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Court of Criminal Appeal 18 April 2013

Morgan v Regina (No 2)

[2013] NSWCCA 80

Public order & justice offences
CRIMINAL LAW APPEAL INDICTMENT APPEAL JURISDICTION INDICTMENT CONTAINING MULTIPLE COUNTS

Citation: Morgan v Regina (No 2) [2013] NSWCCA 80
Court: NSW Court of Criminal Appeal
Date: 18 April 2013
Judge(s): Beazley P (principal judgment); Hidden J and Harrison J (both agreeing)

Background

The appellant had been convicted by a District Court jury on five counts from a single indictment: receiving a stolen motor vehicle, two counts of robbery in company, and two counts of possessing the proceeds of crime. In his original appeal to the Court of Criminal Appeal, filed in 2010, he raised grounds directed only at counts 2, 3, and 4. Counts 5 and 6 (the proceeds counts) were not addressed in his written submissions or oral argument. When asked directly about those counts during the hearing, senior counsel confirmed they were not the subject of the appeal.

The original appeal was allowed in part in late 2011. Convictions on counts 2, 3, and 4 were quashed, and a new trial was ordered on counts 3 and 4. The Director of Public Prosecutions later directed that no further proceedings be brought on those counts. The sentences for counts 5 and 6 had already expired and been served in full.

In 2012, the appellant sought to appeal his convictions on counts 5 and 6, arguing either that those counts had never been part of his original appeal, or that any abandonment of an appeal in respect of them should be set aside. The Crown contended that the Court had no jurisdiction to entertain the application at all.

  • Whether a criminal jury trial must proceed on a single indictment, even where that indictment contains multiple counts
  • Whether a convicted person may bring more than one appeal from a multi-count indictment
  • If only one appeal is permitted, whether it is possible to abandon an appeal in respect of some counts but not others on the same indictment
  • Whether, on the facts, the appellant had abandoned his appeal in respect of counts 5 and 6 during the original proceedings
  • If abandonment occurred, whether the Court had discretion to permit the appellant to withdraw that abandonment
  • What orders would be appropriate if jurisdiction existed

Decision

Beazley P, with whom Hidden J and Harrison J agreed, held that the "one indictment, one jury" rule is a fundamental feature of criminal procedure. An indictment, regardless of the number of counts it contains, is a single document that produces a single trial. It follows from this structure that there can be only one appeal from an indictment, not a separate appeal for each count. The right of appeal under s 5(1) of the Criminal Appeal Act 1912 is exercised against a conviction "on indictment," not against individual counts in isolation.

Because only one appeal is available from an indictment, the question became whether an appellant can abandon an appeal in respect of some counts while prosecuting it in respect of others. Beazley P held that partial abandonment of this kind is conceptually available. The exchange between the bench and senior counsel at the original hearing, in which counsel confirmed that counts 5 and 6 were not being pursued, was found to constitute an effective abandonment of the appeal as to those counts.

Having found that abandonment occurred, Beazley P considered whether the Court had a residual discretion to permit that abandonment to be withdrawn. The Rules of Court (r 50C) provided a narrow window of 14 days after entry of orders for variation, with no power to extend that time. The original orders had been entered in December 2011 and the new application was not made until April 2012. The Court concluded that its orders had become final and that it lacked jurisdiction to revisit the convictions on counts 5 and 6.

Despite the jurisdictional conclusion, Beazley P noted that had jurisdiction existed, the appropriate outcome would have been acquittal on both counts 5 and 6. The Crown conceded that, given the quashing of the robbery counts and the decision not to retry them, there was no realistic prospect of conviction on the proceeds counts, and that a miscarriage of justice would result if the convictions stood. The application was nonetheless dismissed for want of jurisdiction.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the "one indictment, one jury" rule means a single indictment, even containing multiple counts, produces only one trial and supports only one appeal under s 5(1) of the Criminal Appeal Act 1912.
  • A convicted appellant may abandon an appeal in respect of some counts on an indictment while pursuing it in respect of others; such partial abandonment is effective and leaves the unappealed convictions undisturbed.
  • Where an abandonment is reflected in the entry of final court orders, the window to seek variation is strictly 14 days under r 50C of the Criminal Appeal Rules, and the Court has no power to extend that time, even where a miscarriage of justice may arguably result.
  • In dismissing the application, Beazley P acknowledged that jurisdiction is a threshold requirement: substantive merits, however compelling, cannot cure an absence of jurisdiction.
  • The Crown's concession that acquittals would have been appropriate on counts 5 and 6, had the Court possessed jurisdiction, underscores how the finality of appellate orders can operate harshly where an appeal is not fully pressed at the original hearing.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6
- Criminal Appeal Rules (NSW), rr 23C, 50C
- Criminal Procedure Act 1986 (NSW)
- Supreme Court Rules 1970 (NSW)

Cases
- Morgan v R [2011] NSWCCA 297
- 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
- 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 Cartwright (1989) 17 NSWLR 243
- R v JS [2007] NSWCCA 272; 230 FLR 276
- R v Lumley [2009] QCA 172
- Matta v The Queen (1995) 126 FLR 127