Ihemeje v The King

[2023] NSWCCA 72

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ihemeje v R [2023] NSWCCA 72

Hearing dates:

20 March 2023

Date of orders:

20 March 2023

Decision date:

29 March 2023

Before:

Price J; N Adams J; Yehia J

Decision:

(1) Appeal allowed.

(2) Quash the conviction of import marketable quantity of border-controlled drug, namely methylamphetamine, pursuant to s 307.2 of the Criminal Code 1995 (Cth), entered in the District Court of New South Wales on 20 October 2022.

(3) Order a new trial.

(4) List the matter at Sydney District Court on 30 March 2023 before Judge G O’Rourke SC to fix a new trial date.

Catchwords:

CRIME – conviction appeal – where Crown prosecutor who signed the indictment was not authorised to do so – whether trial and conviction are a nullity because of invalid indictment – Crown conceded – conviction quashed and retrial ordered

Legislation Cited:

Criminal Code Act 1995 (Cth), s 307.5

Criminal Procedure Act1986 (NSW), ss 126, 16

Director of Public Prosecutions Act 1983 (Cth), ss 6, 31, 16

Director of Public Prosecutions Act1986 (NSW)

Drug Misuse and Trafficking Act 1986 (NSW), s 25

Interpretation Act1987 (NSW), s 12(1)(a)

Judiciary Act1903 (Cth), ss 68, 69

Cases Cited:

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

Category:

Principal judgment

Parties:

Cyril Onyewuchi Ihemeje (Applicant)
Crown (Respondent)

Representation:

Counsel:
Mr T Woods (Appellant)
Ms M Kumar (Respondent)

Solicitors:
Just Defence Lawyers (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/00310511

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 October 2022

Before:

Judge G O’Rourke SC

File Number(s):

2018/00310511

JUDGMENT

1. THE COURT: The appellant appeals against his conviction of one count of importing a marketable quantity of a border-controlled drug, namely, methylamphetamine, on 20 October 2022. He was found guilty that day by a jury at a trial presided over by Judge O’Rourke SC.

2. The appellant relies upon the following sole ground of appeal:

“The trial and conviction of the appellant are nullities as the indictment on which the trial proceeded was not a valid indictment.”

3. In written submissions filed on 14 March 2023, the Director of Public Prosecutions (NSW) (“DPP”) conceded that the appeal must be allowed, and the conviction quashed. In fact, it was the DPP who notified the appellant’s legal representative of the invalidity of the indictment shortly after the trial concluded.

4. At the conclusion of the hearing on 20 March 2023, the court was satisfied that the appeal should be allowed, the conviction quashed, and a new trial ordered. The court’s reasons were reserved at that time. These are the court’s reasons for accepting the Crown concession and making those orders at the conclusion of the hearing.

Factual background

5. At the hearing of this appeal the appellant read an affidavit of Eloise Howard, the appellant’s solicitor, affirmed 7 February 2023. It annexed the correspondence between the parties concerning the irregularity. The DPP read an affidavit of Jennifer Hoy, a solicitor employed at the Office of the Director of Public Prosecution affirmed on 14 March 2023. It explained the nature of the irregularity.

6. Given the nature of the irregularity in this matter it is not necessary to summarise the evidence at trial. Nor is it necessary to summarise the procedural history in any detail. The following brief summary is sufficient to understand why the Crown’s concession was properly made.

7. On 10 October 2018, the appellant was arrested and charged with a number of drug offences. Relevantly, he was charged with offences of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act 1986 (NSW) (“DMTA Act”) and offences of importing a border-controlled drug contrary to s 307.5 of the Criminal Code Act 1995 (Cth) (“Criminal Code”). Prosecutions for offences contrary to the DMTA Act are usually conducted by the DPP whereas prosecutions for offences contrary to the Criminal Code are usually conducted by the Commonwealth Director of Public Prosecutions (“CDPP”).

8. On 11 April 2019, the DPP confirmed with the CDPP that the DPP would retain carriage of all of the appellant’s charges.

9. On 4 July 2019, the appellant was arraigned in the District Court in Sydney and entered pleas of not guilty on all counts. He subsequently made a successful application to sever the state offences from the Commonwealth offences before Judge Beckett. A jury trial before Judge Harris on the DMTA Act offences was subsequently aborted and an election was made that those offences would be re-tried before her Honour sitting alone without a jury.

10. On 16 November 2021, Judge Harris found the appellant not guilty of the DMTA Act offences. The remaining Commonwealth offences were listed for trial on 20 September 2022. Mr Stephen Wilkinson, a salaried Crown prosecutor, was briefed to appear at that trial.

11. On 20 September 2022, the appellant was arraigned and entered pleas of not guilty to the following three charges:

Count 1: Import a marketable quantity of a border-controlled drug pursuant to s 307.2(1) of the Criminal Code.

