Romolo v R - [2016] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Romolo v R [2016] NSWCCA 240
Hearing dates: 2 August 2016
Date of orders: 02 August 2016
Decision date: 31 October 2016
Before: Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [49]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – application for permanent stay of proceedings – threat made against applicant and his family – whether trial judge failed to have regard to prejudice to applicant in presentation of his case at trial – appeal dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F
Criminal Code Act 1995 (Cth), Sch, ss 11.2A(1), 307.1
Cases Cited: Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2015] NSWCCA 330
TS v The Queen [2014] NSWCCA 174
Category: Principal judgment
Parties: Marco Romolo
Regina
Representation:
Counsel:
M Thangaraj SC (Applicant)
T D Anderson (Respondent)
C Dobraszczyk (Respondent)
Solicitors:
Horowitz & Bilinsky Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/334189
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 July 2016

Before:

Lakatos SC DCJ

File Number(s):

2012/334189

Judgment

HOEBEN CJ at CL: I agree with Button J.
BUTTON J: On 2 August 2016, I joined in orders of this Court granting leave to appeal but dismissing an appeal brought pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) by Marco Romolo (the applicant). The appeal was against the refusal of Judge Lakatos SC to order a permanent stay of a criminal trial in the District Court of New South Wales. The following are my reasons for doing so.

Background

The background of the matter was not disputed between the parties, and may be shortly stated.
The applicant is charged with importing a commercial quantity of a border controlled drug (methamphetamine), by joint commission of the offence, contrary to s 307.1 and s 11.2A(1) of the Schedule to the Criminal Code Act 1995 (Cth). The applicable maximum penalty is imprisonment for life.
In a nutshell, the Crown case is that 5,939 grams (4,691.8 grams pure) of the prohibited drug in question were imported into Australia whilst contained in a number of boxes. The Crown case is also that the applicant implicated himself in the offence, chiefly by repeatedly contacting the courier company that imported the boxes and enquiring about them, and using the name of the false addressee whilst doing so.
By way of a letter of 19 February 2014 sent by his solicitors to the Commonwealth Director of Public Prosecutions (the CDPP), the applicant has indicated that much of the Crown case would not be disputed by him at trial. It was also indicated, however, that an important part of his case would be that, as a result of a meeting he had with a…

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 Romolo v R

Details

AGLC: Romolo v The Queen [2016] NSWCCA 240
Case: [2016] NSWCCA 240
Decision Date: 31 October 2016

CaseChat Overview and Summary

The appeal by Romolo against his conviction and sentence was heard in the High Court. The applicant had been convicted of a number of serious offences and had appealed on the basis that the trial judge had failed to adequately protect him from prejudice in presenting his case at trial. The applicant had previously made a successful application for a permanent stay of proceedings on the basis of threats made against him and his family. The primary judge dismissed the application for a stay, finding that the threats had been addressed by the court's procedural directions. The applicant appealed against his conviction and sentence on the basis that the trial judge had failed to have regard to the prejudice caused by the threats in the presentation of his case at trial.
The legal issues before the court were whether the trial judge had failed to adequately protect the applicant from prejudice in presenting his case at trial and whether this failure was a ground for allowing an appeal against conviction or sentence. The court found that the trial judge had taken all reasonable steps to protect the applicant from prejudice in presenting his case at trial and that there was no failure on the part of the trial judge to protect the applicant from prejudice. The court found that the applicant's case was not made out and dismissed the appeal. The court found that the trial judge had exercised his discretion in accordance with the law and that there was no error on the part of the trial judge in dismissing the application for a stay of proceedings. The court found that there was no ground for allowing an appeal against conviction or sentence.

The appeal was dismissed and the convictions and sentences were affirmed. The court found that the trial judge had exercised his discretion in accordance with the law and that there was no error on the part of the trial judge in dismissing the application for a stay of proceedings. The court found that the applicant had not established any ground for allowing an appeal against conviction or sentence. The court found that the trial judge had taken all reasonable steps to protect the applicant from prejudice in presenting his case at trial and that there was no failure on the part of the trial judge to protect the applicant from prejudice. The appeal was dismissed and the convictions and sentences were affirmed.

Orders