AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 19 July 2019

Amagwula v R

[2019] NSWCCA 156

Drugs
CRIME APPEAL AGAINST CONVICTION SUPPLY OF PROHIBITED DRUGS UNREPRESENTED ACCUSED AT TRIAL WHETHER TRIAL A NULLITY AS A RESULT BOTH GROUNDS DISMISSED

Citation: Amagwula v R [2019] NSWCCA 156
Court: New South Wales Court of Criminal Appeal
Date: 19 July 2019
Judge(s): Basten JA; Button J; Lonergan J

Background

The appellant was convicted in the District Court at Parramatta on four counts of supplying prohibited drugs under the Drug Misuse and Trafficking Act 1985 (NSW). The charges arose from a police search of his home on 4 April 2012, during which officers discovered a padlocked makeup bag hidden in the kitchen ceiling. The bag contained cocaine (771g), heroin (275g), methylamphetamine (213g), and methorphan (198g), along with a set of scales. The appellant's fingerprints were found on several resealable bags inside. The Crown proceeded on the basis of the "deeming provision" in s 29 of the Act, which treats possession of a traffickable quantity as supply.

The trial did not commence until October 2017, more than five years after the appellant's arrest, during which time he had remained in custody on bail refused. By the time the trial began, the appellant was unrepresented, having had multiple sets of lawyers withdraw. The trial judge refused yet another application to vacate the proceedings, and the appellant was convicted on all four counts on 2 November 2017. He was subsequently sentenced to an aggregate term of 12 years imprisonment with a non-parole period of 9 years.

The appellant applied to the Court of Criminal Appeal for leave to appeal his conviction on two grounds: that the arraignment process was so irregular as to render the trial a nullity, and that his trial was so unfair as to constitute a miscarriage of justice.

  • Whether the trial judge's decision to direct that pleas of not guilty be entered on the appellant's behalf, rather than requiring the appellant to personally enter those pleas before the jury, rendered the trial a nullity.
  • Whether the proceedings constituted a miscarriage of justice, having regard to the appellant's unrepresented status and his inability to secure the attendance of a key witness (identified as a police informant) he claimed had planted the drugs.

Decision

Ground 1: Arraignment

The trial judge had directed that pleas of not guilty be entered on the appellant's behalf when the charges were read before both the court and the jury panel. The appellant did not dissent, and had himself stated he was innocent when seeking an adjournment earlier in the proceedings. The Court of Criminal Appeal rejected the argument that this irregularity rendered the trial a nullity. Critically, the procedural history showed that on 6 February 2017, at an earlier listing of the matter before Culver DCJ, the appellant had personally responded "not guilty" to each count when arraigned on an indictment in effectively identical terms. The only difference between that indictment and the one at trial was a missing letter in the name of the drug in count 4. The Court found this earlier arraignment was sufficient to satisfy the arraignment requirement, and that the irregularity at the 2017 trial did not go to jurisdiction in a way that nullified the proceedings.

Ground 2: Fairness of Trial

The Court acknowledged the trial was difficult, given the appellant was unrepresented and had been in custody for over five years. However, the Court found that the appellant had been given ample opportunity over several years to obtain legal representation. His own counsel on multiple occasions had sought to withdraw, sometimes because the appellant refused to sign instructions. The Court accepted the concession made by the appellant's counsel on appeal that there was no suggestion of unfairness arising purely from the lack of representation. On the specific complaint that the trial judge failed to arrange for the police informant to attend court for examination, the Court found no miscarriage of justice was established. The appeal on both grounds was dismissed.

Orders Made

  • Leave to appeal granted with respect to ground 2.
  • Both grounds of appeal dismissed.
  • The appeal dismissed.

Key Takeaways

  • An irregular arraignment, where a trial judge directs pleas of not guilty to be entered rather than requiring the accused to personally enter them, does not automatically nullify a trial. The Court of Criminal Appeal found that a valid earlier personal arraignment on a substantively identical indictment could satisfy the requirement.
  • Where a procedural irregularity occurs in arraignment, courts will examine whether it goes to jurisdiction or is a curable irregularity, applying principles from Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 on the consequences of statutory non-compliance.
  • Refusing to adjourn a trial because an accused is unrepresented will not, of itself, constitute a miscarriage of justice where the accused has been afforded repeated and substantial opportunities to obtain legal representation over an extended period.
  • In dismissing the unfairness ground, the Court noted that the appellant's own conduct contributed materially to the succession of counsel withdrawals, and that his counsel on appeal expressly accepted no unfairness arose from the bare fact of unrepresentation.
  • Leave to appeal may be granted on a ground even where that ground ultimately fails, where the case involved a difficult trial with an unrepresented accused and counsel had identified arguable potential breaches of fairness warranting the Court's consideration.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), ss 16, 20, 130, 154, 155, 157
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Evidence Act 1995 (NSW), s 138

Cases
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Gallagher v The Queen (1986) 160 CLR 392
- Murphy v The Queen (1989) 167 CLR 94
- MacPherson v R (1981) 147 CLR 512
- Gilbert v The Queen (2000) 201 CLR 414
- Dupas v The Queen (2010) 241 CLR 237
- Libke v R (2007) 230 CLR 559
- Nudd v The Queen (2006) 80 ALJR 614
- GG v The Queen (2010) 79 NSWLR 194
- Hughes v R (2015) 93 NSWLR 474
- R v Apostilides (1984) 154 CLR 563
- Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109
- Fell v Chenhall [2018] NSWSC 1574; [2018] NSWCA 260
- Caruso v R [2012] VSCA 138
- Reg v Ellis (1973) 57 Cr App R 571