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Court of Criminal Appeal 3 November 2021

Ozgen v R

[2021] NSWCCA 252

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION [2005] NSWCCA 281 SAVED INDICTMENT WHETHER INDICTMENT SEVERABLE WHETHER JURY ’ S VERDICT UNREASONABLE APPEAL DISMISSED

Citation: Ozgen v R [2021] NSWCCA 252
Court: Court of Criminal Appeal, NSW
Date: 3 November 2021
Judges: Leeming JA; Price J; Hamill J

Background

The appellant was tried in the District Court on an indictment containing three counts. The first two were federal offences: jointly attempting to possess unlawfully imported border-controlled drugs, specifically approximately 655 kilograms of methylamphetamine and 1,383 kilograms of MDMA, both replaced with inert substances during a controlled operation. The third count was a state offence under the Drug Misuse and Trafficking Act 1985 (NSW), relating to approximately 55 grams of MDMA found at the appellant's home.

The Crown case was that the appellant participated in the removal of boxes from a shipping container at a Blacktown premises in the early hours of 29 November 2014, and transported four co-participants to a Smithfield warehouse where the boxes were unloaded. Evidence connecting the appellant to the operation included his car captured on tollway cameras, a key ring found at Smithfield containing his gym tag and a key to the warehouse, and a Blackberry device bearing traces of his DNA containing text messages indicating knowledge of the offence.

Late in a trial lasting approximately seven weeks, Crown counsel disclosed a significant problem: the officer who had signed the indictment on behalf of both the Commonwealth and NSW Directors of Public Prosecutions had been authorised only by the former, not the latter. This raised the question of whether the entire indictment, and consequently the convictions on the two federal counts, were nullities. The trial judge directed the jury not to return a verdict on the state count and the jury convicted the appellant on both federal counts.

  • Whether the indictment was invalid in its entirety because the signing officer lacked authority from the NSW Director of Public Prosecutions, rendering the trial and convictions nullities
  • Whether legislative amendments introduced following earlier cases (R v Halmi and R v Janceski) saved the indictment
  • Whether a defective indictment is severable, so that the invalidity of the state count did not infect the federal counts
  • Whether the District Court retained jurisdiction to hear the federal counts notwithstanding the defect in the state count
  • Whether the jury's verdicts on the federal counts were unreasonable
  • Whether the trial judge erred in declining to leave to the jury a defence that the appellant did not know the drugs were imported

Decision

Ground 1: Nullity of the indictment

The Court held that the want of authority to sign the indictment on behalf of the NSW Director of Public Prosecutions rendered the trial on the state count a nullity, and the trial judge was correct to decline to take a verdict on that count. However, that defect did not invalidate the indictment as a whole or deprive the District Court of jurisdiction to try the federal counts. The Court applied principles from Bounds v R and R v Cockrell, confirming that an indictment is severable and that invalidity affecting one count does not necessarily infect the remaining counts.

The Court also addressed the District Court's jurisdiction to hear federal matters. The District Court exercised federal jurisdiction in relation to the Commonwealth drug offences under the Judiciary Act 1903 (Cth), and that jurisdiction operated independently of any defect in the state count. Leeming JA noted, without deciding, that there were unresolved questions about whether the acting officer truly lacked authority, including the potential operation of s 49(8) of the Interpretation Act 1987 (NSW), but those questions were left as assumptions favourable to the appellant because neither party pressed the point.

Grounds 2 and 3: Unreasonable verdict and failure to leave a defence

The Court granted leave on grounds 2 and 3 but found no merit in either. The jury's verdicts on the federal counts were not unreasonable given the substantial body of evidence connecting the appellant to the operation. The Court also rejected the contention that the trial judge was required to leave to the jury a defence based on a lack of knowledge that the drugs were imported, finding no error in that approach.

Orders Made

  • Leave to appeal granted on grounds 2 and 3
  • Appeal dismissed

Key Takeaways

  • A defective indictment is severable: where one count is invalid due to a want of authority to sign on behalf of the relevant Director of Public Prosecutions, that defect does not automatically nullify the remaining counts on the same indictment.
  • The Court of Criminal Appeal confirmed that the District Court's jurisdiction to try federal offences derived from the Judiciary Act 1903 (Cth) and was unaffected by a defect going only to a state count on the same indictment.
  • Where an indictment is signed by an officer authorised by the Commonwealth Director of Public Prosecutions but not the NSW Director, the appropriate remedy for the state count is for the trial judge to decline to take a verdict, rather than discharging the jury or directing an acquittal.
  • Questions about whether an acting officer inherits an authorisation under s 49(8) of the Interpretation Act 1987 (NSW), or under common law agency principles, were left unresolved by this decision, which proceeded on assumptions favourable to the appellant.
  • Insufficient grounds existed to disturb the federal convictions on either unreasonableness or misdirection, even where a co-accused who gave evidence about lack of knowledge was not convicted.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 15, 16, 21, 29, 46, 126, 130
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Commonwealth Criminal Code, ss 11.1, 11.2A, 13.4, 13.5, 307.5
- Judiciary Act 1903 (Cth), s 68
- Crimes Act 1914 (Cth), s 4K
- Interpretation Act 1987 (NSW), s 49(8)
- Criminal Appeal Act 1912 (NSW), s 5(1)(a)
- District Court Act 1973 (NSW), s 166
- Commonwealth Constitution, ss 77(iii), 109

Key Cases
- Bounds v R [2006] HCA 39
- R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2
- R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281
- Director of Public Prosecutions v Currie; Director of Public Prosecutions v Daniels (a pseudonym) [2021] VSCA 272
- O'Reilly v Commissioners of the State Bank of Victoria (1982) 153 CLR 1
- Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Maxwell v The Queen (1996) 184 CLR 501
- Braysich v The Queen (2011) 243 CLR 434