REGINA v HALMI [1999] NSWCCA 354

New South Wales Court of Criminal Appeal 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 Barton v The Queen (1980) 147 CLR 75 Jago v District Court (1989) 168 CLR 23 CASES CITED: 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, Costache's car was stopped a short time later. When the police approached the car they observed Mr Halmi looking down into the bag which was, in fact, on the floor in front of him. It was recovered and found to contain almost a kilogram of heroin. The police arrested Mr Halmi, Mr Costache and Mr Duong and they made no admissions. 6 Certain things were found by police. Duong had a folder with him which included a number of telephone numbers, including one known as "George 0411 249400". A mobile phone having that number was found in Mr Halmi's possession. Mr Halmi was also found to have a notebook in which was recorded a number "9214 7374 John Nam." That turned out to be a pager found in Duong's possession. 7 Prior to 5 May 1999, both Duong and Costache were tried separately at the Campbelltown District Court. Both trials resulted in what is colloquially known as a "hung verdict". The respondent's trial was due to be heard at Campbelltown on 3 May, but did not proceed because the subject application to stay the trial was successfully made on the respondent's behalf. 8 In the trial of Costache a key witness was a federal agent by the name of Gray. He was the sole witness who claimed to have seen Duong pass the bag through the window of Costache's car. Without going into his evidence in detail, the fact was he gave a number of slightly inconsistent accounts of what he had seen. 9 During the course of his summing up, his Honour Judge Ford, who was conducting the trial of Costache, made some observations in the course of his summing up to the jury relating to the concept of possession. This gave rise to a number of exchanges which took place between Mr Ramage QC and his Honour, relating to the concept of possession. Plainly enough, Mr Ramage was concerned about the concept of joint possession. 10 Having engaged in an exchange with his Honour during the course of the summing up, on the next day Mr Ramage apparently had with him a draft direction on joint possession. This seemed to cause some disquiet with his Honour, who directly asked the Crown Prosecutor whether the direction should be given on joint possession. The Crown Prosecutor said that the case had not been opened on joint possession and made a reference to the fact that the Crown relied upon the evidence of Gray that he saw Duong pass the bag into Costache's car. 11 His Honour, in his summing up, directed the jury as follows: "The Crown must prove that the accused had conscious control over the plastic bag containing the drug in his car. In other words the prosecution must prove that he was aware, Mr Costache was aware of the presence of the plastic bag in the car and that he was exercising control over it to the exclusion of anyone not in joint possession with him." 12 An exchange took place later between Mr Ramage and the learned trial judge and during the course of that exchange the learned trial judge, quite correctly in my view, disavowed that he had given any direction relating to joint possession as far as Costache was concerned. 13 Before his Honour, counsel for the respondent put this: "In Halmi's trial the Crown is obliged to refrain from putting that Halmi was in joint possession with Costache. The Crown must therefore put that Halmi was in sole possession. That would entitle Halmi to an acquittal on the evidence which would be forthcoming. Put another way, if the Crown case against Halmi is that Halmi was in sole possession that is fundamentally at odds with the way in which the trial was conducted against Costache. It would be illusory to suggest that it would be an effective counter for the trial judge to inform the jury in some way, or for evidence to be called that the Costache trial had been conducted on a different basis. The Crown should not be permitted to change its position from trial to trial from one accused to another to accommodate the evidence to suit the Crown against the individual accused." 14 His Honour came to the conclusion that the submissions thus encapsulated were correct, and ultimately came to the conclusion that, as a consequence of upholding that submission, he should order the stay which he did. 15 The question of a court's power to order a stay of proceedings has, over the last several decades, been the subject of scrutiny by superior courts and a number of matters of principle have arisen. 16 First, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing which a trial judge could do in the conduct of the trial could relieve the applicant against its unfair consequences (see Barton v the Queen (1980) 147 CLR 75 and 111, Jago v District Court (1989) 168 CLR 23 at 3475, The Queen v Glennon (1992) 173 CLR 592 at 615, 616, and also the observations of the High Court in Walton v Gardiner (1993) 177 CLR 378 at 395, 396 particularly.) 17 Two; the right to a fair trial is entrenched in the criminal justice system to ensure that innocent people are not convicted of criminal offences and a stay of proceedings may be granted to prevent an unfair trial (see Jago particularly at 29, 5 and 2). 18 Third, that right must be balanced against the right of the community to expect that persons charged with serious offences are brought to trial (Jago, 33, 72). 