BERRY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH); PHAPAKDY v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

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.

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.