Citation: Gravett v Regina [2007] NSWCCA 210
Court: New South Wales Court of Criminal Appeal
Date: 13 July 2007
Judge(s): Giles JA; Latham J; Mathews AJ
Background
The appellant was convicted in the District Court of conspiracy to import a prohibited import, specifically a commercial quantity of MDMA. He was one of five co-accused tried together on charges arising from the same alleged conspiracy. Separate indictments were presented for each accused at that trial.
The jury returned guilty verdicts against three of the five co-accused, including the appellant and a co-accused named Henry. The appellant was sentenced to imprisonment.
Henry had previously appealed his conviction on the same procedural ground and succeeded before the Court of Criminal Appeal. The appellant then sought to appeal his own conviction on the same basis, requiring an extension of time, which the Crown did not oppose.
Legal Issues
- Whether the trial was conducted in accordance with law, given that separate indictments were presented for each co-accused rather than a single indictment covering all accused tried together.
- Whether the "one trial one jury" rule had been infringed, and if so, whether that infringement was fundamental enough to nullify the conviction.
- Whether the proviso in s 67 of the Criminal Appeal Act 1912 could be applied to preserve the conviction despite any such infringement.
Decision
The Court of Criminal Appeal had already addressed these precise questions in R v Swansson; R v Henry [2007] NSWCCA 67. In that earlier decision, the Court reaffirmed the longstanding common law rule that only one indictment may be presented in a single trial involving multiple accused, commonly described as the "one trial one jury" rule. The Court in Swansson and Henry declined to depart from that rule, noting that any change of that magnitude should be left to the High Court.
The earlier decision also held that the infringement was sufficiently fundamental to preclude reliance on the proviso in s 67 of the Criminal Appeal Act 1912, which ordinarily permits a court to dismiss an appeal despite an error if no substantial miscarriage of justice occurred. Henry's conviction was accordingly quashed and a new trial ordered. The Crown subsequently applied to the High Court for special leave to appeal that decision, and the High Court refused.
In the present appeal, the Court found the appellant's position was indistinguishable from Henry's. The Crown correctly conceded the appeal should be allowed. No separate analysis was required beyond applying the reasoning already established in Swansson and Henry.
Orders Made
- Extension of time to appeal against conviction granted.
- Appellant's conviction and sentence quashed.
- New trial ordered.
Key Takeaways
- The Court of Criminal Appeal confirmed that the "one trial one jury" rule requires a single indictment where multiple accused are tried together; presenting separate indictments for each co-accused at the same trial infringes that rule.
- A breach of this rule renders the trial contrary to law in a manner sufficiently fundamental to nullify the resulting conviction.
- Under s 67 of the Criminal Appeal Act 1912, the proviso that permits a court to dismiss an appeal notwithstanding an error does not apply where the infringement is this fundamental.
- The High Court's refusal to grant special leave to appeal the earlier decision in Swansson and Henry left that authority intact, allowing it to be applied directly to the appellant's case.
- Where co-accused are tried in identical procedural circumstances, a successful appeal by one accused on a point of law going to the validity of the trial will generally extend to the others in the same position.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 67
Cases:
- R v Swansson; R v Henry [2007] NSWCCA 67