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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.