Citation: Morgan v Regina (No 2) [2013] NSWCCA 80
Court: Court of Criminal Appeal, New South Wales
Date: 18 April 2013
Judge(s): Beazley P; Hidden J; Harrison J
Background
The applicant had been convicted by a District Court jury on five counts contained in a single indictment: receiving a stolen motor vehicle (count 2), two counts of robbery in company (counts 3 and 4), and two counts of possessing proceeds of crime (counts 5 and 6). In his original appeal to the Court of Criminal Appeal, his notice of appeal listed all five conviction counts as required by the prescribed form. However, his grounds of appeal and written submissions addressed only counts 2, 3 and 4. At the hearing, senior counsel confirmed in an exchange with the bench that counts 5 and 6 were "not the subject of any appeal." The original appeal succeeded in part: count 2 was quashed, and counts 3 and 4 were quashed with a new trial ordered. The Director of Public Prosecutions later directed no further proceedings on counts 3 and 4. The applicant had by then served the sentences on counts 5 and 6 in full.
The applicant subsequently filed a fresh notice of appeal against his convictions on counts 5 and 6, arguing that the quashing of counts 3 and 4 undermined those convictions. The Registrar refused an extension of time, and the applicant brought this application to the Court. The Crown's primary position was that the Court had no jurisdiction to entertain it.
Legal Issues
- Whether a jury trial must proceed on a single indictment even where that indictment contains multiple counts (the "one indictment, one jury" rule)
- Whether more than one appeal may be brought from an indictment containing multiple counts
- Whether an appellant can abandon a criminal appeal in respect of some counts only, preserving the right to appeal those counts separately later
- Whether, in the original appeal, the applicant had already appealed against counts 5 and 6 by operation of the prescribed notice of appeal form
- Whether, if an abandonment occurred, the Court should exercise its discretion to permit withdrawal of that abandonment
- What orders would be appropriate if the Court had jurisdiction and the appeal succeeded
Decision
Issue 1: The "one indictment, one jury" rule
Beazley P confirmed, drawing on Swansson v The Queen [2007] NSWCCA 67, Munday v Gill [1930] HCA 20, and Crane v Director of Public Prosecutions [1921] 2 AC 299, that a jury trial must proceed on a single indictment. That indictment may contain multiple counts, but simultaneous trial on separate indictments is a nullity. Her Honour found this to be a fundamental rule of criminal procedure, well entrenched in both statute and common law.
Issue 2: One appeal from an indictment
The Court held that only one appeal lies from an indictment containing multiple counts. This conclusion rested on the ratio of Grierson v R [1938] HCA 45, the obiter observations of Dixon J that "the determination of an appeal is evidently definitive, and a conviction unappealed is equally final," and consistent intermediate appellate authority in Western Australia (Matta, Napier), South Australia (Brain), and this Court (Saxon). Beazley P reasoned that the "one indictment, one jury" rule necessarily implies a single appeal from the verdicts on that indictment. Permitting multiple appeals against different counts could produce conflicting appellate findings about the same underlying evidence.
Issue 3: Whether part of an appeal can be abandoned
Beazley P held that, because there is only one appeal from an indictment, there can be no partial abandonment that preserves a separate right of appeal over unarticulated counts. Rule 27 of the Criminal Appeal Rules and prescribed Form No III contemplate abandonment of the appeal as a whole, not abandonment of grounds or counts selectively. Where a convicted person declines to contest certain counts, the effect is that those convictions go unchallenged and are final, not that they remain available for a future fresh appeal. The Court therefore lacked jurisdiction to hear the present application on this basis alone.
Issue 4: Did the original appeal encompass counts 5 and 6?
Independently and in the alternative, the Court held that the original appeal did include counts 5 and 6. Rule 24(2) of the Criminal Appeal Rules provides that answers to questions in the prescribed Form No IV notice of appeal are taken to be applications to the Court in respect of those matters. The original notice of appeal listed all conviction counts including counts 5 and 6, as the form required. Accordingly, on the combined operation of the form and r 24(2), counts 5 and 6 were within the original appeal, which had been finally determined. No further appeal was available.
