Regina v Gergis [2000] NSWCCA 508

New South Wales Court of Criminal Appeal

CITATION : Regina v Gergis [2000] NSWCCA 508 FILE NUMBER(S) : CCA 60452/00; 60453/00; 60464/00; 60464/00 HEARING DATE(S) : 22/11/00 JUDGMENT DATE : 6 December 2000

PARTIES : Regina v Karim Gergis JUDGMENT OF : Sully J at 1; Bell J at 2; Whealy J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/1104 LOWER COURT JUDICIAL Stewart ADCJ; Andrew ADCJ OFFICER :

COUNSEL : D.C. Anderson QC; G. Heathcote - Applicant T.L. Buddin SC - Respondent SOLICITORS : Van Houten - Applicant I. V. Knight - State Crown Solicitor

Criminal Appeal Act 1912 LEGISLATION CITED : Justices Act 1902 Evidence Act 1995 R v Matovski (1989) 15 NSWLR 720 at 723 R v Saleam (1989) 16 NSWLR 14; CASES CITED: Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 at 681 F-G; Alister v The Queen (1983-84) 154 CLR 404; Carroll v The Attorney General for NSW (1993) 70 A Crim R 162 at 181-182 Young v Quinn (1985) 4 FCR 483 at 485) DECISION : Applications for leave to appeal dismissed.

IN THE COURT

OF CRIMINAL APPEAL

60452/00 60453/00 60464/00

SULLY J BELL J WHEALY J

WEDNESDAY 6 December 2000

REGINA V Karim GERGIS

JUDGMENT

1 SULLY J: I agree with Whealy J 2 BELL J: I agree with Whealy J for the reasons given by his Honour. 3 WHEALY J: These are three applications for leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912. The applications relate to three District Court decisions. The first was that of Stewart ADCJ on 29 February 2000. His Honour set aside a subpoena which had been issued on behalf of the applicant on 20 November 1999 and which was returnable on 9 December 1999. It was set aside save for ordering limited production of material pursuant to para 1 and 13A of the Schedule to the subpoena. Leave is sought to review his Honour's decision in relation to paras 1 and 18 of the Schedule. 4 Secondly, Andrew ADCJ made orders on 13 July 2000 in respect to a subpoena which had been issued on 23 December 1999 and returnable for 13 January 2000. His Honour set aside the subpoena save for ordering production of material pursuant to paras 1, 7 and 8 of the Schedule to the subpoena. The present application is confined to a review of his Honour's decision in relation to para 2 of the Schedule of the subpoena. 5 Thirdly, Andrew ADCJ gave a decision on 13 July 2000 in relation to a subpoena dated 21 February 2000 returnable on 28 February 2000. His Honour set aside this subpoena save for ordering production pursuant to para 1 of the Schedule to the subpoena. The present application seeks leave to review his Honour's decision in relation to paras 4, 5, 14, 16 and 17 of the Schedule to the subpoena. Further orders were made by his Honour on 21 July 2000 in respect of paras 16 and 17 and these orders are also the subject of this challenge. 6 There were other subpoenas issued between August 1999 and June 2000 but there is no application for leave to appeal in relation to these matters. 7 The applicant is charged with three offences. The offences are alleged to have been committed against two women who at the relevant time were working as prostitutes from Forbes Street, Darlinghurst. The draft indictment was for the following charges: - 1. … that Karim Gergis on 27 October 1998 at Paddington in the State of New South Wales, being then armed with an offensive weapon, to wit, a knife, did rob Maree Ethel Williams of certain property to wit, $40 the property of Maree Williams. [S 97 Crimes Act.] 8 (This charge had been originally framed as an allegation that Miss Williams had been robbed "between 5 and 9 November 1998". The alteration to the date was notified on 30 March 2000). 2. … that Karim Gergis on the 9 November 1998 at The Rocks in the State of New South Wales did assault Nicole-Cristy McMillan and did then beat and otherwise ill-treat the said Nicole-Cristy McMillan. [S. 61 Crimes Act.] 3. … that Karim Gergis on the 9 November 1998 at The Rocks in the State of New South Wales did assault Nicole-Cristy McMillan and did then beat and otherwise ill-treat the said Nicole-Cristy McMillan. [S. 61 Crimes Act.] 9 Although the second and third charges each refer to the commission of an offence at The Rocks, it appears that the precise place of the alleged offence in each case was at or near Mrs Macquarie's Chair.