Regina v Halmi - [1999] NSWCCA 354

CITATION: REGINA v HALMI [1999] NSWCCA 354

FILE NUMBER(S): CCA 60254/99

HEARING DATE(S): 14 October 1999

JUDGMENT DATE:
14 October 1999

PARTIES :

The Crown
Nicolae Halmi (Respondent)

JUDGMENT OF: Newman J at 1; Studdert J at 32; Hulme J at 33

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/3245

LOWER COURT JUDICIAL OFFICER: Moore DCJ

COUNSEL: R A Hulme (Crown)
S R Norrish QC (Respondent)

SOLICITORS: S E O'Connor (Crown)
Andrews (Respondent)

CATCHWORDS: Crown appeal; S 5F of Court of Criminal Appeal Act; interlocutory orders permanently staying proceedings on an indictment; allegations relating to co-accused; miscarriage of discretion.

ACTS CITED: Court of Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

CASES CITED:
Barton v The Queen (1980) 147 CLR 75
Jago v District Court (1989) 168 CLR 23
The Queen v Glennon (1992) 173 CLR 592
Walton v Gardiner (1993) 177 CLR 378
The Queen v BWM (1997) 91 A Crim R 260

DECISION: Crown appeal upheld

IN THE COURT OF
CRIMINAL APPEAL

60254/99

NEWMAN J
STUDDERT J
HULME J

THURSDAY, 14 OCTOBER 1999

REGINA v Nicolae HALMI

JUDGMENT

1 NEWMAN J: This is a Crown appeal pursuant to s 5F of the Court of Criminal Appeal Act 1912 against an order made by Judge Moore in the District Court on 5 May 1999, permanently staying proceedings on an indictment charging the respondent, Nicolae Halmi, with supplying a prohibited drug, not less than a commercial quantity, contrary to the provisions of ss 29 and 25(2) of the Drug Misuse and Trafficking Act (1985).
2    His Honour, in ordering the stay, did so on the basis of his acceptance of a submission made on behalf of the respondent that it would be unfair for the Crown, in prosecuting the respondent, to rely upon the concept that the respondent was in joint possession of the drug in question, with at least one man by the name of Costache.
3    It was said that because the Crown had conducted a prosecution against Costache on the basis that he, Costache, was not in joint possession of the subject drug it would be unfair for the Crown to proceed against this respondent on the basis of joint possession.
4    The respondent, Mr Costache, and another man by the name of Duong, were arrested at Cabramatta on 15 March 1997. Duong had been observed driving through Cabramatta followed by a car driven by Costache, the respondent being seated in the front passenger seat of Costache's car. There was another person, who was unidentified, occuping the rear seat in Costache's vehicle.
5    The vehicles were observed by police and a federal agent to stop. Duong was seen to leave his car, walk to the passenger side of Costache's vehicle and pass a red bag through the window. While this was going on the unidentified male in the back seat had removed himself from the car and was standing beside it, looking up and down the street. When the cars drove away,…

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 Regina v Halmi

Details

AGLC: Regina v Halmi [1999] NSWCCA 354
Case: [1999] NSWCCA 354
Decision Date: 14 October 1999

CaseChat Overview and Summary

In Regina v Halmi, the Crown appealed a decision of the Court of Criminal Appeal of New South Wales, which had permanently stayed proceedings on an indictment against the appellant. The appellant had been charged with conspiracy to commit murder, and the case involved allegations relating to a co-accused. The Crown contended that the Court of Criminal Appeal had erred in exercising its discretion under section 5F of the Court of Criminal Appeal Act 1979 (NSW) to permanently stay the proceedings.

The legal issue before the court was whether the Court of Criminal Appeal had exercised its discretion in a manner that amounted to a miscarriage of discretion. The Crown argued that the court had failed to consider all relevant factors and had not adequately balanced the interests of justice, including the need for the appellant to face trial on the indictment. The appellant, on the other hand, maintained that the Court of Criminal Appeal had correctly exercised its discretion, taking into account the circumstances of the case, including the impact of the allegations on the co-accused.

The court held that the Court of Criminal Appeal had indeed exercised its discretion in a manner that amounted to a miscarriage of discretion. The court found that the Court of Criminal Appeal had failed to adequately consider the interests of justice, including the need for the appellant to face trial on the indictment. The court held that the Court of Criminal Appeal had given undue weight to the allegations relating to the co-accused and had not sufficiently considered the potential prejudice to the appellant in delaying the proceedings indefinitely. The appeal was therefore allowed, and the matter was remitted to the Court of Criminal Appeal for further consideration.

The final orders of the court were that the appeal be allowed, the decision of the Court of Criminal Appeal be set aside, and the matter be remitted to that court for further consideration in light of the reasons given by the court. The court did not make any orders as to the costs of the appeal.

Orders