Berry v Director of Public Prosecutions (Cth); Phapakdy v Director of Public Prosecutions (Cth)

[2008] NSWCCA 20

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
BERRY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH); PHAPAKDY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2008] NSWCCA 20

FILE NUMBER(S):
2007/3928
2007/3925

HEARING DATE(S):
5 December 2007

JUDGMENT DATE:
13 February 2008

PARTIES:
Simon BERRY - Appellant CCA 2007/3928
Bounthavy PHAPAKDY - Appellant CCA 2007/3925
Director of Public Prosecutions (Cth) - Respondent

JUDGMENT OF:
Basten JA Hidden J Barr J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 06/11/0925, DC 06/11/0924

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
21 August 2007

COUNSEL:
G Brady - Appellant Berry
R Jankowski - Appellant Phapakdy
I Bourke - Respondent

SOLICITORS:
Nyman Gibson Stewart - Appellant Berry
Ryan and Bosscher Lawyers - Appellant Phapakdy
Commonwealth Director of Public Prosecutions - Respondent

CATCHWORDS:

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
[<i>Pellegrino v Director of Public Prosecutions (Cth)</i>] [2007] NSWCCA 17

TEXTS CITED:

DECISION:
Appeals dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/3928
DC 06/11/0925
CCA 2007/3925
DC 06/11/0924

BASTEN JA
HIDDEN J
BARR J

13 February 2008

BERRY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH);
PHAPAKDY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Judgment

1. THE COURT:  On 11 February 2008 the Court handed down judgment in the matter of Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17. At that stage, the Court understood that, although counsel for the present appellants appeared in support of the argument presented for Mr Pellegrino, only Mr Pellegrino had commenced proceedings in the District Court seeking a permanent stay in relation to count 1 on the indictment: [2008] NSWCCA 17 at [2]. The appeal book contained the notice of motion filed on behalf of Mr Pellegrino. No notice of appeal was contained in the appeal book. The Registrar has advised that in fact notices of appeal were filed on behalf of the other two accused, Messrs Berry and Phapakdy, who were affected by counts 3 and 4 in the indictment, those counts alleging that the respective accused were accessories to the offence of Mr Pellegrino identified count 1.

2. It is not necessary to consider the procedural steps by which those appeals came before this Court.  Counsel for each of the appellants was heard.  It was not suggested that any different considerations applied in relation to the circumstances of the appellants Berry and Phapakdy.  Accordingly, their appeals should also be dismissed for the reasons given in the matter of Pellegrino.  The appropriate orders will be made accordingly.

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LAST UPDATED:
13 February 2008