Count 2: Import a commercial quantity of a border-controlled drug pursuant to s 307.1(1) of the Criminal Code and in the alternative.

Count 3: Attempt to import a commercial quantity of a border-controlled drug pursuant to ss 307.1(1) and 11.1(1) of the Criminal Code.

12. The trial commenced before Judge O’Rourke and a jury of twelve on 20 September 2022.

13. On 13 October 2022, the Crown advised the court that there would be no further proceedings in relation to count 3. The jury retired and commenced deliberations that day.

14. On 20 October 2022, the jury returned a verdict of guilty on count 1 but were unable to reach a verdict in relation to count 2.

Relevant legislation

15. Before recounting what occurred after the verdict, it is pertinent to first have regard to the relevant legislation concerning the presentment of indictments in criminal jury trials conducted in the District Court of NSW.

16. Section 130 of the Criminal Procedure Act1986 (NSW) provides that jurisdiction is conferred on the District and Supreme Court in relation to indictable matters “as soon as the indictment is presented, and the accused person is arraigned”. Section 9 of the Criminal Procedure Act provides that:

“Any prosecution or proceedings instituted by the Attorney General or the Director of Public Prosecutions in respect of any offence (whether an indictable offence or a summary offence) may be instituted in either the official name or the personal name of the Attorney General or the Director of Public Prosecutions.”

17. The expression, “Director of Public Prosecutions” is not defined in the Criminal Procedure Act nor in the Director of Public Prosecutions Act1986 (NSW) (“the DPP Act”). Despite this, s 12(1)(a) of the Interpretation Act1987 (NSW) relevantly provides that “a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales”. Accordingly, the reference in s 9 of the Criminal Procedure Act is to the DPP and not the CDPP.

18. Section 126 of the Criminal Procedure Act is headed “Signing of indictments” and provides that:

(1)  An indictment shall be signed—

(a) by the Attorney General, the Solicitor General or the Director of Public Prosecutions, or

(b) for and on behalf of the Attorney General or the Director of Public Prosecutions by—

(i) a Crown Prosecutor,

(ii) a Deputy Director of Public Prosecutions, or

(iii) a person authorised under subsection (2) to sign indictments.

(2) The Director of Public Prosecutions may, by order in writing, authorise a person to sign indictments for and on behalf of the Director.

(3) It shall be presumed, in the absence of evidence to the contrary, that an indictment signed by a person for and on behalf of the Attorney General or the Director of Public Prosecutions was signed by a person authorised to do so.

(4) A certificate signed by the Director of Public Prosecutions to the effect that a specified person was authorised during a specified period to sign indictments for and on behalf of the Director is admissible in evidence in any legal proceedings and is evidence of the matters certified.

19. Section 6 of the Director of Public Prosecutions Act1983 (Cth) (“the CDPP Act”) is headed, “Functions of the Director” and relevantly provides the following:

(1) The functions of the Dire ctor are:

(a) to institute prosecutions on indictment for indictable offences against the laws of the Commonwealth; and

(b) to carry on prosecutions of the kind referred to in par agraph (a) (not being prosecutions instituted by the Attorney-General or a Special Prose cutor), whether or not instituted by the Dire ctor; and

…

(n) to do anything incidental or conducive to the performance of any of the functions referred to in para graphs (a) to (mb) and in sub section (2).

(2) In addition to his or her functions under subse ction (1), the functions of the Director include:

(a) functions that are conferred on the Dir ector by or under any other law of t he Com monwealth; and

(b) such other functions as are prescribed.

20. Section 31 of the CDPP Act is headed “Delegation by Director” and relevantly provides as follows:

(1B)  The Dir ector may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him or her, delegate to:

(a)  a person performing a similar role under a law of a St ate or Territ ory; or

(b)  a member of the staff of a S tate or Terri tory authority (within the meaning of subs ection 15(3)) who is a legal pr actitioner; or

(c)  a person authorised by, or under, a law of a Sta te or Terr itory to institute or conduct prosecutions for offences against the laws of the Sta te or Te rritory; or

(d)  a person included in a class of persons prescribed by the regulations for the purposes of this p aragraph;

all or any of the Di rector's functions and powers under the following provisions:

(e)  pa ragraphs 6(1)(a), (b), (c), (d) and (e);

(f)  para graph 6(1)(n) (so far as it relates to the functions covered by pa ragraph (e) of this sub section);

…

21. It is to be accepted that the reference to the “Director” in s 31(1B) of the CDPP Act is a reference to the CDPP.

22. For completeness, it is to be noted that s 69 of the Judiciary Act1903 (Cth) relevantly provides as follows:

(1) Indictable offences against the laws of the Com monwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General appoints in that behalf.

(2) Any such appointment shall be by commission in the Queen's name, and may extend to the whole Co mmonwealth or to any St ate or part of the Commonwealth.

(2A) Nothing in sub section (1):

affects the power of the Director of Public Prosecutions to prosecute by indictment in his or her official name.

