BERRY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH); PHAPAKDY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2008] NSWCCA 20

New South Wales Court of Criminal Appeal

CITATION: BERRY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH); PHAPAKDY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2008] NSWCCA 20

HEARING DATE(S): 5 December 2007

JUDGMENT DATE: 13 February 2008

JUDGMENT OF: Basten JA at 1; Hidden J at 1; Barr J at 1

DECISION: Appeals dismissed.

CATEGORY: Principal judgment

CASES CITED : Pellegrino v Director of Public Prosecutions (Cth) [2007] NSWCCA 17

Simon BERRY - Appellant CCA 2007/3928 PARTIES: Bounthavy PHAPAKDY - Appellant CCA 2007/3925 Director of Public Prosecutions (Cth) - Respondent

FILE NUMBER(S): CCA 2007/3928; 2007/3925

G Brady - Appellant Berry COUNSEL: R Jankowski - Appellant Phapakdy I Bourke - Respondent

Nyman Gibson Stewart - Appellant Berry SOLICITORS: Ryan and Bosscher Lawyers - Appellant Phapakdy Commonwealth Director of Public Prosecutions - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 06/11/0925; DC 06/11/0924

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 21 August 2007

IN THE COURT OF CRIMINAL APPEAL CCA 2007/3928 DC 06/11/0925 CCA 2007/3925 DC 06/11/0924

BASTEN JA HIDDEN J BARR J

13 February 2008 BERRY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH); PHAPAKDY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Judgment 1 THE COURT: On 11 February 2008 the Court handed down judgment in the matter of Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17. At that stage, the Court understood that, although counsel for the present appellants appeared in support of the argument presented for Mr Pellegrino, only Mr Pellegrino had commenced proceedings in the District Court seeking a permanent stay in relation to count 1 on the indictment: [2008] NSWCCA 17 at [2]. The appeal book contained the notice of motion filed on behalf of Mr Pellegrino. No notice of appeal was contained in the appeal book. The Registrar has advised that in fact notices of appeal were filed on behalf of the other two accused, Messrs Berry and Phapakdy, who were affected by counts 3 and 4 in the indictment, those counts alleging that the respective accused were accessories to the offence of Mr Pellegrino identified count 1. 2 It is not necessary to consider the procedural steps by which those appeals came before this Court. Counsel for each of the appellants was heard. It was not suggested that any different considerations applied in relation to the circumstances of the appellants Berry and Phapakdy. Accordingly, their appeals should also be dismissed for the reasons given in the matter of Pellegrino. The appropriate orders will be made accordingly. **********