Commonwealth DPP v Germakian

[2006] NSWCA 275

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Commonwealth DPP v Germakian [2006]  NSWCA 275

FILE NUMBER(S):
40615/06

HEARING DATE(S):               4 October 2006

DECISION DATE:     04/10/2006

PARTIES:
Commonwealth Director of Public Prosecutions
Mendoza Hahn Germakian

JUDGMENT OF:       Ipp JA Tobias JA Basten JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          

LOWER COURT JUDICIAL OFFICER:     Murrell DCJ

COUNSEL:
A: S M McNaughton
R: T M Healey

SOLICITORS:
A: Commonwealth DPP, Sydney
R: Eakin Lawyers, North Sydney

CATCHWORDS:
CRIMINAL LAW – drug offences – importation – guilty verdict  – bail extended until sentencing hearing – appeal against grant of bail – BAIL APPLICATION – Crown appeal – principles

LEGISLATION CITED:
Bail Act 1978
Crimes and Courts Legislation Amendment Act 2005
Customs Act 1901
Judiciary Act 1903
Supreme Court Act 1970

DECISION:
Conditional bail granted by Judge Murrell on 22 September 2006 be revoked

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40615/06

IPP JA
TOBIAS JA
BASTEN JA

Wednesday 4 October 2006

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v MENDOZA HAHN GERMAKIAN

Judgment

1. IPP JA:  I agree with Tobias JA.

2. TOBIAS JA: On 18 May 2005 the respondent was charged pursuant to s233B(1)(a)(iii) of the Customs Act 1901 with importing into Australia a commercial quantity of cocaine. On that date the respondent was taken into custody at the International Terminal at Sydney Airport having arrived from Los Angeles earlier that day. He was travelling on an Australian passport and is an Australian citizen. He had no check in baggage on the flight, but had taken on board a black suit bag and a backpack and he admitted to Customs Officers that he had packed them himself and was aware of their contents.

3. On 3 August 2005 the respondent was committed to Sydney District Court for trial. On that day he applied for bail which was refused. On 4 August 2005 he made an application to the Supreme Court for bail which was opposed by the Crown but granted by Hulme J subject to conditions. Pursuant to s45 of the Bail Act 1978 (the Act), the Crown sought review of that decision which was heard by Hall J who, on 12 August 2005, affirmed the decision to grant bail made on 4 August 2005 subject to the conditions which had then been imposed.

4. The respondent’s first trial in respect of the subject charge commenced on 3 April 2006.  He pleaded not guilty.  On 11 April 2006 the trial was aborted because the jury were unable to agree on a verdict.  The trial judge, Judge Taylor, continued the respondent’s bail on the existing conditions.

5. The matter was listed for a second trial to commence on 18 September 2006. Again, the respondent pleaded not guilty to the charge contained in the indictment. The trial proceeded before her Honour Judge Murrell until 22 September 2006 when the jury brought in a guilty verdict. The matter was then adjourned by her Honour to 17 November 2006 for a sentencing hearing.…