Petroulias v R [2010] NSWCCA 95

New South Wales Court of Criminal Appeal

CITATION: Petroulias v R [2010] NSWCCA 95

HEARING DATE(S): 05/05/10

JUDGMENT DATE: 12 May 2010

JUDGMENT OF: Hodgson JA at 1; Rothman J at 2; Barr AJ at 3

DECISION: Bail refused.

CATCHWORDS: Bail pending appeal to Court of Criminal Appeal - review of refusal of bail by Supreme Court - whether special or exceptional circumstances justifying grant of bail.

Bail Act 1978, ss 30, 30AA, 32(1)(b)(ii) , 45(1)(b), 48(3). LEGISLATION CITED: Crimes Act 1914, ss 70, 73, 29D Criminal Appeal Rules, r 23C Jury Act 1977, s 68A .

CATEGORY: Principal judgment

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

PARTIES: Nikytas Nicholas Petroulias (applicant) Regina (respondent)

FILE NUMBER(S): CCA 2002/2371011

COUNSEL: Applicant in person Respondent- P Hastings QC

SOLICITORS: Respondent-Commonwealth Director of Public Prosecutions.

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2002/2371

LOWER COURT JUDICIAL OFFICER: Fullerton J

LOWER COURT DATE OF DECISION: 23/03/10

IN THE COURT OF CRIMINAL APPEAL 2002/2371011

HODGSON JA ROTHMAN J BARR AJ

WEDNESDAY, 12 MAY 2010 R v NIKYTAS NICHOLAS PETROULIAS Judgment 1 HODGSON JA: I agree with Barr AJ. 2 ROTHMAN J: I agree with Barr AJ. 3 BARR AJ: Nikytas Nicholas Petroulias has applied for a review of a bail determination pending the determination by this Court of his appeal against convictions and sentences entered in the Supreme Court. 4 On 18 December 2007 a jury found the applicant guilty of offences under s73 of the Commonwealth Crimes Act 1914, namely of agreeing to receive a benefit on an understanding that the exercise by him of his duty as a Commonwealth officer would be affected and under s 70 of the same Act of publishing to a person to whom he was not authorised to publish documents which came into his possession by virtue of his being a Commonwealth officer and it was his duty not to disclose. The applicant stood trial at the same time on a more serious charge, that of defrauding of the Commonwealth contrary to s 29D of the same Act, but the jury were unable to agree. The Commonwealth Director of Public Prosecutions later told the trial court that it did not intend to put the applicant up for trial again on that charge. 5 Johnson J, the trial and sentencing Judge, convicted the applicant and sentenced him to imprisonment for one year and nine months and one year and eight months respectively. His Honour partly accumulated the sentences and the result was a total head sentence of three years and two months' imprisonment. His Honour fixed a single non-parole period of two years. That non-parole period took effect on the day on which sentence was announced, 20 June 2008. As a result, the applicant will become eligible for release to parole on 19 June 2010, a day about six weeks from today. 6 On 20 August 2008 the applicant filed in this Court a Notice of Intention to Appeal against the convictions or of Intention to Apply for Leave to Appeal against the sentences. Since the time within which such documents should have been filed have then expired he filed, as was appropriate, a Notice of Application for an Extension of Time within which to file such Notices. The Registrar extended time as requested. 7 The filing of such documents did not initiate an appeal, however. That could be achieved only by the filing of a Notice of Appeal against conviction or a Notice of Application for Leave to Appeal against sentence accompanied, unless the Court or the Registrar should grant leave, by a Statement of the Grounds for Appeal and written submissions in support of the appeal together with certain other documents: see Criminal Appeal Rules, r 23C. 8 Although the Registrar extended time for the filing of such documents on a number of occasions, the applicant did not comply with the requirements of r 23C until 18 January 2010, a day almost nineteen months after the commencement of the sentences and slightly more than five months before the anticipated expiry of the non-parole period. 9 At the request of those representing the applicant, the appeal was expedited and fixed for hearing on 16 and 17 June 2010. The applicant applied to the Bails Judge for a grant of bail pending the determination of his appeal. On 29 March 2010 Fullerton J refused bail. The application before this Court is for a review of her Honour's determination. 10 The power of this Court generally to grant bail to persons who are accused of offences which are or have been or will be before the court for determination derives from s 30 Bail Act 1978.Relevantly, there is power where an appeal is pending in this Court: s 30(a). 11 The power of this Court to review any bail decision of the Supreme Court derives from s 45(1)(b) of the Bail Act. Relevantly, the section provides as follows- "(1) Subject to this Division: (a) … (b) the Court of Criminal Appeal may review any decision in relation to bail of the …. Supreme Court (however constituted) ." 12 There is a general limitation on the power of this Court to grant bail in certain circumstances, however. Section 30AA of the Bail Act provides as follows- "Notwithstanding anything in this Act, if: (a) an appeal is pending in the Court of Criminal Appeal against: (i) a conviction on indictment, or (ii) a sentence passed on conviction on indictment, or (b) an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a), bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail." 13 A review under s 45(1)(b) is a hearing de novo and the decision of the reviewing Court is not based on any determination whether the Court whose order comes under review made any error: R v Pakis (1981) 3 A Crim R 132; R v Hamill (1986) 25 A Crim R 316. See also s 48(3). 14 The applicant relied on an extensive body of evidence. His own affidavit of 9 January 2010 of 15 pages incorporated about 370 pages of exhibits. He read in addition his further affidavit of 27 February 2010 and the affidavits of Johny Golubovic of 27 February 2010, Alexandra Low of 3 February 2010 and Bill Lambros of 23 March 2010. He tendered two letters written by a psychiatrist, Dr Ben Teoh. That of 9 February 2010 became Exhibit 1 and that of 23 March 2010 Exhibit 2. He put before the Court his grounds of appeal for the forthcoming appeal and the written submissions of Mr Sutherland SC filed in the appeal. The applicant made written and oral submissions. It would not be possible in a judgment of any reasonable length to refer to much of the evidence or material in detail and for the most part I shall refer to the evidence compendiously. 15 The matters put forward by the applicant may be summarised thus: 1. The short period of bail sought and the imminence of the appeal to this Court. 2. The conditions the applicant is experiencing in custody and his consequent inability to prepare for the appeal. 3. His need to prepare for other imminent court hearings and his inability to do so under existing conditions. 4. His deteriorating health. 5. His prospects of success on appeal against conviction and sentence.