Nikolaidis v R [2007] NSWCCA 254

New South Wales Court of Criminal Appeal

CITATION: Nikolaidis v R [2007] NSWCCA 254

HEARING DATE(S): 20/08/2007 JUDGMENT OF: Santow JA at 27, 29; Hidden J at 28; Howie J at 1

EX TEMPORE JUDGMENT DATE: 20 August 2007

DECISION: Application for leave to appeal is refused.

CATCHWORDS: Criminal Law - Appeal - application for leave to appeal against refusal of permanent stay - trial proceeding - prior applications abandoned - whether leave should be refused.

PARTIES: Leon Nikolaidis v Regina

FILE NUMBER(S): CCA 2007/3505

COUNSEL: Crown- P. Ingram Applicant - R. Sweet

SOLICITORS: S. Kavanagh - Crown N. Carney - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0372

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 06/08/2007

IN THE COURT OF CRIMINAL APPEAL 2007/3505

SANTOW JA HIDDEN J HOWIE J

MONDAY 20 AUGUST 2007 Leon NIKOLAIDIS v REGINA Judgment 1 HOWIE J: This is an application for leave to appeal against an interlocutory judgment by Knox DCJ in the District Court refusing an application for a permanent stay of proceedings in that court in relation to a charge that the applicant between 31 October 1996 and 17 February 1998 at Sydney in the State of New South Wales did make a false instrument, namely a letter addressed to John Preston dated 19 April 1984, with the intention of using it, namely to induce another person to accept the instrument as genuine, and because of that acceptance to do some act to the prejudice of John Preston. 2 The matter has an unfortunate history, a matter which forms a substantial basis for the application that was made before Knox DCJ and which this Court would be asked to consider. 3 There have been a number of proceedings before the District Court in relation to this charge. The history commences when a magistrate discharged the applicant at committal proceedings on the magistrate's view that there was no reasonable prospect of a conviction on that charge. 4 Notwithstanding the magistrate's decision the Director of Public Prosecutions proceeded with the prosecution by filing an ex officio indictment in the District Court. The matter came for trial, firstly, on 31 January 2005. The trial was adjourned on the application of the Crown because of the failure to issue certain subpoenas. The adjournment was granted on 2 February 2005. 5 The matter was again listed for trial on 16 May 2005. That trial commenced before his Honour Judge Phegan. As I understand the situation, the jury retired to consider its verdict but because the jury numbers were reduced to below twelve by the inability of one of the jurors to continue with deliberations, the jury was discharged before verdict. That occurred on 27 May 2005. 6 The third time the matter was before the District Court for trial was on 27 February 2006 before his Honour Judge Geraghty. The jury retired to consider their verdict but unfortunately were unable to come to a unanimous decision and were discharged by his Honour without giving a verdict. 7 The matter then ultimately came before Knox DCJ by way of various interlocutory applications before various judges. There was also, as I understand it, an application made to the Director of Public Prosecutions for a no bill based upon the history of the matter, what was said to be inadequate evidence to support the charge and other subjective considerations. The Director refused the application. 8 The matter came before Knox DCJ. There were again a number of applications made for temporary stays to allow various enquiries to be carried out in relation to a significant piece of evidence in the prosecution case, which is referred to as document Q1, being allegedly the false instrument made and the subject of the charge. 9 Ultimately the situation is that an application was made to Knox DCJ for a permanent stay of the proceedings and that was refused. His Honour then proceeded immediately to commence the trial by empanelling a jury. The trial has been continuing ever since that application was refused on 6 August 2007. 10 An application was brought to this Court for leave to appeal against the decision of Knox DCJ. The matter was fixed for hearing and this Court was due to hear the application. No application had been made to this Court to stay the trial before Knox DCJ pending the resolution of the application before this Court. 11 On the morning of the hearing the Court was notified that the application had been abandoned and that it was to be withdrawn by the applicant. The Court allowed the applicant to withdraw the application and determined to make no further orders. 12 The matter has now come before this Court again on a further application being made for leave to appeal, one filed shortly after the decision had been made by the applicant to abandon the application in this Court. The reasons why there has been this change of view as to whether to proceed with an application in this Court need not be of concern although it appears there has been a difference of opinion as to the merits of the application by counsel who have been briefed to appear for the applicant. 13 The trial is still in progress. We were informed this morning that it has reached the stage that the applicant is giving evidence in the defence case. It is also anticipated that at least one further witness will be called by the defence during the course of the trial and no estimation was able to be given by counsel appearing for the applicant as to when the trial might be conclude. 14 There are a number of grounds of appeal sought to be argued in this Court if leave were granted. Those grounds of appeal deal with matters of the following nature: firstly, it is argued that the trial is oppressive and therefore an abuse of process given the history of the proceedings, the amount of costs already expended by the applicant to this point of time and what is said to be the weakness of the prosecution case. 15 Next is it submitted that there is unfair prejudice to the applicant caused by delay in the prosecution and the consequence that for one reason or another document Q1 can no longer reliably be investigated by a document examiner or any other person who may give relevant evidence in respect of it and its creation by reason of other examinations of the document that have been carried out by various persons at various times. 