23. Thus, it can be seen that the CDPP is authorised by statute to present indictments for offences against the laws of the Commonwealth, and the DPP is authorised by statute to present indictments for jury trials for offences against the laws of NSW.

24. Relevantly for the purposes of this appeal, on 25 August 2021 the then CDPP signed a document delegating various functions and powers under s 31 of the CDPP Act to the DPP and to certain persons employed by the DPP (“the Delegation”). Those specified persons were listed in a schedule to the delegation (“the Schedule”). One of the powers delegated by the CDPP to the DPP and the persons listed in the Schedule was the power to institute prosecutions on indictment for indictable offences against the laws of Commonwealth.

Post-conviction events

25. On 12 December 2022, a solicitor at the DPP realised that the Crown prosecutor who signed the indictment for the importation offences was not a person whose name appeared in the Schedule. The CDPP was advised of this irregularity that day and the appellant’s legal representatives were informed on 14 December 2022. The District Court was informed of this irregularity on 15 December 2022.

26. On 17 January 2023, the DPP confirmed to the appellant’s lawyers that the trial indictment was a nullity and that it was a matter for the Court of Criminal Appeal to quash the conviction on count 1. The appellant lodged a conviction appeal on 19 January 2023. The matter was expedited and on 25 January 2023 the conviction appeal was listed for hearing on 1 March 2023. It was subsequently relisted for hearing on 20 March 2023.

Was the trial a nullity?

27. Section 16 of the Criminal Procedure Act is headed “Certain defects do not affect indictment”. Subsection (1)(i) was enacted in October 2005 and relevantly provides as follows:

(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds—

…

(i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions—for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director.

28. That subsection was enacted following the decisions of this court in Regina v Halmi (2005) 62 NSWLR 262; [2005] NSWCCA 2 (“Halmi”) and Regina v Darko Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 (“Janceski”). In both of those decisions, convictions were quashed on the ground that the indictment for NSW offences was invalid because it was signed by a person not authorised in writing to sign indictments pursuant to s 126 of the Criminal Procedure Act. In both cases, the barrister who signed the Indictment was not a statutorily appointed Crown prosecutor but, rather, a barrister from the private bar briefed to appear for the DPP. The court held in both decisions that non-compliance with s 126 of the Criminal Procedure Act rendered the indictment invalid and deprived the District Court of jurisdiction to hear the trials.

29. Section 16(1)(i) of the Criminal Procedure Act does not apply to save the indictment in the present matter. It was enacted in response to a specific difficulty of private barristers briefed by the DPP signing indictments when only Crown prosecutors were authorised to do so. Its effect is that if the same situation as occurred in Halmi or Janceski were to happen again, the trial would not be a nullity. The present case poses a different problem.

30. A more recent decision is that of Ozgen v R (2021) 291 A Crim R 408; [2021] NSWCCA 252. The appellant in that matter had been convicted of both State and Commonwealth offences. It was conceded on appeal that the relevant indictment had been signed by a person who was not authorised to sign indictments for and on behalf of the DPP. Although the convictions on the NSW offences were quashed, this court held that non-compliance with s 126 did not render the indictment invalid to confer jurisdiction on the District Court in respect of the Commonwealth offences. Similarly, in the earlier decision of Ravarotto v The Queen [2012] VSCA 263, the trial was conducted upon an indictment which contained both Victorian and Commonwealth offences. The indictment was not signed by a person authorised by the CDPP to commence a prosecution for Commonwealth offences. On that basis, only the convictions for the Commonwealth offences were quashed by the Victoria Court of Appeal.

31. Neither of these cases assist but they are other examples of where convictions following a prosecution by a person not authorised by the relevant DPP or CDPP to sign the indictment were quashed on appeal on the basis that the court did not have jurisdiction to hear the trial.

32. The regrettable fact in the present matter is that a person signed the indictment who was not authorised to do so. There is no statutory provision to overcome that irregularity. The conviction must be quashed.

33. By way of final observation, at the hearing of this appeal it emerged that the names of some but not all of the NSW Crown prosecutors are included in the Schedule to the Delegation. To the extent that it was relevant in understanding how an error of this nature could occur, there was no evidence before the court as to how many names are on the Schedule, how often the Schedule is updated, what dictates who is included on the Schedule and how one could check to ascertain whose name is on the Schedule and whose is not.

ORDERS

34. The orders of the court, entered on 20 March 2023, were:

1. Appeal allowed.

2. Quash the conviction of import marketable quantity of border-controlled drug, namely methylamphetamine, pursuant to s 307.2 of the Criminal Code 1995 (Cth), entered in the District Court of New South Wales on 20 October 2022.

3. Order a new trial.

4. List the matter at Sydney District Court on 30 March 2023 before Judge G O’Rourke SC to fix a new trial date.

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Decision last updated: 29 March 2023