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

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.
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.”

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.
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

At the hearing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCCA 72
Decision Date: 29 March 2023

CaseChat Overview and Summary

The matter of Ihemeje v The King involved an appeal against a conviction. The defendant was convicted of a criminal offence and sought to appeal on the basis that the indictment under which he was tried was invalid. The Crown prosecutor who signed the indictment was not authorised to do so, which raises the question of whether the trial and subsequent conviction are a nullity because of the invalid indictment. The High Court of Australia was tasked with determining the legality of the indictment and its impact on the trial and conviction.

The central legal issue before the court was whether the invalidity of the indictment rendered the entire trial and conviction a nullity. The court had to consider whether the invalidity of the indictment was a fundamental procedural defect that rendered the entire trial and conviction void, or whether it was a defect that could be cured by other means. The court needed to examine the requirements for a valid indictment and the consequences of an invalid indictment on the trial process and the defendant's rights.

In delivering the judgment, the court found that the invalidity of the indictment was indeed a fundamental procedural defect that rendered the entire trial and conviction a nullity. The court held that the authority of the prosecutor to sign the indictment was a critical procedural requirement, and the failure to comply with this requirement meant that the indictment was invalid. As a result, the trial and conviction were also invalid. The court quashed the conviction and ordered a retrial, finding that the invalidity of the indictment could not be cured by any other means. The court's decision emphasised the importance of procedural requirements in criminal trials and the need for strict compliance with the rules governing the indictment process.

The court ordered that the conviction be quashed and a retrial be conducted in accordance with the proper legal procedures. The defendant was entitled to a new trial with a valid indictment signed by an authorised prosecutor. The court's decision underscored the significance of procedural integrity in criminal proceedings and the need to ensure that all legal requirements are strictly followed to protect the rights of the accused.

Orders