to think that there would be a speedy and favourable resolution of this matter in a manner which would see the funds being available for this Accused for this trial. 26 The Crown points to the fact that there appears to be the prospect of competing parties seeking the funds, with the prospect of the Provisional Liquidator of Prescience claiming an interest. There appears to be a question whether Prepaid is a creditor of Prescience, so that the Provisional Liquidator of Prescience will become involved in this way. 27 I have carefully considered the arguments that have been raised. 28 An application for adjournment made, on this type of ground and at this stage proximate to the trial, must be considered carefully. The Accused says that he wishes to be represented by counsel and solicitors who have appeared for him now, in the case of the counsel for some months and in the case of the solicitors, for some years. The prospect of a trial with the Accused unrepresented, although a hypothetical prospect at this stage, is still a prospect which I can consider, and such a process has well known disadvantages to the criminal justice system. 29 On balance, I am satisfied that an adjournment ought to be allowed. it will not, however, be an adjournment for eight weeks, or five weeks, or four weeks. 30 It seems to me that the predictions of Mr Coady, and the identification of steps that will be taken, ought to be tested by the allowance of some limited time for those things to be done and for Mr Coady's hopes to be measured against actual events. 31 I am prepared to adjourn the trial for a two-week period. I do that on the basis that the matter will be listed before me for directions in one week's time, and I expect there to be proper evidence before me then of steps which have been taken by or on behalf of the Accused, or those acting in his interests in Queensland, with respect to the recovery of these funds. If, in one week's time, it seems to me that there is an uncertain and complicated future likely with respect to this issue, so that the resolution of the claim on these funds will take some considerable time, then I am not likely to be persuaded that any further adjournment of the trial should take place. I will, of course, hear any submissions or application made, but there will need to be evidence of action taken, and not mere expressions of hope and expectation. 32 If it appears to be the position next Friday, that the Queensland dispute will be resolved prior to 19 March 2007, it will be my expectation that Mr Sutherland SC and Mr Walsh, Mr Coady and Mr Lambros will be in a position for this trial to commence on 19 March 2007. 33 If it is the position that the issue is unresolved, then the Crown's submission that this trial should proceed, whether the Accused is represented or not, will attract considerable weight given the history of this matter. I will, of course, hear any further submissions or any application that may be made, but the trial will not be delayed indefinitely. 34 Accordingly, I vacate the trial date listed for 5 March 2007. 35 I stand the matter over for trial to commence on Monday, 19 March 2007. 36 I direct that this matter be listed before me at 10.00 am next Friday, 9 March 2007, on which occasion I will assess the action taken by and on behalf of the Accused with respect to the matters ventilated in this application and in my reasons. 37 I direct that the Accused serve upon the Crown, and provide to my Associate, by 4 pm on Thursday 8 March 2007 any affidavit or other documentary material upon which he will seek to rely at the directions hearing listed for next Friday. 38 The Accused is required to attend next Friday. Bail is continued on the current conditions until 10.00 am 9 March 2007. **********