Barakat v The Queen - [2017] NSWCCA 147

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Barakat v R [2017] NSWCCA 147
Hearing dates: 19 June 2017
Date of orders: 21 June 2017
Decision date: 23 June 2017
Before: Hoeben CJ at CL at [1];
R A Hulme J at [2];
Wilson J at [56]
Decision:
Leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act be refused

Catchwords: CRIMINAL LAW – appeal by accused under s 5F(3) Criminal Appeal Act 1912 against refusal of a permanent stay – allegations of irregular and illegal conduct relating to a controlled operation – suggestion that earlier payments made to the informant tainted the investigation and prosecution of drug transactions the applicant was involved in – grounds of appeal unclear – no House v The King error identified – applicant merely sought to re-argue the issue de novo – appeal dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW) ss 5F(3), 5F(5)
Criminal Appeal Rules r 5B
Evidence Act 1995 (NSW) s 138
Law Enforcement (Controlled Operations) Act 1997 (NSW) s 6
Cases Cited: House v The King [1936] HCA 40; 55 CLR 499
Jago v The District Court New South Wales [1989] HCA 46; 168 CLR 23
R v Ladocki [2004] NSWCCA 336
Ridgeway v The Queen [1995] HCA 66; 184 CLR 19
The Queen v Glennon [1992] HCA 16; 173 CLR 592
TS v R [2014] NSWCCA 174
Walton v Gardiner [1993] HCA 77; 177 CLR 378
Category: Principal judgment
Parties: Nadar Barakat (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr R Webb (Applicant)
Ms M Cinque SC (Crown)
Solicitors:
Macquarie Lawyers Burwood
Solicitor for Public Prosecutions

File Number(s): 2010/408341
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

7 April 2017

Before:

Toner SC DCJ

File Number(s):

2010/408341

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.
R A HULME J: On Monday 19 June 2017 this Court heard an application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW). On Wednesday 21 June the Court made an order that leave to appeal was refused. The following are my reasons for joining in the making of that order.

Background

On 7 April 2017, his Honour Judge Toner SC refused an application by Nadar Barakat ("the applicant”) for a permanent stay of his trial that is due to commence in the District Court at Sydney next Monday (26 June 2017).
On 27 April 2017, Mr Barakat filed a Notice of Application for Leave to Appeal Against Interlocutory Judgment or Order pursuant to s 5F(3) of the Criminal Appeal Act. The notice indicated: "grounds [of appeal] to be filed in due course".
An application for an extension of time was also filed on 27 April 2017. Such an extension is necessary as r 5B of the Criminal Appeal Rules requires proceedings under s 5F(3) to be instituted within 14 days of the date of the judgment or order in question.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barakat v The Queen

Details

AGLC: Barakat v The Queen [2017] NSWCCA 147
Case: [2017] NSWCCA 147
Decision Date: 23 June 2017

CaseChat Overview and Summary

Barakat was convicted of drug-related offences and appealed against the refusal of a permanent stay of proceedings. The appellant argued that the trial judge erred by not granting a permanent stay due to alleged irregular and illegal conduct relating to a controlled operation, which he claimed tainted the investigation and prosecution. The court was required to determine whether the trial judge erred in not granting a permanent stay of proceedings and whether any alleged irregularities and illegalities were so significant as to warrant such a stay.

The court noted that the grounds of appeal were unclear and did not identify a House v The King error. The court found that the appellant was merely seeking to re-argue the issue de novo and that the trial judge had correctly assessed the evidence and made findings on the credibility of witnesses. The court concluded that the alleged irregularities and illegalities did not reach the threshold of seriousness necessary to warrant a permanent stay of proceedings. Therefore, the appeal was dismissed, and the convictions were upheld.

Orders