R v Halmi

[2005] NSWCCA 2

Reported Decision: 62 NSWLR 263
156 A Crim R 150

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Halmi [2005] NSWCCA 2
HEARING DATE(S):	19/11/04
JUDGMENT DATE:	25 February 2005
JUDGMENT OF:	Simpson J at 1; Bell J at 2; Buddin J at 54
DECISION:	Allow the appeal; Set aside the verdict and conviction and sentence.

CATCHWORDS:	Indictment - invalidity - not signed by authorised person
LEGISLATION CITED:	Administration of Justice (Miscellaneous Provisions) Act 1933 Crimes Act 1900 Criminal Procedure Act 1986 Crown Prosecutors Act 1986 Drug Misuse and Trafficking Act 1985
CASES CITED:	Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Brown, R v Tran [2004] NSWCCA 324 R v Deng (unreported) 17 December 1996 R v Howard (1992) 29 NSWLR 242 R v Lapa (No 2) (1995) 80 A Crim R 398 R v Reardon [2004] NSWCCA 197 R v Sepulveda [2003] NSWCCA 131 R v Stephens (1990) 48 A Crim R 323 R v Taylor [2003] NSWCCA 194
PARTIES:	Regina Nicolai Halmi (Appellant)
FILE NUMBER(S):	CCA 2004/2056
COUNSEL:	E Wilkins (Crown) P Brereton SC / D Dalton (Appellant)
SOLICITORS:	S Kavanagh P Eckstein (Appellant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/21/0335
LOWER COURT JUDICIAL OFFICER:	Holt DCJ

IN THE COURT OF
CRIMINAL APPEAL

2004/2056 CCAP

SIMPSON J
BELL J
BUDDIN J

Friday 25 February 2005

Regina v Nicolai Halmi

Judgment

1 SIMPSON J: I agree with Bell J.

2 BELL J: The appellant was convicted at trial on an indictment that charged him that on 8 May 2000 at Bass Hill in the State of New South Wales he did supply a prohibited drug, namely heroin, in an amount that was not less than the large commercial quantity applicable to that drug. The offence is provided by s 25(2) and s 33 of the Drug Misuse and Trafficking Act 1985 (the DMTA). It carries a maximum penalty of imprisonment for life. The appellant was sentenced to a term of seven years’ imprisonment to commence on 17 January 2003. A non-parole period of five years and three months was specified. The appellant appeals against his conviction. There is no challenge to the sentence.

The facts

3 The appellant and a co-offender named Stojkov were alleged to have supplied five blocks of heroin weighing 1.789 kilograms to persons named Ilievski and Stranski at Bass Hill on 8 May 2000. It was the Crown case that the appellant had driven Stojkov to Bass Hill where he met and supplied Ilievski with the heroin. The heroin was wrapped in plastic wrappings. The outer wrapping was of a different quality plastic to the inner wrapping.

4 The Crown case against the appellant was a circumstantial one that depended on the inferences to be drawn from the facts and circumstances including that:

(i) Ilievski was arrested at the Rydges hotel, Bass Hill in possession of the heroin;
(ii) Stojkov and Ilievski were in mobile telephone contact in the period shortly before Ilievski’s arrest;
(iii) Stojkov and Ilievski were seen speaking to one another a few minutes before Ilievski’s arrest;
(iv) the appellant drove Stojkov to Bass Hill on the day of these events;
(v) the appellant did not use his own vehicle;
(vi) the appellant’s fingerprints were found on the outer plastic wrapping on one of the blocks or heroin and on the inner plastic wrapping of another of the blocks of heroin;
(vii) the appellant had attempted to flee when he observed the arrest of Stojkov.

5 The appellant gave evidence at the trial and offered an innocent explanation of how his fingerprints had come to be on the plastic wrappings. It was his evidence that he had given a lift to Stojkov on this day and that he had no knowledge of the latter’s involvement in the supply of heroin.

The appeal

6 The appellant challenges his conviction on three grounds, which were filed prior to the hearing. These may be distilled into the single ground: that the verdict was unreasonable in that the evidence did not support it.

