Citation: Berry v Director of Public Prosecutions (Cth); Phapakdy v Director of Public Prosecutions (Cth) [2008] NSWCCA 20
Court: New South Wales Court of Criminal Appeal
Date: 13 February 2008
Judge(s): Basten JA, Hidden J, Barr J
Background
Two appellants, Berry and Phapakdy, were charged in the District Court as accessories to a Commonwealth offence allegedly committed by a co-accused, Pellegrino. The primary offence was the subject of count 1 on the indictment, while counts 3 and 4 respectively named Berry and Phapakdy as accessories to that offence.
All three accused had separately sought a permanent stay of proceedings in the District Court before Sorby DCJ. The primary stay application was brought by Pellegrino, and Berry and Phapakdy were associated with that application. The District Court declined to grant the stay, and appeals followed.
The matter came before the Court of Criminal Appeal alongside a parallel appeal by Pellegrino. Counsel for Berry and Phapakdy had appeared and made submissions in support of Pellegrino's argument at the joint hearing on 5 December 2007.
Legal Issues
- Whether the District Court erred in refusing to grant a permanent stay of proceedings in relation to the accessory charges against Berry and Phapakdy
- Whether any different legal considerations applied to the circumstances of the accessories, as distinct from those of the principal offender Pellegrino
Decision
The Court of Criminal Appeal had delivered its judgment in the companion matter of Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17 on 11 February 2008, two days before handing down this decision. In that matter, the Court dismissed Pellegrino's appeal against the refusal of a permanent stay.
At the time of the Pellegrino judgment, the Court was unaware that Berry and Phapakdy had each filed notices of appeal. Their notices of appeal had not been included in the appeal book, and the Court understood that only Pellegrino had commenced formal proceedings. The Registrar subsequently advised the Court that the notices of appeal had in fact been filed.
The Court confirmed that no different considerations applied to the circumstances of Berry and Phapakdy compared to those considered in Pellegrino. Accordingly, the Court dismissed their appeals for the same reasons given in the Pellegrino judgment, without repeating that analysis.
Orders Made
- Both appeals dismissed.
Key Takeaways
- In dismissing the companion appeals, the Court of Criminal Appeal applied the reasoning from Pellegrino v DPP (Cth) [2008] NSWCCA 17 without modification, as no distinct legal arguments were advanced on behalf of the accessory appellants.
- Where co-accused accessories raise no separate or distinguishing arguments from those already resolved in a principal offender's appeal, the accessory appeals will be disposed of by reference to the lead judgment.
- A procedural irregularity in the appeal books (the omission of the notices of appeal for Berry and Phapakdy) did not prevent the Court from hearing and determining those appeals once the oversight was identified.
- The Court confirmed that counsel for the appellants had been heard, lending procedural regularity to the outcome despite the earlier administrative confusion.
- Permanent stay applications in criminal proceedings face a high threshold, consistent with the approach confirmed in the Pellegrino matter that preceded this decision.
Legislation and Cases Referenced
Cases:
- Pellegrino v Director of Public Prosecutions (Cth) [2007] NSWCCA 17 (also cited as [2008] NSWCCA 17 in the judgment text)
Legislation:
No specific legislation is identified in the provided text.