Issue 5: Whether there was an abandonment
On the assumption that partial abandonment were possible, Beazley P was not satisfied that an abandonment had actually occurred. Senior counsel's response to the bench at the original hearing suggested that an appeal in respect of counts 5 and 6 had never been intended or pursued, rather than that it was being abandoned. One cannot abandon something that was never pursued. No formal notice of abandonment had been filed.
Issues 6 and 7: Merits and orders (addressed in the alternative)
Beazley P addressed these issues briefly, and only on the assumption that the Court had jurisdiction and that abandonment had occurred. The Crown conceded that if there had been an abandonment, the convictions on both counts 5 and 6 should be quashed. The evidence supporting count 6 was inextricably linked to count 3 (the Willoughby Hotel robbery), and the evidence supporting count 5 was similarly compromised. Given that no retrial would be pursued for counts 3 and 4, verdicts of acquittal on counts 5 and 6 would have been appropriate. However, absent jurisdiction, no such orders could be made.
Orders Made
- The application is dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that only one appeal lies from an indictment containing multiple counts, regardless of how many counts it contains or how many grounds of appeal are advanced. This follows from the "one indictment, one jury" rule and the principle of finality of litigation.
- A criminal appeal cannot be partially abandoned in a way that preserves a separate right of appeal over unchallenged counts at a later time. Where counts go unchallenged in an appeal, those convictions become final upon determination of the appeal.
- Under r 24(2) of the Criminal Appeal Rules, listing conviction counts in the prescribed Form No IV notice of appeal constitutes an application to the Court in respect of all listed counts. Failing to argue grounds directed at some of those counts does not take those counts outside the appeal.
- Declining to pursue an argument at a hearing is not the same as abandoning it in the technical sense. Abandonment, within the Criminal Appeal Rules, requires positive action and there can be no abandonment of something that was never actually pursued.
- The principle from Grierson v R (1938) 60 CLR 431, that a determined criminal appeal is final and cannot be reopened, applies equally to all counts on the indictment, including those not specifically argued, and has consistently been applied across multiple Australian jurisdictions.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912
- Criminal Appeal Rules
- Criminal Procedure Act 1986
- Supreme Court Rules 1970
Cases
- Arnaout v The Queen [2008] NSWCCA 278; 191 A Crim R 149
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Cheatle v The Queen [1993] HCA 44; 177 CLR 541
- Crane v Director of Public Prosecutions [1921] 2 AC 299
- D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
- Eastman v R [2008] FCAFC 62; 166 FCR 579
- Grierson v R [1938] HCA 45; 60 CLR 431
- Matta v The Queen (1995) 126 FLR 127
- Morgan v R [2011] NSWCCA 297
- Munday v Gill [1930] HCA 20; 44 CLR 38
- Napier v State of Western Australia [2008] WASCA 106; 36 WAR 543
- R v Bell (1987) 8 NSWLR 311
- R v Brain [1999] SASC 358; 74 SASR 92
- R v Cartwright (1989) 17 NSWLR 243
- R v Edwards [No 2] (1931) SASR 376
- R v Grierson (1933) 50 WN (NSW) 71
- R v JS [2007] NSWCCA 272; 230 FLR 276
- R v Landy [1943] VLR 73
- R v Lumley [2009] QCA 172
- R v McDonnell (1928) 20 Cr App R 163
- R v McGrane [2012] QCA 221
- R v Nudd [2007] QCA 40
- R v Reardon [2004] NSWCCA 197; 60 NSWLR 454
- R v Saxon (1998) 101 A Crim R 71
- R v Wickliffe [1986] 1 NZLR 4
- Ridgeway v R [1995] HCA 66; 184 CLR 19
- Sherkam v Parker [2002] WASCA 179
- Swansson v The Queen [2007] NSWCCA 67; 69 NSWLR 406