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Court of Criminal Appeal 31 October 2016

Romolo v R

[2016] NSWCCA 240

Drugs
CRIMINAL LAW APPEAL APPEAL DISMISSED

Citation: Romolo v R [2016] NSWCCA 240
Court: Court of Criminal Appeal, NSW
Date: 31 October 2016
Judges: Hoeben CJ at CL, Button J, N Adams J

Background

The appellant was charged with importing a commercial quantity of methamphetamine by joint commission, contrary to the Criminal Code Act 1995 (Cth). The Crown's case relied substantially on the appellant having repeatedly contacted a courier company about a shipment of boxes containing nearly six kilograms of the drug. The appellant's proposed defence was that he had been misled into believing he was involved in importing steroids, not a prohibited drug, which would have negated the mental element of the offence.

On the morning the trial was listed to commence, the appellant's mother's car was found to have been shot at in a secure car park. A note left near her home read: "IF YOU TALK OR DROP NAMES IN COURT THIS WILL BE COMING FOR YOUR FAMILY," accompanied by two live rounds of ammunition.

As a direct result, the appellant refused to name the man he claimed had recruited him at a Sydney gym, including in evidence, to his solicitor, or in support of a police protection application. He applied for a permanent stay of the trial in the District Court on the basis that he could not receive a fair trial. Judge Lakatos SC refused the stay, and the appellant appealed to the Court of Criminal Appeal.

  • Whether the primary judge failed to have regard to the prejudice caused to the appellant in circumstances where he could not name a key person in his defence case
  • Whether the primary judge erred in finding that giving evidence in a closed court would allow the appellant to put his substantive defence before the jury
  • Whether the primary judge erred in refusing to grant a permanent stay of the proceedings

Decision

Button J (with whom Hoeben CJ at CL and N Adams J agreed) affirmed the refusal of the permanent stay and dismissed the appeal. His Honour began by restating foundational principles: a permanent stay is an extraordinary remedy of last resort, and the mere fact that a trial will be more difficult or uncomfortable for an accused does not, without more, render it unfair. The public interest in prosecuting serious criminal charges is a weighty counterbalance.

On Ground 1, Button J found that the primary judge had plainly turned his mind to the prejudice the appellant faced. The primary judge had accepted the genuineness of the threat as a finding of fact and had engaged with the defence case in detail before concluding that it could still be meaningfully presented. The Court of Criminal Appeal found no error in that reasoning.

On Ground 2, the Court rejected the argument that the primary judge had misunderstood the function of a closed court. Button J held that the primary judge's reasoning was objectively correct: if the appellant gave evidence in a closed court describing the meeting about steroids without naming the other person, that would place the substantive mistaken-belief defence before the jury. The primary judge had also acknowledged that this approach would not deliver everything the appellant might wish, but that it was sufficient to put the defence case.

On Ground 3, which focused on the outcome rather than the reasoning, Button J stated that he would have regarded any other outcome as wrong and liable to correction on appeal. No error in the result at first instance was established. The Court also noted several further ameliorative options that remained available, including the Crown's indication it would not press the appellant in cross-examination to name anyone.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A permanent stay of serious criminal proceedings is a remedy of last resort, and the fact that an accused faces real and accepted threats to himself and his family does not automatically render a fair trial impossible.
  • Where a primary judge expressly accepts the genuineness of a threat and considers the impact on the defence case before exercising discretion, a Court of Criminal Appeal applying the House v The King standard will not readily identify error in that balancing exercise.
  • The Court of Criminal Appeal confirmed that procedural mechanisms, such as giving evidence in a closed court, naming a witness by pseudonym, or the Crown declining to press certain questions in cross-examination, are relevant to whether a fair trial remains achievable and should be weighed against granting a stay.
  • In dismissing the appeal, the Court emphasised the strong public interest in the prosecution of serious criminal charges, which must be weighed against any prejudice to an accused in the presentation of a defence.
  • No error was established in the primary judge's finding that the appellant's substantive mistaken-belief defence could still be placed before the jury even without naming the alleged recruiter, provided the appellant chose to give evidence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Code Act 1995 (Cth), Schedule, ss 11.2A(1) and 307.1

Cases
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v R [2015] NSWCCA 330
- TS v The Queen [2014] NSWCCA 174