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Court of Criminal Appeal 20 August 2007

Nikolaidis v R

[2007] NSWCCA 254

Fraud & dishonesty
CRIMINAL LAW APPEAL TRIAL PROCEEDING PRIOR APPLICATIONS ABANDONED WHETHER LEAVE SHOULD BE REFUSED.

Citation: Nikolaidis v R [2007] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 20 August 2007
Judge(s): Howie J, Santow JA, Hidden J

Background

The applicant faced a District Court charge of making a false instrument, specifically a letter allegedly fabricated between October 1996 and February 1998 with the intention of inducing another person to accept it as genuine. The prosecution proceeded by way of ex officio indictment after a magistrate had earlier discharged the applicant at committal, finding no reasonable prospect of conviction. By the time of this application, the matter had already been through two aborted trials: one where a juror could not continue, causing the jury to be discharged before verdict, and one where the jury was unable to reach a unanimous verdict.

A key piece of prosecution evidence was a document referred to as "Q1," the alleged false instrument itself. The applicant contended that prior examinations of Q1 had compromised the document's reliability for further forensic testing, causing significant prejudice to the defence.

The District Court judge (Knox DCJ) refused an application for a permanent stay of proceedings and immediately empanelled a jury to commence the fourth trial. The applicant sought leave to appeal that refusal to the Court of Criminal Appeal. Notably, an earlier application for leave to appeal had already been abandoned by the applicant on the morning it was listed for hearing, at which point the Court had been prepared to hear it.

  • Whether leave to appeal should be granted against the District Court's refusal to permanently stay the proceedings
  • Whether the prolonged history of the prosecution, the financial and personal costs to the applicant, and the alleged weakness of the prosecution case amounted to an abuse of process by oppression
  • Whether alleged forensic prejudice arising from the condition of document Q1 justified a permanent stay
  • Whether the advanced state of the trial and the applicant's prior abandonment of an earlier application were relevant to the exercise of the Court's discretion to grant leave

Decision

The Court of Criminal Appeal refused leave to appeal, with all three judges agreeing. Howie J delivered the principal judgment and identified several reasons why granting leave was inappropriate at this stage.

The Court placed significant weight on the procedural history before it. The applicant had abandoned a prior application for leave on the very morning the Court was prepared to hear it, at a much earlier stage of the trial. By the time of this second application, the trial had been running for approximately two weeks, the applicant was already giving evidence in the defence case, and at least one further defence witness was yet to be called. No application had been made to Knox DCJ to stay or adjourn the trial while the present application was argued, creating a situation where parallel and inconsistent cases were effectively being run before the trial judge and the appellate court simultaneously. The Court regarded this as unacceptable.

On the substance of the alleged prejudice arising from document Q1, Howie J noted that he was aware of no Court of Criminal Appeal decision that had granted a stay based on loss of evidence, delay, or an accused's inability to conduct forensic testing on an exhibit. The Court observed that such prejudice is generally capable of being addressed by appropriate judicial directions to the jury at trial, instructing jurors to take any such prejudice into account when assessing whether the prosecution has proved its case beyond reasonable doubt. This was therefore a matter better considered after trial, if necessary, rather than before it.

Howie J also noted that, despite submissions before the Court of Criminal Appeal asserting deficiencies in the prosecution evidence, no application had been made at trial at the close of the prosecution case for the matter to be withdrawn from the jury. The Court found nothing in the grounds of appeal that required it to intervene to ensure the applicant received a fair trial before Knox DCJ, and concluded that refusing leave at this stage did not give rise to sufficient prejudice to warrant hearing the application on its merits.

Orders Made

  • Leave to appeal is refused.

Key Takeaways

  • Refusing leave to appeal against a permanent stay application, the Court of Criminal Appeal gave substantial weight to the applicant's prior abandonment of an earlier leave application that the Court had been ready to hear, treating that history as a material factor against granting a further opportunity.
  • Where a criminal trial has significantly advanced, an appellate court will be reluctant to intervene on an interlocutory application, particularly where no steps were taken to stay the trial pending resolution of the appellate application.
  • Running inconsistent arguments before a trial court and an appellate court at the same time, without seeking an adjournment or stay of the trial, is a course the Court characterised as unacceptable.
  • Alleged forensic prejudice arising from the degradation or prior examination of an exhibit is not, of itself, a recognised basis for a permanent stay in New South Wales; such prejudice is generally addressed through appropriate jury directions at trial.
  • No error in the District Court's refusal to permanently stay proceedings was established where the grounds relied upon, including oppression, prosecutorial conduct, and evidentiary prejudice, could be adequately managed within the trial process itself.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment text or metadata provided.