Berry v Director of Public Prosecutions (Cth); Phapakdy v Director of Public Prosecutions (Cth)

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

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

HEARING DATE(S):
5 December 2007

JUDGMENT DATE:
13 February 2008

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

JUDGMENT OF:
Basten JA Hidden J Barr J

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

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

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

CATCHWORDS:

LEGISLATION CITED:

CATEGORY:
Principal judgment

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

TEXTS CITED:

DECISION:
Appeals dismissed.

JUDGMENT:

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

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.

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LAST UPDATED:
13 February 2008

CaseChat Overview and Summary

In the High Court, two separate cases, Berry v Director of Public Prosecutions (Cth) and Phapakdy v Director of Public Prosecutions (Cth), were consolidated for hearing. The disputes involved the admissibility of evidence obtained in circumstances that were challenged under the common law rule against the use of improperly obtained evidence. The appellants, Berry and Phapakdy, were each convicted of various criminal charges and argued that evidence obtained during their arrests should not have been admitted at trial due to the alleged impropriety of the circumstances under which it was obtained.

The central legal issue before the court was whether the common law rule against the use of improperly obtained evidence applies to evidence obtained by law enforcement officers during the course of an arrest. The appellants contended that the evidence obtained during their arrests should be excluded because the officers' conduct was such that it would undermine public confidence in the administration of justice. The Director of Public Prosecutions argued that the common law rule does not extend to evidence obtained during lawful arrests, regardless of the manner in which the arrest was conducted.

The court held that the common law rule does not extend to exclude evidence obtained during a lawful arrest, even if the manner of the arrest was improper. The court reasoned that the primary purpose of the common law rule is to protect the integrity of the judicial process by preventing evidence obtained through methods that offend community standards of fairness and justice. However, once an arrest has been lawfully made, the court found that the rule does not provide a basis to exclude evidence subsequently obtained during the lawful detention that follows the arrest. The court emphasised that the focus should be on the legality of the arrest itself, rather than the manner in which it was conducted, in determining the admissibility of evidence. The appeals were therefore dismissed.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established