James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83

New South Wales Court of Criminal Appeal

CITATION: James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83

HEARING DATE(S): 16/03/2006

JUDGMENT DATE: 28 March 2006

JUDGMENT OF: Sully J at 1; Simpson J at 2; Howie J at 3

DECISION: Appeals dismissed.

CATCHWORDS: Criminal Law - Trial practice and procedure - amendment of indictment during Crown case - whether resulted in a miscarriage of justice.

LEGISLATION CITED: Crimes Act 1900 - ss 86(2)(a), 97(1), 103 Criminal Procedure Act 1986 - ss 20, 21

House v The King (1936) 55 CLR 499 CASES CITED: R v Stuart (NSWCCA, unreported, 8 March 1996) R v Cook (NSWCCA, unreported, 9 May 1990)

James Borodin v Regina PARTIES: Irene Borodin v Regina ED v Regina Bogomiagkov v Regina

FILE NUMBER(S): CCA 2005/2100; 2005/2102; 2005/2101; 2005/2098

COUNSEL: J.A. Girdham - Crown P. Bodor QC - Applicants

SOLICITORS: S. Kavanagh - Crown G. Mitchell, Bergagnin & Co. - Applicants

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0401; 03/11/0460

LOWER COURT JUDICIAL OFFICER: Keleman DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/2100 2005/2102 2005/2101 2005/2098

SULLY J SIMPSON J HOWIE J

TUESDAY 28 MARCH 2006 James BORODIN v REGINA Irene BORODIN v REGINA ED v REGINA Timothy BOGOMIAGKOV v REGINA Judgment 1 SULLY J: I agree with Howie J. 2 SIMPSON J: I agree with Howie J. 3 HOWIE J: On 16 March 2006 this Court dismissed an appeal against conviction by each of the four appellants and indicated that it would publish its reasons later. These are the reasons for which I joined in the order dismissing the appeals. 4 The four appellants and a fifth accused, BD, were arraigned before a jury and Judge Keleman SC (the Judge) on an indictment containing seven counts to the following effect: