AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 29 March 2023

Ihemeje v R

[2023] NSWCCA 72

Drugs
CRIME CONVICTION APPEAL CROWN CONCEDED CONVICTION QUASHED AND RETRIAL ORDERED

Citation: Ihemeje v R [2023] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 29 March 2023
Judges: Price J, N Adams J, Yehia J

Background

The appellant was convicted by a jury on 20 October 2022 of importing a marketable quantity of methylamphetamine, a border-controlled drug, contrary to s 307.2 of the Criminal Code Act 1995 (Cth). The trial was conducted in the District Court before Judge O'Rourke SC. The Commonwealth offences had been separated from related state drug charges, which had already resulted in an acquittal in 2021.

Shortly after the trial concluded, the NSW Director of Public Prosecutions (DPP) notified the appellant's legal representative that the indictment was irregular. Specifically, the salaried Crown prosecutor who had signed the indictment was not included in the schedule of persons delegated authority to do so by the Commonwealth Director of Public Prosecutions (CDPP).

The appellant appealed on the sole ground that the trial and conviction were nullities because the indictment was invalid.

  • Whether the indictment was valid where the Crown prosecutor who signed it was not authorised to do so under the relevant legislative framework.
  • Whether an unauthorised signature on an indictment deprives the District Court of jurisdiction, rendering the trial and conviction a nullity.
  • Whether any statutory provision could overcome the irregularity.

Decision

The DPP conceded the appeal, accepting that the conviction had to be quashed. The Court of Criminal Appeal agreed, reserving its reasons to explain why the concession was properly made.

The relevant framework required that Commonwealth indictments be signed by a person duly authorised. Section 126 of the Criminal Procedure Act 1986 (NSW) sets out who may sign an indictment, including Crown prosecutors signing "for and on behalf of" the DPP. However, for Commonwealth offences, the applicable authority derived from a delegation by the CDPP under s 31(1B) of the Director of Public Prosecutions Act 1983 (Cth). The prosecutor who signed the indictment in this matter was not included in the schedule to that delegation.

The court referred to two comparable decisions. In Ozgen v R [2021] NSWCCA 252, convictions for NSW offences were quashed where the indictment had been signed without proper authorisation. In Ravarotto v The Queen [2012] VSCA 263, the Victorian Court of Appeal quashed Commonwealth convictions on the same basis. Both cases confirmed that an indictment signed by an unauthorised person deprives the court of jurisdiction.

The court noted, as a concluding observation, that only some NSW Crown prosecutors' names appeared in the delegation schedule, and no evidence was before the court explaining how many names were included, how the schedule was maintained, or how its currency could be verified. The court identified this as a regrettable source of potential error.

Orders Made

  • Appeal allowed.
  • Conviction for importing a marketable quantity of a border-controlled drug (methylamphetamine) under s 307.2 of the Criminal Code Act 1995 (Cth), entered 20 October 2022, quashed.
  • New trial ordered.
  • Matter listed at Sydney District Court on 30 March 2023 before Judge O'Rourke SC to fix a new trial date.

Key Takeaways

  • An indictment for a Commonwealth offence signed by a Crown prosecutor not included in the CDPP's delegation schedule is invalid, and a conviction following such a trial cannot stand.
  • Under s 126 of the Criminal Procedure Act 1986 (NSW), authority to sign an indictment on behalf of the DPP or CDPP must be properly established; the presumption in s 126(3) did not assist where the absence of authorisation was established on the evidence.
  • The Court of Criminal Appeal confirmed the approach taken in Ozgen v R and Ravarotto v The Queen: non-compliance with the authorisation requirements goes to jurisdiction, not merely procedural regularity.
  • No statutory provision existed to cure the irregularity in this case, leaving the court with no option but to quash the conviction and order a retrial.
  • The court's closing observation flagged a systemic concern: the CDPP's delegation schedule for NSW Crown prosecutors was not transparently maintained or readily verifiable, creating conditions in which this type of error could recur.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.5
- Criminal Procedure Act 1986 (NSW), ss 9, 126, 130
- Director of Public Prosecutions Act 1983 (Cth), ss 6, 31
- Director of Public Prosecutions Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1986 (NSW), s 25
- Interpretation Act 1987 (NSW), s 12(1)(a)
- Judiciary Act 1903 (Cth), ss 68, 69

Cases:
- Ozgen v R (2021) 291 A Crim R 408; [2021] NSWCCA 252
- Ravarotto v The Queen [2012] VSCA 263
- Regina v Darko Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281
- Regina v Halmi (2005) 62 NSWLR 262; [2005] NSWCCA 2