16 Thirdly it is also submitted that it is an abuse of process for the Director of Public Prosecutions to continue to seek to prosecute this matter particularly in light of the magistrate's original decision to discharge the applicant and the unfortunate history of events including at least one jury being unable to agree upon a verdict. 17 There are I think 14 grounds but in brief they cover the same sort of arguments being abuse of process by reason of oppression, prejudice to the applicant by reason of the difficulties in the applicant now being able to properly have Q1 examined and, further, the lack of likely success of the prosecution case bearing in mind the lengthy history of the matter and the cost to the applicant no doubt both in financial and personal ways. 18 The difficulty for the applicant is that the trial has been proceeding for about two weeks and probably has less than that to proceed to finality. Notwithstanding that this application was being made today, counsel who is appearing for the applicant at the trial made no application to Knox DCJ to stay the proceedings or to seek an adjournment so this matter might be argued before this Court and matters raised in the application for leave to appeal be determined. 19 Insofar as one of the matters relied upon relates to the paucity of the prosecution case, it is significant that as we were informed no application was made to the trial judge at the end of the prosecution case that the matter should be withdrawn from the jury by reason of the inability of the prosecution to prove on the available evidence any one of the elements of the offence. A number of submissions have been made to this Court on the leave application to the effect that there is a deficiency in the prosecution evidence to prove the offence yet no such application was made by counsel appearing for the applicant at trial. With respect there appears to be two cases being presented on behalf of the applicant, one before this Court and one before the trial judge. This is an unacceptable way of this matter being resolved and is caused clearly by the fact the trial is continuing even though the application for leave to appeal against the judgment of Knox DCJ has not been determined. 20 One of the reasons the Court is in this situation is clearly because the applicant himself abandoned the previous application that was before this Court and which the Court was ready to hear. The was at a much earlier stage when that application might have been determined and it may have been that the Court was prepared to grant leave to the applicant notwithstanding that the trial was in progress. 21 One of the most significant matters in considering whether to grant leave is the fact that the applicant is not deprived of arguing any of the matters raised in the application if leave were refused and were he convicted. The provisions of s 5F itself make clear that refusal of leave does not deprive an applicant of taking any point at the hearing of an appeal following conviction that could have been and would have been argued at the hearing of the application. 22 To the extent that some of the submissions relating to unfair prejudice to the applicant depend upon whether or not the trial judge is able to overcome that prejudice by proper directions and warnings to the jury that is a matter that is very often best considered after the trial rather than before it. As I pointed out to the applicant, I know of no decision made by the Court of Criminal Appeal in this State granting a stay because of the loss of evidence or witnesses by reason of delay or otherwise, or where the accused was contending that in some way by delay or for any other reason he had been prejudiced in carrying out forensic testing on a particular exhibit or otherwise adducing evidence about any particular fact in the prosecution case. 23 Where an accused asserts such prejudice arises, this Court has considered that those matters can generally be addressed by a judge in the summing up pointing out to the jury any prejudice allegedly suffered by the accused in testing the prosecution's evidence or in calling evidence in reply by reason of delay or for any other reason and asking the jury to take that matter into account when determining whether the prosecution has proved beyond reasonable doubt the offence with which the jury is concerned. 24 In my view this is an appropriate case to refuse the application for leave to appeal. In particular it seems to me that this Court should take that course by reason of the history of the matter in this Court, that is the prior abandonment of the application which the Court was prepared to consider at an earlier stage in the trial, the state of the trial that is presently before Knox DCJ, the conduct of counsel appearing for the applicant at the trial and, importantly the fact that the refusal at this stage of the application does not seem to me to give rise to such prejudice to the applicant that this Court should be prepared to hear the argument on the merit of the matter. 25 I should add that on a brief consideration of the grounds of appeal raised and the arguments set out in the very full written submissions that have been placed before us by counsel for the applicant that there is nothing that this Court would need to address at this stage in order to ensure the accused a fair trial in the proceedings before Knox DCJ. 26 Therefore, in my view, the application for leave to appeal should be refused. 27 SANTOW JA: I agree. 28 HIDDEN J: I also agree. 29 SANTOW JA: The order of the court is that leave to appeal is refused. **********