R v Issakidis - [2016] NSWSC 1290

Supreme Court

New South Wales

Medium Neutral Citation: R v Issakidis [2016] NSWSC 1290
Hearing dates: 9 September 2016
Date of orders: 09 September 2016
Decision date: 09 September 2016
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
(1) The accused’s notice of motion filed 7 June 2016 be dismissed.
(2) The proceedings stand over before Harrison J on 14 September 2016 at 9.30am.

Catchwords: CRIMINAL LAW – notice of motion – stay application – accused due to face fourth trial – first trial aborted due to fault of prosecution in not disclosing documents – second trial stayed until costs thrown away by first trial paid – costs paid – second trial aborted – third trial resulted in hung jury – whether fourth trial should be stayed – unfairness from prosecution’s non-disclosure not ongoing – redressed by payment – motion dismissed
Legislation Cited: Crimes Act 1900 (Cth)
Criminal Code 1995 (Cth)
Cases Cited: Dickson v R [2016] NSWCCA 105
Dietrich v R (1992) 177 CLR 292; [1992] HCA 57
R v Anthony James Dickson (No 18) [2015] NSWSC 268.
R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595
R v Michael James Issakidis [2015] NSWSC 834
R v Issakidis [2016] NSWSC 1102
R v Mosely (1992) 28 NSWLR 735
R v Ulman-Naruniec (2003) 143 A Crim R 531; [2003] SASC 437
Category: Procedural and other rulings
Parties: Crown (Commonwealth Prosecutor)
Michael John Issakidis (Accused)
Representation:
Counsel:
Mr M McHugh SC
Mr M Byrne QC (Accused)
Solicitors:
Ms K Purchase (CDPP)
Mr P Shields (Accused)

File Number(s): 2012/128506
Publication restriction: Nil

EX TEMPORE Judgment (revised from transcript)

Following the discharge of the jury at his third trial on 7 June 2016, the accused, Michael John Issakidis, filed a notice of motion seeking an order that any further trial be stayed pending "the further payment of the costs thrown away at the first trial." The hearing of that notice of motion was adjourned pending a determination by the Commonwealth Director of Public Prosecutions (the "CDPP") as to whether she would seek to have the accused tried a fourth time.
Subsequently, the CDPP determined that she would seek to have the accused tried again. Accordingly, the notice of motion was fixed for hearing today with directions made for the service of written submissions in the meantime. The written submissions were of great assistance. Neither party sought to supplement them orally.
To determine Mr Issakidis' application for a stay, it is necessary to describe the background to his previous trials in some detail.

Background

Mr Issakidis faces two charges under the Criminal Code Act 1995 (Cth) (“the Code”), namely, conspiracy to dishonestly cause a loss or a risk of a loss to the Commonwealth, contrary to s 135.4(5) of the Code, and conspiring to deal with property the value of $1 million or more, believing it to be the proceeds of crime contrary to s 400.3(1) of the Code.
As stated, Mr Issakidis has faced a jury three…

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 R v Issakidis

Details

AGLC: R v Issakidis [2016] NSWSC 1290
Case: [2016] NSWSC 1290
Decision Date: 09 September 2016

CaseChat Overview and Summary

In the case of R v Issakidis, the accused faced a significant legal battle involving multiple trials and appeals due to issues with the disclosure of documents by the prosecution. The dispute centred on whether a fourth trial should proceed, given the history of aborted trials. The matter was heard in the Supreme Court of Victoria. The accused had already undergone three trials, each ending in unsatisfactory outcomes, including an aborted trial due to the prosecution's failure to disclose documents and a hung jury in the third trial. The court was tasked with deciding whether to stay the fourth trial, considering the unfairness caused by the prosecution's non-disclosure, which had already been redressed by the payment of costs from previous trials.

The legal issues before the court involved the principles of fairness and the right to a trial without undue delay, as well as the extent to which the accused could be prejudiced by the prosecution's non-disclosure. The court considered whether the unfairness stemming from the prosecution's non-disclosure was ongoing or if it had been sufficiently remedied by the payment of costs. The accused argued that the repeated trials and the necessity of a fourth trial constituted an unjustifiable delay and further unfair treatment. Conversely, the prosecution contended that the payment of costs had addressed the unfairness, and there was no ongoing prejudice that warranted a stay.

The court ultimately dismissed the stay application. It reasoned that the unfairness from the prosecution's non-disclosure had been redressed by the payment of costs, and there was no ongoing prejudice that would make a fourth trial unfair. The court held that the accused's right to a fair trial did not outweigh the public interest in bringing the accused's case to a final resolution. The court also noted that the accused had not demonstrated that a fourth trial would be substantially unfair, considering the measures already taken to address past issues.

No further orders were made by the court, affirming that the fourth trial should proceed as scheduled. The dismissal of the stay application meant that the accused would have to face a fourth trial, with the court's decision underscoring the importance of resolving the case in a timely manner, despite the past procedural difficulties.

Orders