R v Ison; R v Ison

[2005] NSWCCA 321

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Ison;  Regina v Ison [2005]  NSWCCA 321

FILE NUMBER(S):
2005/1417
2005/1534

HEARING DATE(S):            6 September 2005

JUDGMENT DATE: 06/09/2005

PARTIES:
Regina v Kevin Shane Ison
Regina v Joseph Ison

JUDGMENT OF:      McClellan CJatCL Grove J Smart AJ   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        02/41/0182

LOWER COURT JUDICIAL OFFICER:     Tupman DCJ

COUNSEL:
D. Arnott (Crown)
R. Button (Appellant K.S. Ison)
M. Austin (Appellant J. Ison)

SOLICITORS:
S. Kavanagh (DPP)
Tony Papac & Associates (K.S. Ison)
M. Klees & Associates (J. Ison)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
INDICTMENT SIGNED BY PERSON NOT AUTHORIZED SO TO DO PURSUANT TO STATUTE
TRIAL THEREFORE A NULLITY
EXERCISE OF DISCRETION TO ORDER NEW TRIAL

LEGISLATION CITED:

DECISION:
APPEAL ALLOWED
CONVICTIONS AND SENTENCES QUASHED
NEW TRIALS ORDERED.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1417
2005/1534

McCLELLAN CJ at CL
GROVE J
SMART AJ

6 September 2005

REGINA v     KEVIN SHANE ISON
REGINA  v  JOSEPH ISON

Judgment

1. McCLELLAN CJ AT CL:   Grove J will deliver the first judgment.

2. GROVE J:  Two appeals are before the Court by Kevin Ison and Joseph Ison. For reasons which will appear, it is convenient to deal with both appeals together.  Each of them was tried together with other accused before Tupman DCJ and a jury and convicted on a count of maliciously inflicting grievous bodily harm with intent to do so.  There is no need for present purposes to outline the facts alleged against the appellants.

3. The short point is raised that the trial was a nullity by reason of a fundamental defect in the indictment which was signed by a person other than a person authorised in accordance with the statute in such case made and provided.  This Court (differently constituted) has already dealt, in R v Janceski [2005] NSWCCA 281, with the identical point in relation to the indictment. It follows from that authority that it must be determined that the trial of these two appellants was a nullity.

4. The potential outstanding issue is whether in the exercise of its discretion this Court should order a new trial.  Neither counsel for the appellants suggests any reason why this Court should not exercise its discretion so to order. The consequence that the convictions are not upheld does not follow some defect such as insufficiency of evidence or the like, and the principles upon which this Court will be guided are well established in cases such as King v The Queen 1986 161 CLR 423 and Gerakiteys v The Queen 1984 153 CLR 317.

5. It is noted that these appellants were the subject of a trial previous to the one presently under appeal in which the jury was unable to agree.  That matter having been noted, it seems to me that no reason is shown for not making an order for a new trial bearing in mind the highly technical basis upon which the current convictions are being quashed. 

6. I propose that in each appeal, the appeal be allowed, convictions and sentences quashed and a new trial ordered.

7. McCLELLAN CJ AT CL:  I agree with Grove J.

8. SMART AJ:  I also agree.

9. McCLELLAN CJ AT CL:  The orders of the Court will be as Grove J indicated.

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LAST UPDATED:            13/09/2005