7 In written submissions filed by the Crown, a question concerning the regularity of the trial was raised: the indictment was signed by a barrister in private practice who had been briefed to appear on behalf of the Director of Public Prosecutions (the Director) at the trial. She was not a person authorised to sign indictments on behalf of the Director.

8 On the hearing of the appeal, counsel for the appellant was given leave to rely upon a further ground in these terms:

The trial and conviction of the appellant are nullities by reason of having proceeded on an invalid indictment.

9 It is necessary to deal with this ground first since the parties were agreed that were it to succeed, the proper order would be one setting aside the verdict and quashing the appellant’s conviction but not substituting a verdict of acquittal. The appellant accepted that notwithstanding the ground that contends that the evidence was insufficient to support his conviction, this Court would not enter a verdict of acquittal if persuaded that the trial had been a nullity: R v Brown, R v Tran [2004] NSWCCA 324.

10 The Crown Prosecutor read the affidavit of Dominique Kelly, Managing Solicitor of the Court of Criminal Appeal Unit of the Office of the Director of Public Prosecutions, which was sworn on 18 November 2004, and which set out the history of the proceedings in the District Court. At the date of the hearing of the appeal the Crown was still making inquiries concerning the conduct of the proceedings in the District Court prior to the date of the appellant’s trial. In particular, it was not known whether the appellant had been arraigned on a valid indictment that charged him with the offence for which he had been tried. The parties were given leave to file further evidence on the issue raised by this ground and to file supplementary written submissions.

11 Pursuant to that leave the Crown filed the affidavit of John Favretto, an acting Crown Prosecutor, sworn on 3 December 2004, to which was annexed the transcript of a directions hearing on 6 September 2002. The Crown also filed a transcript of proceedings on 4 June 2003 and supplementary submissions dealing, inter alia, with the challenge to the indictment. (The transcript records the date of the proceedings as 4 June 2004 but this appears to be a typographical error.)

12 The appellant filed the affidavit of Adam John Williams, barrister, who appeared on his behalf on 6 September 2002. Written submissions in support of this ground together with submissions in reply to the respondent’s supplementary submissions were filed on his behalf.

13 No objection was taken to the contents of the affidavits of Mr Favretto or Mr Williams. No issue was taken with the accuracy of the transcript of proceedings before the District Court on 4 June 2003 to which each party referred in written submissions.

14 The Crown filed further written submissions in reply on 24 December 2004. These raise a factual issue with respect to assertions contained in the appellant’s further supplementary submissions dated 20 December 2004. In paragraph [5] of those submissions the appellant referred to the Favretto indictment as bearing a “filed” stamp of the day before the proceedings before the Chief Judge of the District Court. In the supplementary submissions in reply the Crown noted the registry stamp on the Favretto indictment reads “06 Sep 2002”. It is common ground that the proceedings came before the Chief Judge of the District Court on 6 September 2002. The Crown submits that the date stamp on the Favretto indictment is consistent with the indictment having been filed in Court on that day or with the indictment having been filed in the District Court Registry on 6 September 2002. I accept that to be the case.

The course of the proceedings in the District Court

15 On 15 March 2002, the appellant was arraigned before Sides DCJ in the District Court at Campbelltown on a joint indictment dated 10 December 2001 that was signed by Michael Fox, a Crown Prosecutor (the Fox indictment). The Fox indictment charged the appellant and Mile Stojkov jointly with the offence of knowingly taking part in the supply of heroin in an amount which was not less than the large commercial quantity applicable to that drug (knowingly taking part in supply). An endorsement on the indictment records that each accused entered a plea that he was not guilty and that the proceedings were stood over for trial to 3 June 2002.

16 The appellant applied for an order that he be tried separately from Stojkov on the ground that the Crown was proposing to call Ilievski in its case against Stojkov and that this would prejudice his fair trial. Provision is made for the court to make an order for separation under s 21 of the Criminal Procedure Act 1986 (the Act).

17 On 3 June 2002 Sides DCJ ordered that the trial of the appellant be separated from that of Stojkov. The ruling was made on the assumption that Ilievski was to be called in the Crown case against Stojkov. We were informed that his Honour made plain that his determination should not bind another judge in the event that circumstances changed in this respect.

18 As at 5 September 2002 it appears that the Crown had decided that it would not call Ilievski in its case against Stojkov or the appellant. On that date John Favretto, an acting Crown Prosecutor, found a bill against the appellant and Mile Stojkov for the offence of the supply of heroin in an amount not less than the large commercial quantity applicable to that drug (supply). On 5 September 2002 Mr Favretto signed an indictment charging the two jointly with that offence (the Favretto indictment).

19 On 6 September 2002 the proceedings against the appellant and Stojkov were mentioned before the Chief Judge of the District Court. Mr Williams represented the appellant and Mr Favretto appeared on behalf of the Crown. Mr Favretto is unable to recall the proceedings. They were sound recorded and Mr Favretto has since listened to the recording. A transcript of the proceedings is annexed to his affidavit. The appellant was not arraigned upon the Favretto indictment. Mr Favretto is unable to recall whether a copy of the Favretto indictment was presented in court in the course of the mention of the proceedings on 6 September 2002 or whether it was presented by being filed in the Registry on that day. He says that it was not unusual for him to present a fresh indictment in court during the Chief Judge’s mention list by simply handing it up without placing on record the fact that was occurring.

20 Mr Williams has no recall of any discussion with Mr Favretto before the matter was mentioned on 6 September 2002. He did not recall Mr Favretto seeking the appellant’s consent to the presentation of any indictment on that day.

21 On 6 September 2002 the proceedings were stood over for trial to 3 March 2003.

22 The date fixed for trial was later vacated on the application of the appellant and Stojkov and a new trial date of 10 June 2003 was fixed.

23 On 4 June 2003 Holt ADCJ heard an application for separate trials. The transcript of proceedings on that day records the Crown Prosecutor saying,

“I hand up the indictment that was filed on 6 September 2002. From the Crown’s perspective this is a joint criminal enterprise case. Therefore the Crown’s position is that the matter should run together” (T 1.31-34).
The Crown Prosecutor went on to submit:

“They do not have direct evidence of the handover but the Crown case is that Stojkov and Halmi were jointly involved in the supply of these drugs to Mr Iliebski [sic]. So the Crown says this is clearly a joint enterprise case” (T 2.8-10).

The Judge asked the appellant’s counsel what the defence was asking for, to which counsel responded, “separate trials to be continued” (T2.49). In the course of further submissions on the question of whether there should be separate trials, the Judge asked which trial would go first. The appellant’s counsel responded, “I am happy to go second” (T 3.52).

24 The transcript does not record that a formal order separating the trials was made under s 21 of the Act. His Honour is recorded as saying:

“I can see your point about the reasons why it ought to be a joint trial but I can see what his Honour said on the previous occasion and that issue, apparently, is going to be raised again. There will probably be voir dire issues and the like all day but if that issue is going to emerge then, perhaps, we ought to have separate trials and be done with it” (T 3.57-4.5).
The Crown Prosecutor responded to this observation stating, “The Crown can run them as separate trials” (T5.7).

25 The appellant’s trial commenced on 29 July 2003 before Holt ADCJ and a jury. Annexed to Ms Kelly’s affidavit is a copy of the indictment dated 29 July 2003, that charged the appellant with the offence of supply of heroin in an amount not less than the large commercial quantity (the Traill indictment). The indictment is signed:

“C Traill Crown Prosecutor on behalf of the Director of Public Prosecutions”.

The back page of the indictment records the date of the appellant’s plea, the numbers by which the jurors are known, the dates on which the trial proceeded, the verdict and the sentence.

26 Before turning to counsels’ submissions on this preliminary issue, it is appropriate to set out a number of the provisions of the Act:

S 8 Prosecution of indictable offences

S 8 (1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions.

16 Certain defects do not affect indictment

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

(a) for the improper insertion or omission of the words “as appears by the record”, “with force and arms”, “against the peace”, “against the form of the statute” or “feloniously”,

(b) for want of an averment of any matter unnecessary to be proved or necessarily implied,

(c) for want of a proper or perfect venue or a proper or formal conclusion,

(d) for want of any additional accused person or for any imperfection relating to any additional accused person,

(e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence,

(f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name,

(g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,

(h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened.

(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:

(a) any alleged defect in it in substance or in form, or

(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.
S 20 Amendment of indictment

20 (1) An indictment may not be amended after it is presented, except by the prosecutor:

(a) with the leave of the court, or

(b) with the consent of the accused.
(2) This section does not affect the powers of the court under section 21.

(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

S 22 Amended indictment

22(1) if any indictment is amended, a note of the order for amendment is to be endorsed on the indictment, and the indictment in its amended form is to be treated as the indictment for the purposes of the trial and all proceedings in connection with or consequent on the trial.

(2) Any verdict or judgment given after the amendment of an indictment is to have the same force and effect as if the indictment had originally been in its amended form.

(3) If it is necessary at any time to draw up a formal record of an indictment, the record may be drawn up in the words and form of the amended indictment, without notice of the fact of the indictment.


S 126 Signing of indictments

(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.

S 127 Manner of presenting indictments

S 127 The regulations and (subject to the regulations) the rules of court may make provision for or with respect to the manner of presenting indictments (including by the filing of the indictment in a court registry).

27 Part 53 cl 10D of the District Court Rules 1973 (DCR) provides:

Manner of presenting indictments

10D(1) An indictment may be presented by filing a copy of the indictment with the registrar.

(2) If an indictment is filed with the registrar, a copy of the indictment must be served on each accused person or the accused person’s legal representative within 14 days after the filing of the indictment.

(3) Without limiting the generality of rule 3, an indictment may be filed or served by facsimile.

(4) In this rule, accused person’s legal representative means:


(a) a solicitor who acts for the accused, or

(b) if a barrister acts for the accused person uninstructed by a solicitor, the barrister.

28 On 29 July 2003 Ms Traill did not hold an appointment as a Deputy Director of Public Prosecutions or as a Crown Prosecutor nor was she authorised in writing to sign indictments for and on behalf of the Director pursuant to s 126(2).

29 The parties were agreed that the question of whether the failure of the Traill indictment to comply with the requirements of s 126 rendered it invalid was to be answered by application of the principles enunciated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. In their joint judgment McHugh, Gummow, Kirby and Hayne JJ observed at [91]:

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the conditions. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied ( Howard v Bodington (1877) 2 PD 203 at 211, per Lord Penzance); there is not even a ranking of relevant factors or categories to give guidance on the issue.”

30 The Act governs the conduct of criminal proceedings. Criminal proceedings are instituted in the Supreme and District Courts by the presentation of an indictment in the name of the Attorney General or the Director. No provision is made for the conduct of proceedings on an indictment in the name of a private informant. Section 126 requires that an indictment be signed by the Attorney General, the Solicitor General or the Director, or that it be signed for and on behalf of the Attorney General or the Director by the holders of certain offices or persons otherwise authorised in writing by the Director to sign for and on his behalf.

31 Section 126 deals with the authority by which criminal proceedings are commenced in an enactment that governs the conduct of criminal trials. In the appellant’s submission, the section evinces a clear legislative purpose that non-compliance with its requirements results in invalidity.

32 In support of this contention the appellant noted the provisions of s 16, which sets out a number of defects that do not result in invalidity. The absence of signing by a person authorised to do so is not one.

33 The appellant also noted subs 126(3), which presumes the regularity of the signature on an indictment. This was said to be a further pointer to invalidity in the case of an indictment that is not signed by an authorised person since were it otherwise there would be no occasion for the presumption.

34 I accept the appellant’s submissions with respect to the effect of s 126. I consider that the legislative purpose of the provision is to ensure that criminal proceedings are properly commenced by persons having authority so to do. The absence of the signature of an authorised person on an indictment renders the indictment invalid.

35 The Crown submitted that the trial of the appellant had not been a nullity despite its acknowledgement that Ms Traill was without authority to sign the indictment. This was because proceedings against the appellant had been instituted in the District Court by the presentation of the Fox indictment, which was duly signed by a Crown Prosecutor and thereafter continued by the Favretto indictment. In the Crown’s submission the Traill indictment was in identical terms to the Favretto indictment save that the latter charged the appellant jointly with Stojkov. There was no question that a person authorised to find a bill under s 5 of the Crown Prosecutors Act 1986 for the offence with which the appellant was tried had done so and that an indictment duly signed by an authorised person was on the court file. It was submitted to be merely a procedural irregularity that the Traill indictment had been read by the clerk of arraigns and that the details of the trial had been endorsed on it.

36 In written submissions filed before the hearing (at a time when it was not known whether the appellant had been arraigned on the Favretto indictment on 6 September 2002), the Crown contended:

“In summary the situation at the time the indictment was presented by Ms Traill was that there were valid proceedings before the District Court in respect of the offence of supply not less than a large commercial quantity of heroin. An indictment signed by an authorized person (a Crown Prosecutor) for that same offence had already been presented in the District Court. The substitution of the indictment by Ms Traill did not terminate the proceedings pursuant to the indictment already signed by the authorized person. It constituted a further step in those proceedings” (WS [20]).

37 The Crown referred to the decision of this Court in R v Taylor [2003] NSWCCA 194 and in particular to paragraphs [151] and [155] of my judgment. They did so in support of a submission that proceedings had been validly instituted by the Fox indictment, and thereafter validly continued by the Favretto indictment, and in these circumstances the subsequent presentation of the Traill indictment had been an irregularity that did not operate to vitiate the trial.

38 The issue in Taylor was whether the trial judge had been right to direct the jury on self-defence in accordance with common law principles and not upon the statutory provisions introduced by Div 3 of Pt 11 of the Crimes Act 1900. The question turned on when proceedings for the offence had been instituted in the Supreme Court for the purposes of s 423(2) of the Crimes Act. Taylor had been arraigned on an indictment charging him with the offence of murder prior to the date on which the statutory provisions commenced. At his trial he was re-arraigned on an indictment in the same terms but signed by a different Crown Prosecutor. It was held that proceedings for the offence had been instituted on the occasion when Taylor was first arraigned in the Supreme Court. There was no issue as to the validity of the indictment on which Taylor had been first arraigned nor that on which he was arraigned at trial. I do not consider that Taylor assists in the determination of the question raised by this ground.

39 The Crown contended that the Favretto indictment had been presented either by being handed up in court on 6 September 2002 or by being filed in the registry in accordance with s 127 of the Act and Pt 53 cl 10D of the DCR. It bears the stamp of the registry dated 6 September 2002. The Crown acknowledged on the hearing of the appeal that it was necessary to show that the appellant had consented to the substitution of the Favretto indictment (charging him with supply) for the Fox indictment (charging him with knowingly taking part in supply) in light of the provisions of s 20 of the Act (there being no question of leave having been given by the court to the amendment, including by substitution, of the Fox indictment).

40 The provisions of s 127 of the Act and Pt 53 cl 10D of the DCR admit of the presentation of an indictment by filing it in the registry subject to service of it on the accused person or his legal representative within the time specified. It is not apparent that cl 10D is concerned with the substitution of an indictment under s 20 of the Act. That may only occur by the prosecutor with the leave of the court or the consent of the accused. There is no question of leave having been granted to the filing of the Favretto indictment in substitution for the Fox indictment. The Favretto indictment cannot be taken to have been substituted for the Fox indictment merely by it being filed in the registry.

41 In supplementary written submissions the Crown placed significant reliance on the conduct of proceedings before Holt ADCJ on 4 June 2003. The Crown Prosecutor handed up the Favretto indictment at the commencement of proceedings on that day. When the appellant’s counsel said “I am happy to go second”, the Crown submitted that it was an acknowledgment of the appellant’s consent to standing trial on the Favretto indictment (provided it did not proceed as a joint trial). Alternatively, the Crown submitted that the appellant’s consent was to be implied from his conduct from 6 September 2002 onwards, including the submissions advanced on his behalf on 4 June 2003, his plea at trial and the manner in which the trial had been conducted.

42 In the Crown’s submission, the conduct of the proceedings on 4 June 2003 involved a challenge only to the joint trial and not to the substitution of the Favretto indictment (charging the appellant with supply) for the Fox indictment (charging knowingly taking part in supply) and the appellant is to be taken to have consented to the substitution of the former indictment for the latter within the meaning of s 20. The Crown noted that Giles JA In R v Sepulveda [2003] NSWCCA 131 at [33] contemplated that an accused person’s consent for the purposes of s 20 (s 63A as it was numbered at the time of the decision in that case) may be unexpressed.

43 In submissions in reply, the appellant’s counsel put that there was no acceptable evidence that either party had turned its mind to the need for leave or consent to the substitution of the Favretto indictment and that in these circumstances consent could not be implied. The appellant submits that s 20 requires either leave or consent and that acquiescence does not amount to consent: Young PW, The Law of Consent (Sydney: Law Book Company Limited, 1986) p 5. In the appellant’s submission his consent to the substitution of the Favretto indictment is not to be inferred from his failure to object on 4 June 2003 when it was presented.

44 The appellant had been arraigned and joined issue with the Crown on an indictment that charged him with knowingly taking part in the supply of prohibited drugs. The Favretto indictment charged the appellant with the offence of supply prohibited drug. Section 25(2) of the DMTA creates two offences: the supply of prohibited drugs in an amount not less than the stated amount and knowingly taking part in the supply of prohibited drugs in an amount not less than the stated amount. They are distinct offences. The Crown did not contend to the contrary. Indeed, the Crown drew our attention to the decision of this Court in R v Deng (unreported) 17 December 1996 in which Hunt CJ at CL explained the difference between the two offences.

45 In R v Howard (1992) 29 NSWLR 242 the Court (Gleeson CJ, Sheller JA and Lee AJ) gave consideration to the circumstances in which proceedings on an indictment upon which an accused person has been arraigned may be terminated. Howard was decided before the introduction of the predecessor to s 20 to the Criminal Procedure Act and no question of the requirement for the prosecutor to obtain the Court’s leave or the consent of the accused to the amendment or substitution of the indictment arose. In that case the Court observed (at 247.E):

“The system that applies in New South Wales in relation to prosecutions is described in R v Hull (1989) 16 NSWLR 385 at 390-393. As Griffith CJ pointed out in Packer v Peacock (1912) 13 CLR 577 at 586, the procedure prescribed by law for bringing an accused person to trial is a continuous process, beginning with arrest (or summons) and ending with trial. Where a problem such as the present arises it may be necessary to distinguish between necessary legal formalities and matters of practice and procedure that are more flexible”.

46 In some cases involving procedural matters the failure to object may be taken to signify consent (see the discussion in Young at 22 – 23). The requirements of s 20 seem to me to go to necessary legal formalities and not to mere practice and procedure. The appellant was not arraigned on the Favretto indictment. I do not consider that the requirement that the accused consent to the substitution of an indictment can be said to have been met by his silence on 4 June 2003.

47 The Crown submitted that the orders of the Court made on 4 June 2003 constituted an effective grant of leave to the substitution of the Favretto indictment. No question of leave was addressed in the course of the proceedings on that day. No grant of leave was given. The only evidence concerning the making of orders on 4 June 2003 is the transcript to which I have referred. As I have noted, the Judge does not appear to have made formal orders at the conclusion of the hearing of the application.

48 The Crown placed reliance on the decision of the Court of Appeal in Jackson [1997] 2 Cr App R 497, submitting the present case to be broadly analogous to it. Jackson and a number of co-appellants appealed against conviction, contending that their trial had been a nullity because the indictment on which they were convicted was not signed as required by

s 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933. They relied upon the decision in Morais (1988) 87 Cr App R 9, in which an indictment that had not been signed was held to have been invalid and the trial on it to have been a nullity. The appellants in Jackson had been arraigned on a duly signed indictment containing three counts. The trial judge determined that the third count had been wrongly joined. He granted leave to the Crown to proceed on two fresh indictments and he directed that the indictments be signed out of time. The trial proceeded and the appellants were convicted. On appeal it was discovered that the indictment on which they had been convicted had not been signed. The Clerk of the Court, the proper officer for the purpose of signing the indictment, acknowledged that she had forgotten to do so before she arraigned the appellants.

49 Jackson seems to me to have been decided on a point that is not raised in this case. The Court found that the trial judge had of his own motion exercised the discretion conferred by the proviso to 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 to direct the proper officer to sign the indictment. Once the judge gave such a direction the proper officer ceased to have an independent jurisdiction. She was bound in law to comply with the trial judge’s direction and in these circumstances the appending of her signature was a clerical step, which the court deemed to have occurred. The Act makes no provision for a judge to direct that an authorised person sign an indictment. In any event, as I have noted, Holt ADCJ does not appear to have made an order with respect to the separate trial of the appellant on the Favretto indictment.

50 In the Crown’s submission the arraignment of an accused person is oral. It was submitted not to be to the point that the prosecutor may have handed up the Traill indictment at the commencement of proceedings on 29 July 2003. An indictment signed by an authorised person charging the appellant with the offence to which he entered his plea was on the Court file. The recording of the particulars of the trial and the sentence on the back of the Traill indictment was submitted to amount to no more than a clerical error.

51 It is not in issue that a person holding appointment as an acting Crown Prosecutor had found a bill for the supply offence. However, finding a bill and signing the indictment are distinct processes. Section 126 requires that the indictment be signed by an authorised person. To my mind there can be no question that the Traill indictment was the indictment that was presented when the appellant was called for trial on 29 July 2003 (it was the indictment that charged the appellant alone with the supply offence). The Favretto indictment may have been contained in the Court file but the Court had not granted leave for its substitution for the Fox indictment and the appellant had not consented to that course. Assuming for present purposes that the appellant by his plea to the Traill indictment consented to the substitution of this indictment for the Fox indictment, it was the Traill indictment that was the initiating process upon which the appellant joined issue with the Crown. It is the Traill indictment that constitutes the record of the Court: R v Reardon [2004] NSWCCA 197; R v Lapa (No 2) (1995) 80 A Crim R 398. In R v Stephens (1990) 48 A Crim R 323, Allen J (with whom Campbell J and Lusher AJ agreed) observed at 327:

“What, however, constitutes the record of the District Court in relation to trials upon indictment? By long practice the record is the indictment itself. It is upon the indictment that the orders are noted. That long practice is recognised by Pt 52, r 12 of the District Court Rules 1973 (NSW) which provides:
“12. Any judgement, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on the indictment in the proceedings, and that entry shall, when signed by the Judge, be the record of the judgement, order, sentence, direction or recommendation.”
The “Judge” so referred is the judge of the District Court. Nevertheless the rule recognises the practice of noting judicial orders on the indictment. The indictment is the “record” of the proceedings: Billington [1980] VR 625; Cross [1973] QB 937; 91973) 57 Cr App R 660.”

52 In supplementary submissions the Crown contended that the fact that the trial had proceeded on the Traill indictment in the circumstances that I have set out (namely that an indictment charging the appellant jointly with the supply offence had been signed by a person authorised to sign indictments) did not occasion any prejudice to the appellant. So much may be accepted but this cannot cure a defect that goes to the root of the trial. The indictment upon which this appellant was arraigned and upon which his trial proceeded was invalid. It follows from this that the trial was a nullity. The verdict and conviction must be quashed. It is a matter for the Director to decide whether to continue the proceedings that remain pending in the District Court.

53 For these reasons the orders that I propose are as follows:

1. Allow the appeal;
2. Set aside the verdict and conviction and sentence.

54 BUDDIN J: I agree with Bell J.

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