Citation: [2007] NSWCCA 67
Court: New South Wales Court of Criminal Appeal
Date: 21 March 2007
Judge(s): Spigelman CJ; McClellan CJ at CL; Sully J; Simpson J; Howie J
Background
Two appellants were convicted in the District Court of offences relating to the importation of a commercial quantity of MDMA (methylenedioxymethamphetamine) into Australia. One appellant (Henry) was tried alongside four co-accused, each on a separate indictment. The other appellant (Swansson) was tried alongside two co-accused, again each on a separate indictment, and was himself arraigned on a second indictment for a State drug offence.
Both appellants argued that their trials and convictions were a nullity because the proceedings had been conducted on more than one indictment simultaneously. This was said to breach the long-established "one indictment, one jury" principle of criminal procedure.
The Crown contested both the existence of the rule as a rule of law and, in the alternative, argued that any breach did not render the proceedings a nullity and that the court could apply the "proviso" under the Criminal Appeal Act 1912 (NSW) to dismiss the appeals on the basis that no substantial miscarriage of justice had occurred.
Legal Issues
- Whether the "one indictment, one jury" principle is a rule of law or merely a rule of practice.
- Whether conducting a trial on more than one indictment renders the trial and conviction a nullity.
- Whether the term "convicted on indictment" in s 5(1) of the Criminal Appeal Act 1912 is limited to valid convictions arising from valid indictments, such that a nullity trial falls outside the Court's appellate jurisdiction.
- Whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (which allows a court to dismiss an appeal despite finding an error, where no substantial miscarriage of justice occurred) can be applied to cure a trial that is characterised as a nullity.
- Whether, having quashed the convictions, the Court should order new trials or leave future steps to the Director of Public Prosecutions.
- Whether the Court should proceed to determine Swansson's additional grounds of appeal.
Decision
The "one indictment, one jury" rule
All five judges agreed that the proposition permitting only one indictment in any one criminal proceeding is a long-established rule of criminal procedure. The majority (Spigelman CJ, McClellan CJ at CL, and Sully J) held that the Court should apply the forceful, though technically obiter (that is, not strictly binding), reasoning of the High Court in Munday v Gill (1940) 44 CLR 38. Simpson and Howie JJ reached the same conclusion. The Court rejected the Crown's submission that the rule is merely a rule of practice with no continuing relevance.
Appellate jurisdiction over null proceedings
Spigelman CJ and McClellan CJ at CL held that the phrase "convicted on indictment" in s 5(1) of the Criminal Appeal Act 1912 is not confined to valid convictions on valid indictments. The Court therefore retained jurisdiction to hear the appeals even though the trials were characterised as nullities. This conclusion drew support from the approach taken by the House of Lords in Crane v Director of Public Prosecutions [1921] 2 AC 299.
Application of the proviso
Despite finding jurisdiction to apply the proviso in s 6(1), Spigelman CJ and McClellan CJ at CL held that the observations in Munday v Gill about the "one indictment, one jury" rule were of such force that the defect must be treated as fundamental, and the proviso therefore had no application. Sully J agreed, reasoning that the proviso cannot authenticate the penal consequences of a process that was a nullity for failure to observe a fundamental norm of a lawful criminal trial. Simpson and Howie JJ dissented on the mechanism but reached compatible practical outcomes, holding that where a trial is so procedurally irregular as to be a nullity, the proviso cannot cure it.
Consequence and further grounds
Henry's convictions and sentences were quashed and a new trial ordered. Simpson and Howie JJ took the view that the Court should go no further than quashing the convictions and should not proceed to Swansson's additional grounds of appeal, on the basis that the Court should not express opinions on the merits of a prosecution outside its statutory function. Swansson was granted leave to add an additional ground of appeal, though the Court's disposition in respect of his broader appeal reflected the nullity finding.
Orders Made
In the matter of Henry:
- Appeal allowed
- Convictions and sentences quashed
- New trial ordered
In the matter of Swansson:
- Leave granted to add an additional ground of appeal
Key Takeaways
- The "one indictment, one jury" principle is a rule of criminal procedure with binding force in NSW, not merely a discretionary rule of practice. Conducting a trial of multiple accused on separate simultaneous indictments breaches this rule and renders the trial a nullity.
- A nullity trial does not fall outside the Court of Criminal Appeal's appellate jurisdiction. The phrase "convicted on indictment" in s 5(1) of the Criminal Appeal Act 1912 extends to convictions arising from procedurally irregular, including null, proceedings.
- Where a trial is rendered a nullity by a fundamental breach of criminal procedure, the proviso in s 6(1) of the Criminal Appeal Act 1912 is not available to dismiss the appeal on the ground that no substantial miscarriage of justice occurred. The defect is too fundamental for the proviso to cure.
- Under s 8 of the Criminal Appeal Act 1912, the Court of Criminal Appeal may order a new trial where a miscarriage of justice is found and that outcome is the most appropriate remedy available.
- A division of judicial opinion emerged as to whether, after quashing convictions on nullity grounds, the Court should proceed to determine other grounds of appeal that might result in an acquittal. Simpson and Howie JJ held it should not, as such an order would itself have no legal effect.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 8(1)
- Criminal Procedure Act 1986 (NSW), ss 21, 23, 46(2), 129, 130, 164
- Criminal Code Act 1995 (Cth), s 11.5
- Customs Act 1901 (Cth), s 233B(1)(d)
- District Court Act 1973 (NSW), s 166
- Criminal Appeal Act 1907 (UK)
Key Cases:
- Munday v Gill (1940) 44 CLR 38
- Crane v Director of Public Prosecutions [1921] 2 AC 299; [1920] 3 KB 236
- Wilde v The Queen (1988) 164 CLR 365
- Weiss v The Queen (2005) 224 CLR 300
- Darkan v The Queen (2006) 80 ALJR 1250
- Nudd v The Queen (2006) 80 ALJR 614
- R v Janceski [2005] NSWCCA 281
- R v Hoard; R v Mihilovic; R v Morgan; R v J (1992) 29 NSWLR 242
- Calvin v Carr [1980] AC 574
- Russell v Bates (1927) 40 CLR 209
- R v Harris (No 2) [1990] VR 305
- R v Cockrell [2005] 2 Qd R 448