19 That statement involves the proposition that fairness to an accused is not the sole criterion when a court decides whether a criminal trial should proceed (Jago 30). The grant of a stay of proceedings is discretionary and the circumstances will usually have to be extreme for such relief to be given (Jago, 31, 60 and 75, Glennon at 615, 616, 605.) 20 The onus lies upon the applicant for a stay to demonstrate that the disadvantage or prejudice which he would suffer by refusal of his stay is, in a relevant sense, unacceptable to the extent that the trial would be unfair (see Barron v Attorney General (1987) 10 NSWLR 215 at 219, 233, Regina v Basha, (1989) 39 A Crim R 337 at 338, Regina v Helmling unreported, Court of Criminal Appeal, 11 November 1993 at 4.) 21 Those principles of course, as I have said, have been applied by this Court in a number of cases in which stays have been granted by, particularly, the District Court and those matters have resulted in certain stays being overruled and others being upheld. 22 It was rightly submitted on behalf of the respondent that in dealing with an appeal under s 5F, the observations of the then Chief Judge at Common Law, Mr Justice Hunt in The Queen v BWM (1997) 91 A Crim R 260 at 266, represent a correct statement of the law. I, with respect, agree. His Honour said: "This Court has already held that, in an appeal pursuant to s 5F, the findings of fact and the exercise of any discretion by the trial judge may be attacked only if error has first been demonstrated, as must be demonstrated in an appeal against conviction. Error may be demonstrated in relation to a finding of fact if there is no evidence to support it, or if the evidence is all one way, or if the judge has misdirected himself or herself leading to a miscarriage of justice; error may be demonstrated in relation to the exercise of discretion if the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to a relevant consideration, or has made an error in relation to the facts (as so demonstrated), or if the result is so unreasonably or plainly unjust that the judge must have failed properly to exercise that discretion." 23 The question then emerges, what in fact was the unfairness to the respondent caused by the manner in which the co-accused, Costache, had been prosecuted? He was charged with the self same offence as the present respondent and it is also correct that the Crown in Costache's trial had, as would the Crown in the proposed trial of the respondent, to prove that the accused was in possession. 24 In Costache's case it was no part of the Crown case to demonstrate the position of this respondent in terms of his possession of the subject article. As I have said, it was for the Crown in Costache's case to prove that Costache was in possession and that he set out to do. Whether in that case he had put his case on the basis of Costache being in sole possession or Costache being in joint possession, seems to me to have absolutely nothing to do with the trial of this accused. There is no question of any issue estoppel arising in relation to the matters raised against Costache. Of course in any event there has yet to be, as I understand it, a conclusion of Costache's matter there being, as I have already noted, a hung jury in that matter. 25 In other words, the question emerges as to whether the conduct of the case against Costache gives rise to any unfairness as far as the present respondent is concerned and it is here that I find it difficult to find that his Honour should have upheld the submission made. 26 There is no disadvantage in terms of the conduct of the trial of this respondent which arises from the manner in which Costache's trial had been conducted. There was no possible finding coming from Costache's trial which could affect the result of the accused's trial. 27 If this were a case of a bank robbery where the traditional example had been given relating to joint criminal enterprise of one person being at the bank counter, armed with a pistol forcing a member of the bank staff to hand him a bag of money, another one at the door keeping a look out to make certain that nobody interrupted their criminal activities, and a third outside in the motorcar with the engine running, if the first mentioned members of that particular gang were tried separately there would be no need to mention any joint criminal responsibility on the part, say, of the person at the counter pointing the gun at the teller. 28 It would be, in my view, an amazing result that if, in a separate trial, the Crown had in prosecuting the bank robber at the teller's place had not relied upon any joint criminality with the other two members of the gang, that either of the other two members could successfully obtain a stay of this type because joint criminality was not there raised. It seems to me that that is the situation here. 29 In my view his Honour, by exercising his discretion to grant a stay has made in my view a significant error; an error based upon the acceptance of what I believe to be a flawed proposition, namely that because the Crown relied upon one form of possession against one accused in a separate trial, it is unfair to raise the matter of joint possession against the present accused. 30 In the extract of the summing up by his Honour Judge Ford in Costache's case, his Honour said this: "In other words the prosecution must prove that Costache was aware, Mr Costache was aware of the presence of the plastic bag in the car and he was exercising control over it to the exclusion of anyone not in joint possession with him." 31 It seems to me that in these circumstances, this is a case where the discretion below so completely miscarried that this Court should interfere. For the reasons I have given I would propose the following orders: