R v Swansson - [2007] NSWCCA 67

No judgment structure available for this case.

Reported Decision: 168 A Crim R 263

Appeal Outcome: Special leave refused by the High Court - 15 June 2007

New South Wales

Court of Criminal Appeal

CITATION: David Anthony SWANSSON v REGINA; Peter James HENRY v REGINA [2007] NSWCCA 67
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 February 2007

JUDGMENT DATE:
21 March 2007

JUDGMENT OF: Spigelman CJ at 1; McClellan CJ at CL at 83; Sully J at 96; Simpson J at 120; Howie J at 181

DECISION: In the matter of Henry; 1 Appeal allowed; 2 Convictions and sentences quashed; 3 A new trial be held; In the matter of Swansson; 1 Leave to add additional ground of appeal granted.

CATCHWORDS: CRIMINAL LAW – Appeal – New South Wales - Powers of the appellate court to hear a matter – Whether a null trial means the trial has no legal effect and is not subject to an appeal – whether “convicted on indictment” in s5(1) Criminal Appeal Act 1912 refers only to a valid conviction on a valid indictment - - CRIMINAL LAW – Appeal – New South Wales – Miscarriage of justice – power to dismiss an appeal where no substantial miscarriage of justice has occurred – proviso – Criminal Appeal Act 1912, s6(1) - CRIMINAL LAW - Jurisdiction, practice and procedure - Prosecution - Filing of information, presentment or indictment - one indictment, one jury – where two co-accused tried on two indictments – where one accused tried on two indictments - WORDS & PHRASES – “nullity”

LEGISLATION CITED: Criminal Appeal Act 1907 (UK)
Criminal Appeal Act 1912; s5(1); s6(1); s8(1)
Criminal Appeal Rules 1952; r4
Criminal Code Act 1995 (Cth); s11.5
Criminal Procedure Act 1986; s21; s23; s46(2); s129; s130; s164
Customs Act 1901 (Cth); s233B(1)(d)
District Court Act 1973; s166
Justices Act 1902

CASES CITED: Abdul Rahman v The King-Emperor (1926) LR 54 Ind App
Attorney-General (NSW) v Mayas Pty Limited (1988) 14 NSWLR 342
Berowra Holdings Pty Limited v Gordon (2006) 80 ALJR 1214
Bounds v R (2006) 228 ALR 190
Calvin v Carr [1980] AC 574
Crane v Director of Public Prosecutioons [1920] 3 KB 236
Crane v Director of Public Prosecutions [1921] 2 AC 299
Darkan v R (2006) 80 ALJR 1250
Deveigne v Askar [2007] NSWCA 45
Dinsdale v The Queen (1999) 202 CLR 321
Director of Public Prosecutions (NSW) v PM (2006) 164 A Crim R 151
Fleming v The Queen (1998) 197 CLR 250
Mackey v The Queen (1977) 136 CLR 465
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Munday v Gill (1940) 44 CLR 38
Nudd v The Queen (2006) 80 ALJR 614
Parisienne Basket Shoes Pty Limited & Ors v Whyte (1937) 59 CLR 369
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Posner v Collector for Interstate Destitute Persons (Vic) (1947) 74 CLR 461
R v Brown; R v Tran (2004) 148 A Crim R 268
R v Clunas (1992) 70 CCC (3d) 115
R v Cockrell [2005] 2 Qd R 448
R v Dennis; R v Parker [1924] 1 KB 867
R v Domican (No 3) (1990) 46 A Crim R 428
R v Halmi (2005) 62 NSWLR 263
R v Harris (No 2) [1990] VR 305
R v Hoard; R v Mihilovic; R v Morgan; R v J (1992) 29 NSWLR 242
R v Hull (1989) 16 NSWLR 385
R v Janceski [2005] NSWCCA 281
R v Khan (1984) 12 CCC (3d) 193
R v Lansdell (unreported NSWCCA, 22 May 1995)
R v Landy [1943) VLR 73
R v Marsland (unreported NSWCCA, 17 July 1991)
R v McDonnell (1928) 20 Cr App R 163
R v Olivo (1942) 28 Cr App R 173
R v Parker [1977] VR 22
R v Phillips (1983) 8 CCC (3d) 118
R v Rose [1982] AC 822
R v Rudkowski (unreported NSWCCA, 15 December 1992)
R v Tagaras (unreported NSWCCA, 9 April 1974)
Russell v Bates (1927) 40 CLR 209
United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323
Weiss v The Queen (2005) 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365

PARTIES: David Anthony Swansson (Appellant)
Regina (Respondent)
Peter James Henry (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/1953; 2006/1742

COUNSEL: H Dhanji (Appellant Henry)
P Byrne SC, P Hogan (Appellant Swansson)
W Abraham QC, L Crowley (Respondent)

SOLICITORS: D B Stevens, Director of Public Prosecutions for the Commonwealth (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1410

LOWER COURT JUDICIAL OFFICER: Wood DCJ

LOWER COURT DATE OF DECISION: 10 February 2006

- 1 -

2006/1953
2006/1742

SPIGELMAN CJ
McCLELLAN CJ at CL
SULLY J
SIMPSON J
HOWIE J

David Anthony SWANSSON v REGINA

PETER JAMES HENRY v REGINA

Facts

The two Appellants were convicted after separate trials in the District Court for offences arising from the importation into Australia of methylendioxymethamphetamine (MDMA).

The Appellant Henry was charged and convicted of a single offence under s233B(1)(d) of the Customs Act 1901 (Cth) and s11.5 of the Criminal Code Act 1995 (Cth) for conspiring to import into Australia a commercial quantity of MDMA being, 31.95 kilograms, with a pure weight of 10.443 kilograms. He was tried with four other accused and each accused was arraigned on a separate indictment.

The Appellant Swansson was charged under s233B of the Customs Act 1901 (Cth) and s11(1) of the Criminal Code Act 1995 (Cth) for aiding, abetting, counselling and procuring the commission of the above offence. He was tried with two other accused and each of them was arraigned on a separate indictment. The Appellant Swansson was further arraigned under a second indictment for the State offence of knowingly taking part in the supply of a commercial quantity of MDMA.

The Appellants submit in a common ground of appeal that the trials and convictions of each of the accused, including each of the Appellants, were a nullity as the trials proceeded on more than one indictment.

The Crown accepts that the “one indictment, one jury” principle is longstanding. The Crown submits that it is merely a rule of practice, rather than a rule of law. It submits that no coherent justification for the rule appears in the authorities and, accordingly, it contends that the rule plays no relevant role in the modern criminal justice system.

Alternatively the Crown submits that contravention of the rule does not result in the proceedings being a nullity in the strict sense. It asserts that the Court can invoke the proviso and that, on the facts of the case, there was no substantial miscarriage of justice.

The Appellant Swansson asks the Court to proceed to hear his other grounds of appeal.

Held

One indictment one jury

Per Spigelman CJ, McClellan CJ at CL, Sully J agreeing; and per Simpson and Howie JJ.
1 The proposition that there can be only one indictment in any one criminal proceeding is a long established rule of criminal procedure. This Court should apply the forceful, albeit obiter, reasoning of the High Court. [35], [83], [98], [151], [182].

Munday v Gill (1940) 44 CLR 38 applied.
R v Landy [1943] VLR 73; R v Tagaras (unreported NSWCCA, 9 April 1974); R v Harris (No 2) [1990] VR 305; R v Howard (1992) 29 NSWLR 242; R v Janceski (2005) 64 NSWLR 10; NSWCCA 281; Crane v Director of Public Prosecutions [1921] 2 AC 299 referred to.
R v Clunas (1992) CCC (3d) 115 not followed.

2 The rule has practical value and should be retained. [105]-[106], [184]-[187].
3 The “rule” has not been explained and may not be inflexible. [147].

Crane v Director of Public Prosecutions [1921] 2 AC 299; Crane v Director of Public Prosecutions [1920] 3 KB 236; R v Dennis; R v Parker [1924] 1 KB 867; R v McDonnell (1928) 20 Cr App R 163; R v Landy [1943] VLR 73; R v Harris (No 2) [1990] VR 305; R v Howard; R v Mihilovic; R v Morgan; R v J (1992) 29 NSWLR 242; R v Janceski (2005) 64 NSWLR 10; R v Tagaras (unreported NSWCCA, 9 April 1974) considered.

Application of the proviso

Per Spigelman CJ and McClellan CJ at CL
4 “Convicted on indictment” under s5(1) of the Criminal Appeal Act 1912 is not confined to valid convictions on a valid indictment. [46], [68], [83]. It is open to this Court to apply the proviso in s6(1) of that Act, notwithstanding the characterisation of the proceedings as a “nullity”. [46], [50], [83].

Crane v Director of Public Prosecutions [1921] 2 AC 299 applied.
Calvin v Carr [1980] AC 574; Russell v Bates (1927) 40 CLR 209; R v Parker [1977] VR 22; R v Cockrell [2005] 2 Qd R 448 referred to.

5 The observations in Munday v Gill about the significance of the “one indictment, one jury” rule are of such force and clarity that the Court should hold that the defect is of a fundamental character and the proviso has no application. [52], [54], [83].

Per Sully J
6 The proviso cannot authenticate the penal consequences of a trial process that has been a nullity for failure to observe a fundamental norm of a fair, lawful criminal trial upon indictment. [109].

Wilde v The Queen (1988) 164 CLR 365; Darkan v The Queen (2006) 80 ALJR 1250 considered.
Weiss v The Queen (2005) 224 CLR 300; Nudd v The Queen (2006) 80 ALJR 614 distinguished.

Per Simpson J dissenting, Howie J agreeing
7 Where there is a conviction following a trial which is so procedurally irregular as to be a nullity the proviso cannot be applied. [169], [174], [188]-[189].

Wilde v The Queen (1988) 164 CLR 465 followed.
R v Janceski (2005) 65 NSWLR 10 considered.

Power to deal with other grounds of appeal

Per Spigelman CJ, Sully JJ concurring
8 The use of terminology such as “nullity” must be approached with some caution. The consequences of a proceeding being characterised as a “nullity” varies from one context to another. [61]-[66], [119].

Posner v Collector for Interstate Destitute Persons (Vic) (1947) 74 CLR 461; Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Berowra Holdings Pty Limited v Gordon (2006) 80 ALJR 1214; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; Deveigne v Askar [2007] NSWCA 45 referred to.

9 Even in the case of proceedings, which have been authoritatively characterised as a “nullity”, s8 of the Criminal Appeal Act applies and empowers this Court to order a new trial. [119].

Per McClelland CJ at CL
10 The appeal to this Court cannot be confined to the ground of multiple indictments. [94].

Crane v Director of Public Prosecutions [1921] 2 AC 299; Munday v Gill (1940) 44 CLR 38; Russell v Bates (1927) 40 CLR 209 applied.
Parisienne Basket Shoes Pty Limited & Ors v Whyte (1937) 59 CLR 369 referred to.

Per Spigelman CJ, McClellan CJ at CL and Sully J agreeing
11 The Court should consider other grounds of appeal, which could lead to a verdict of acquittal. [72]-[74], [94], [119].

Crane v Director of Public Prosecutions [1921] 2 AC 299; Russell v Bates (1927) 40 CLR 209; R v Olivo (1942) 28 Cr App R 173 applied.

Per Simpson J dissenting, Howie J agreeing

12 It is not open to the Court to rule upon the remaining grounds of appeal [176], [191].

Orders

Per Spigelman CJ, McClellan CJ at CL and Sully J agreeing
In the matter of Henry:

1 Appeal allowed.

2 Convictions and sentences quashed.
3 A new trial be held.

In the matter of Swansson:

1 Leave to add additional ground of appeal granted. [82], [83], [96].

Per Simpson and Howie JJ agreeing

Quash each conviction. [180], [192].

2006/1953
2006/1742

SPIGELMAN CJ
McCLELLAN CJ at CL
SULLY J
SIMPSON J
HOWIE J
Wednesday 21 March 2007

David Anthony SWANSSON v REGINA

PETER JAMES HENRY v REGINA

Judgment

1 SPIGELMAN CJ: The two Appellants were convicted after trial in the District Court of offences arising from the importation into Australia of prohibited imports, being 31.95 kilograms of methylenedioxymethamphetamine (MDMA) with a pure weight of 10.443 kilograms.

2 Ten persons were allegedly involved in the conspiracy to import the drug. Two trials were conducted, involving eight accused. One trial included the Appellant Henry and four other accused. The Appellant Swansson was tried separately, together with two other co-accused.

3 In both proceedings each of the accused, including each Appellant, was arraigned upon a separate indictment.

4 The Appellant Henry proceeds on a single ground of appeal as follows:

“The trial and conviction of the appellant are nullities as the trial proceeded on more than one indictment.”

5 The Appellant Swansson propounds a number of grounds of appeal, and seeks leave to add a ground in effectively identical terms to that of the Appellant Henry.

6 In each case the ground is based on the fact that separate indictments were presented for each of the accused, including each Appellant, in the two trials.

7 The Appellant Henry was charged and convicted of a single offence under s233B(1)(d) of the Customs Act 1901 (Cth) and s11.5 of the Criminal Code Act 1995 (Cth), to the effect that he conspired with certain named persons to import a commercial quantity of MDMA into Australia.

8 The Court has before it the indictments presented against the co-accused in each of the trials. All of these indictments, other than in the case of the Appellant Swansson, are in the same form as the indictment in the case of the Appellant Henry.

9 The charge against the Appellant Swansson was different to the other charges in that it was based on s233B of the Customs Act 1901 (Cth) and s11.(1) of the Criminal Code Act 1995 (Cth). He was alleged to have aided, abetted, counselled and procured the commission of an offence by certain named persons, who attempted to import a commercial quantity of MDMA into Australia.

10 There was a second indictment presented in the case of the Appellant Swansson. The Court was informed that this was an alternative charge. This indictment was for a State offence, namely that he knowingly took part in the supply of an amount of MDMA, being not less than the commercial quantity for that drug.

11 The proposition that there can be only one indictment in any one criminal proceeding is long established. It was recently accepted as correct in a five judge bench of this Court. (See R v Janceski (2005) 65 NSWLR 10; [2005] NSWCCA 281 at [86], [187] and [223].) The relevant authorities are longstanding, have never been questioned and have formed the basis of virtually invariable prosecutorial practice. (See Munday v Gill (1940) 44 CLR 38 esp at 54-57, 75-76, 86-88; R v Landy [1943] VLR 73 at 73-75; R v Tagaras (unreported, NSWCCA, 9 April 1974); R v Harris (No 2) [1990] VR 305; R v Howard (1992) 29 NSWLR 242 at 247-248.) The rule of criminal procedure was succinctly stated in Tagaras as: “one indictment, one jury”.

12 On this appeal the Crown seeks to characterise the rule as merely a rule of practice, rather than as a rule of law. It submits that no coherent justification for the rule appears in the authorities and, as the rule plays no relevant role in what was described as the “modern” criminal justice system, it ought to be jettisoned. Alternatively, it submits that contravention of the rule does not result in the proceedings being a nullity in a strict sense. It submits that the Court can invoke the proviso and, on the facts of this case, there was no miscarriage of justice.

13 There are two kinds of situations in which the issue before the Court could arise. The first is where one person is tried on more than one indictment. The second is where multiple offenders are tried together on separate indictments. The present appeals involve both kinds of situations.

14 The common law rule of criminal procedure – “one indictment, one jury” – is accepted in texts and authorities of such long standing that there has been no systematic statement designed to explain its origins or to support its continued significance. A variety of reasons have been proffered from time to time and, as the Crown submitted, statutory provisions and changes in other aspects of criminal procedure indicate that such reasons no longer carry conviction. I do not find it necessary to canvas these reasons.

15 In its contemporary application, it is sufficient to refer to the clear statements of the existence of the rule in Crane v Director of Public Prosecutions [1921] 2 AC 299 where two offenders were tried together on separate indictments.

16 Lord Atkinson said at 321:

“ … [I]t is, I have always understood, elementary in criminal law, that the issues raised by those two pleas cannot be tried together. …

The appellant … was never … properly arraigned on the indictment found against him. He never pleaded to that indictment, the jury who found him guilty were never sworn to try him separately, and had no jurisdiction to find against him the verdict they have found. The whole proceedings were, in my view, … a mis-trial and a nullity.”

17 Similarly Lord Sumner said at 331:

“ … [T]here was a miscarriage of justice (for such it is to deprive an accused person of the protection given by essential steps in criminal procedure) …”

18 Crane was unanimously accepted as authoritative by the High Court in Munday v Gill, supra.

19 Gavin Duffy and Starke JJ said at 76:

“… [I]n a trial upon indictment the jury is, and can only be, impanelled and sworn to try the issues of the particular indictment – to find whether the accused be guilty or not guilty upon that indictment and no other. Therefore the simultaneous trial of several indictments is impossible, and the decision of the House of Lords that such a trial was a nullity and without jurisdiction inevitably follows.”

20 To the same effect are the observations of Dixon J who, after emphasising at 86-87 the solemn significance of trials on indictment, said at 87:

“ … [T]here is no way allowed by law of putting in charge of one jury at one time two or more prisoners arraigned upon separate indictments. The jurors are specially chosen for the single purpose of trying one indictment or such of the prisoners arraigned on one indictment as they may have in charge. It is, therefore, not surprising that the Court of Criminal Appeal decided that it was not competent for a Court holding criminal inquests to depart from this method of trial and try by one jury simultaneously prisoners separately indicted.”

21 His Honour referred, in this context, to the judgment of the Privy Council in Abdul Rahman v The King-Emperor (1926) LR 54 Ind App where the following was said at 104:

“ … [T]heir Lordships … wish it to be understood that no serious defect in the mode of conducting a criminal trial can be justified … by the consent of the advocate of the accused.”

22 I should also note the judgment of Isaacs CJ in Munday v Gill. His Honour dissented, but only in that, unlike the majority, he would apply the rule to the trial of summary offences. His Honour’s reasoning on the strength and significance of the departure from the “one indictment one jury” rule was equally as emphatic as the judgments of the majority. Isaacs CJ identified the relevant issue at 54 in terms of whether or not there had been a “breach of a fundamental principle of justice”. He also referred with approval to Lord Atkinson’s judgment in Crane. His Honour added at 55:

“[B]eing a ‘nullity’ as to legal efficacy when challenged, it is an inescapable corollary that it is impossible to hold the conviction can be supported by eliminating the vitiating circumstances and considering the case on the residue.”

23 His Honour concluded at 60:

“If a breach of a fundamental principle of justice occurs, and so gives rise to a want of jurisdiction to proceed further, there is, of course, an irregularity in one sense, but in the relevant sense it is more than an irregularity, it is a nullity, and must, if challenged, be set aside unless there is statutory provision to the contrary.”

24 With respect to the Appellants’ submission that this Court should follow the reasoning in Munday v Gill which was, relevantly, unanimous, Ms Abrahams QC, who appeared for the Crown, submitted that the references were not part of the ratio decidendi of the case and, accordingly, this Court is not technically bound to follow it. This submission is based on the proposition that the issue before the court in Munday v Gill was whether the rule applied to multiple informations in summary proceedings. The Court assumed, but did not technically decide, that the rule applied to a trial on indictment.

25 It is the case that there is no authority technically binding on this Court with respect to this rule. That is because the rule is of such long standing, and the practice has been invariably followed for so long, that the occasion to determine the matter authoritatively has simply not arisen in Australia. The Crown asks this Court to adopt the approach of Canadian Courts which have, in a line of authority to which I will refer below, determined that the rule will no longer be followed in that jurisdiction.

26 The rule is well established. The case put forward for abolishing it is simply that it is a technicality which has no contemporary significance. On the other hand there has been no suggestion that the rule causes any difficulty other than, perhaps, the inconvenience that may arise when, as appears to be the case here, the prosecution overlooks it.

27 Legislation has, over a long period of time, abolished many of the technicalities hitherto associated with indictments. In this State, such intervention was consolidated and reinforced by the Criminal Procedure Act 1986. That Act clearly proceeds on the assumption that the rule exists as a rule of the common law of criminal procedure.

28 There is, for example, no provision in the Criminal Procedure Act for the joint trial of separate indictments. This was regarded as determinative by the Full Court of the Supreme Court of Victoria when upholding the rule in Landy supra at 74-75. This contrasts with the detailed, express provision in s21 for ordering separate trials on matters raised on the one indictment.

29 Similarly, s23 of the Criminal Procedure Act, which limits to three the number of counts that can be placed on the same indictment, would have no, or limited, work to do if separate indictments could be tried together.

30 Further, s129 of the Criminal Procedure Act, which requires an indictment to be presented within four weeks of committal, does not envisage multiple indictments presented at different times.

31 Finally, s164 of the Criminal Procedure Act, which expressly permits a joint trial for persons separately indicted for perjury or false swearing, would be entirely unnecessary.

32 The Crown relied on the Canadian Supreme Court decision in R v Clunas (1992) 70 CCC (3d) 115, which overruled longstanding Canadian authority based on Crane and which had been affirmed less than ten years before by that Court in R v Phillips (1983) 8 CCC (3d) 118 and R v Khan (1984) 12 CCC (3d) 193.

33 It is pertinent to note that, until Clunas, Canadian authority applied the rule to both trials on indictment and by information. That has not been the Australian rule since Munday v Gill and, in this respect, Australian and Canadian case law has long since diverged.

34 It appears from the reasoning of the Supreme Court of Canada (see especially Phillips at 125 and Clunas at 116-117) that Canadian jurisprudence permits that Court, as a final court of appeal, to jettison a long standing rule of the common law on the basis that the rule can be characterised as a “technicality” which can be said not to serve “a real purpose”. I do not accept that Australian jurisprudence has developed in the same way.

35 In any event, such change, if any, is not appropriate to be undertaken by an intermediate court of appeal. In view of the force of the observations in Munday v Gill, which I have set out above, even if obiter, this Court should apply the reasoning. It this position is to change, it should be left to the High Court to do it.

36 In the alternative to the submission that the rule should be discarded, the Crown submitted that it is open to this Court to apply the proviso. The Crown did not seek to rely on r4 of the Criminal Appeal Rules 1952.

37 The Crown relied on a range of factors which, it is submitted, characterise the present proceeding so that the application of the rule is a mere technicality and that, accordingly, there was no miscarriage of justice.

38 The following matters, which were not contested by the Appellants in written submissions in reply, were relied upon by the Crown:

(1) Each of the indictments was valid;

(2) Each of the accused was arraigned on his respective indictment and the jury was empanelled to try each of the accused on that indictment;

(3) All parties (including the jury) were aware that there were separate indictments;

(4) The jury was informed at the outset that this was, in effect, five trials;

(5) No objection was taken to the course adopted;

(6) The accused could properly have been the subject of a joint indictment;

(7) In the circumstances of this case it was appropriate that there be a joint trial of the accused (or rather two joint trials);

(8) Proper directions were given to the jury as to the evidence admissible against each accused;

(9) The learned trial judge separately summed up the case to the jury for each accused;

(10) There is no suggestion that either Appellant was in any way prejudiced by the procedure adopted.

39 In the present proceedings, on the above analysis, there has been a breach of a common law rule of criminal procedure. This has occurred with respect to the exercise by the District Court of a statutory jurisdiction with respect to indictable offences. (See District Court Act 1973 s166 and Criminal Procedure Act 1986 s46(2) and s130.) Chapter 3 of the Criminal Procedure Act sets out detailed requirements for Indictable Procedure. As noted above, the Chapter appears to assume, without enacting, the common law rule of criminal procedure that has not been observed in the present case.

40 The relevant case law, notably Crane and Munday v Gill, describes this failure in terms of “nullity”. I will discuss this characterisation further below. For present purposes, it is sufficient to say that such characterisation does not determine whether the proviso can be applied.

41 Over recent years the High Court has emphasised in a number of judgments the central significance of directing attention to the specific words of the statute creating a right of appeal in a criminal case. (See e.g. Fleming v The Queen (1998) 197 CLR 250 esp at [7]-[12]; Dinsdale v The Queen (1999) 202 CLR 321 esp at [3]; Weiss v The Queen (2005) 224 CLR 300 esp at [9]-[10] and [31]-[33], noting particularly the references set out at fn 49.)

42 Section 5(1) of the Criminal Appeal Act 1912 provides that “a person convicted on indictment” may appeal from a conviction on a question of law and may do so without leave. A ground of appeal which invokes a common law rule of criminal procedure is an appeal of this character.

43 Section 6(1) of the Act, which sets out the basis on which this Court can allow an appeal against conviction and which contains the proviso, applies “on any appeal under section 5(1)”.

44 The issue before the Court can be expressed in terms of whether the words “convicted on indictment” in s5(1) refer only to a valid conviction or a valid indictment. If they do, then this Court would not have jurisdiction to hear the matter and the Appellants would need to institute proceedings in the Supreme Court invoking its supervisory jurisdiction to quash the conviction. This case has not been argued in these terms. However, I am quite satisfied that this Court does have jurisdiction.

45 One purpose of the Criminal Appeal Act is to ensure that this Court will hear all appeals in which errors of laws are alleged to have occurred in the course of criminal proceedings. There is no reason to read the reference to a “person convicted on indictment” in a restrictive manner.

46 It is now well established that a statutory right of appeal will be interpreted to extend to decisions that can be described as “void” or as a “nullity”. The case usually referred to as the contemporary authority on this issue is Calvin v Carr [1980] AC 574. However, one of the cases applied in Calvin v Carr at 590-591 was the House of Lords judgment in Crane. It is determinative for present purposes.

47 Lord Atkinson said in Crane supra at 323:

Criminal Appeal Act,

48 Similarly, Lord Sumner said at 331 that, even though there was “in truth no trial at all”, Crane was a person “convicted on an indictment”.

49 This aspect of the reasoning in Crane was applied by the High Court in Russell v Bates (1927) 40 CLR 209 at 213-214, albeit in the context of an appeal under the Justices Act 1902, but which is not relevantly distinguishable for purposes of application to the Criminal Appeal Act. (See also R v Parker [1977] VR 22 at 29-30, 43; R v Cockrell [2005] 2 Qd R 448 at [12]-[15], [27]-[32].)

50 On these authorities it is open to this Court to apply the proviso, notwithstanding the characterisation of the proceedings in Crane and Munday v Gill as a “nullity”.

51 The High Court has recently determined the contemporary approach to the application of the proviso. The recent authorities emphasise that an appellate court must make its own independent assessment and determine whether the accused was proved to be guilty beyond reasonable doubt. Nevertheless, the High Court continues to acknowledge that there are circumstances in which, even though an appellate court was so persuaded, it should still allow the appeal and order a new trial. (See e.g. Weiss v The Queen (2005) 224 CLR 300 at [45]-[46]; Nudd v The Queen (2006) 80 ALJR 614 at [6]-[7], [35]-[36]; Darkan v The Queen (2006) 80 ALJR 1250 at [94] and c/f [139]-[140].)

52 The reasoning in this recent line of cases does suggest that the range of fundamental defects, of a character that would prevent the application of the proviso even where the Court is satisfied to the requisite standard of the Appellant’s guilt, may be more restrictive than in the past. Nevertheless the Court has not overruled earlier authorities such as Wilde v The Queen (1988) 164 CLR 365 at 373, where the joint majority judgment of Brennan, Dawson and Toohey JJ said:

“The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso …”

Nudd

53 Uninstructed by authority, I would have concluded that the error on which the present appeals are based could attract the proviso. The surrounding circumstances identified in the Crown submissions which I have set out above, suggest that there was no miscarriage of justice in the proceedings.

54 However, in the absence of relevant guidance from the High Court on what departures from rules of criminal procedure “go to the root of the proceedings”, to use the terminology from Wilde quoted above, an intermediate court of appeal should be guided by the reasoning in Munday v Gill which I have set out above. The observations in that case about the significance of the “one indictment, one jury” rule are of such force and clarity, that this Court should hold that the defect is of the requisite fundamental character. If that position is to change, and I see much force in the Crown’s contention, it must be left to the High Court to make the change.

55 I should, however, state that I have not undertaken the detailed review of the evidence which Weiss requires this Court to undertake, in order to determine whether this Court is satisfied beyond reasonable doubt of the guilt of the Appellants. My analysis of the issue of law does not require this task to be undertaken.

56 By reason of the conviction appeal in the case of Swansson the Court has before it the materials and submissions that would enable the Court to undertake the detailed review of the evidence as indicated in Weiss. In the case of Henry however, there is no such appeal and no such materials or relevant submissions are before the Court.

57 The relevant passage in Weiss at pars [41]-[47] is open to the interpretation that this Court must “[make] its own individual assessment of the evidence” [41] whenever the proviso is invoked. However, Weiss itself was concerned with a situation in which the relevant error “might have affected the jury’s” decision-making processes [36]. No such effect could be, or was, suggested with respect to the defect in the present case.

58 As presently advised, in my opinion, the Court is in a position to apply the proviso without the detailed investigation set out in the paragraphs of Weiss I have referred to, by reason of the fact that the relevant “miscarriage of justice” is not of a kind which could have impinged in any way on the jury’s deliberations. However, this matter was not the subject of submissions.

59 As noted above, the Appellant Swansson relies on other grounds of appeal as well as the challenge to the multiplicity of indictments. An issue has arisen as to whether this Court can deal with these other grounds if it were to uphold the appeal on the basis considered above.

60 As noted above, the judgments in Crane and Munday v Gill, reflecting a number of authorities, assert that a criminal trial that has been conducted in contravention of the rule of criminal procedure here under consideration is a “nullity”. Notwithstanding the force of these remarks, in my opinion, this Court should not proceed on the basis that the cases are authority for the proposition that a trial conducted in breach of this rule is to be treated as if there had not been a trial at all. Rather, the position is that there has not been a trial in accordance with law.

61 The use of terminology such as “nullity” and, in the administrative law context, the cognate distinction between “void” and “voidable” decisions, where appearing in judgments, must be approached with some caution. (See generally F C Hutley “The Cult of Nullification in English Law” (1978) 52 ALJ 8.)

62 This was recognised as long ago as 1946 by Dixon J in Posner v Collector for Interstate Destitute Persons (Vic) (1947) 74 CLR 461, where his Honour said at 483:

“ … [W]hen a party is entitled as of right upon a proper proceeding to have an order set aside or quashed, he may safety ignore it, at all events, for most purposes. It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so. …

When there has been a failure of the due process of law at the making of an order, to describe it as void is not unnatural. But what has been said will show that, except where upon its face an order is bad or unlawful, it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity.”

63 To similar effect are the observations, albeit in an administrative law context, of Gaudron and Gummow JJ in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [46]:

“In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as ‘void’, ‘voidable’, ‘invalid’, ‘vitiated’ or, even, as ‘nullities’. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision.”

64 This passage was referred to with approval in the joint judgment of the Court in Berowra Holdings Pty Limited v Gordon (2006) 80 ALJR 1214; [2006] HCA 32, where the Court was concerned with the effect of a statutory precondition for the institution of proceedings in a court. In that context the joint judgment noted:

Bhardwaj

,

65 As Professor Mark Aronson pointed out in his article “Nullity” (2004) 40 AIAL Forum 19 at 20:

“Nullity is both a remedy and a legal consequence, or more accurately if less precisely, a bundle of legal consequences.”

66 The consequences of a proceeding being characterised as a “nullity” varies from one context to another. For example, in the case of a court of statutory jurisdiction, such as the District Court, an order of the court may be accurately described as a “nullity”, in the strict sense, for purposes of determining whether or not proceedings for contempt can be based on such an order. (See Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 esp at [27]-[28] and [55].)

67 The present context is concerned with determining whether this Court can exercise its statutory power to order a new trial or, more particularly, whether it can consider the other grounds of appeal with a view to deciding that it should not exercise the discretion to order a new trial.

68 The relevant power to order a new trial is s8(1) which, like s5(1) considered above, refers to “an appeal against a conviction on indictment”. For the reasons I have given above with respect to s5(1), the words “conviction on indictment”, do not refer to a valid conviction or a valid indictment.

69 Again, this very point was determined in Crane. Notwithstanding the express finding that the trial was a “nullity”, the House of Lords ordered a new trial. Indeed, it adopted a somewhat strained process of reasoning to reach this conclusion.

70 At the time Crane was decided, the English legislation provided only for a verdict of acquittal if an appeal were allowed (i.e. the equivalent of s6 of the NSW Act). There was no express power to order a new trial (i.e. no equivalent of s8 of the NSW Act). The House of Lords held that the court could continue to exercise the pre-existing jurisdiction of the Court of Crown Cases Reserved to order a new trial by issuing a writ of venire de novo. (See Cooke “Venire de Novo” (1955) 71 LQR 100; R v Rose [1982] AC 822 at 831-833.)

71 If anything, the position is even clearer where, as here, there is an express statutory power to be interpreted. In my opinion, even in the case of proceedings which have been authoritatively characterised as a “nullity”, s8 of the Criminal Appeal Act applies and empowers this Court to order a new trial.

72 The Crown submitted that if this Court concluded that the trial was a nullity then it could not proceed to deal with the appeal. It submitted that this was in accordance with what had occurred in earlier cases, citing R v Brown; R v Tran (2004) 148 A Crim R 268 and R v Halmi (2005) 62 NSWLR 263. It acknowledged that there were observations to the contrary in Janceski. Indeed, in that case the court formally ordered a new trial, which is clearly inconsistent with the Crown's submission. The relevant case law was not considered in those authorities. In my opinion, the reasoning in Crane and the decision of the High Court in Russell v Bates are determinative on this issue.

73 Whether or not the writ of venire de novo should issue was held to be discretionary, even where the proceedings were a nullity by reason of the existence of multiple indictments. (R v Olivo (1942) 28 Crim App Rep 173.) The position is the same under s8 of the Criminal Appeal Act.

74 Notwithstanding the fact that the Appellant Swansson should be successful on his additional ground of appeal, this Court should consider his other grounds of appeal which could lead to a verdict of acquittal.

75 Since writing the above the Court of Appeal has delivered judgment in the case of Deveigne v Askar [2007] NSWCA 45. In that case McColl JA considers at some length the authorities concerning “nullity”. (See esp at [82]-[96] and [127]-[136]; see also Giles JA at [8]-[9].)

76 As her Honour states at [82] the description of a proceeding as a “nullity” states a conclusion. Similarly, as Giles JA points out at [8], such a characterisation is often “not particularly helpful”.

77 In the present case the issue that arises is the interpretation of provisions of the Criminal Appeal Act, to which the use of the terminology of “nullity” in the judgments in Munday v Gill was not directed.

78 In view of their express reliance on Crane, in my opinion, their Honours were not using the terminology of “nullity” in the sense that there has not been a trial at all but, as I have noted at [60] above, that there has not been a trial in accordance with law.

79 Nothing in the analysis of McColl JA on the question of nullity is such as to give rise to any doubt in my mind that this matter is determined by the reasoning of the High Court in Russell v Bates and of the English Court of Appeal in Olivo.

80 The ground of appeal which seeks to agitate this matter was not contained in the original Notice of Appeal of Swansson. This Court has to grant leave to amend the Notice. At the commencement of the trial the Crown indicated that it would have no objection to the amendment. Nevertheless, the amendment was not formally made by the Court.

81 The Court indicated at the conclusion of argument on this ground of appeal that it did not regard itself as part heard on Appellant Swansson’s conviction appeal. To preserve that position, it is best for this Court to regard itself as having only considered the application for leave to amend by adding the additional ground in the appeal. However, the Court should not make any order consequential upon the additional ground of appeal at this stage.

82 Accordingly the orders I propose are:

1 Appeal allowed.

3 A new trial be held.

83 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgment of the Chief Justice. I agree with the orders the Chief Justice proposes and with his Honour’s reasons.

84 I do not wish to add to the Chief Justice’s reasons with respect to the indictments or the application of the proviso. It may be that the High Court will in future emphasise that before the proviso will be excluded there must have been a “substantial miscarriage of justice” (Wilde at 373: see also Bounds v R (2006) 228 ALR 190; the Chief Justice has already noted the observations of Hayne and Gummow JJ in Nudd). Such an approach is not presently open to this Court.

85 However, I wish to add some further observations on the question of whether this Court may consider the “other grounds of appeal” relied on by Swansson.

86 In Crane v Director of Public Prosecutions (1921) 2 AC 299 the Court of Criminal Appeal had determined, in the words of the Earl of Reading CJ, that “there has been no trial.” The two prisoners could not have been given in charge of the jury on two separate indictments in the same way as if they had been jointly indicted. The proceedings were void ab initio and from the moment the prisoners were given in charge of the jury the trial was a nullity” (R v Crane (1920) 3 KB 236 at 237). The House of Lords, by majority, concluded that, although the trial was determined to be a nullity, Crane was nevertheless entitled to exercise his right of appeal under the Criminal Appeal Act 1907. The essential reasoning was expressed by Lord Atkinson:

“He is still a person convicted on an indictment within the meaning of that section, since those words cannot mean validly convicted, otherwise the statute would be futile and unworkable … The very purpose for which the Court was created was to consider whether the convictions of persons who had, in fact, been convicted were valid or the contrary, and to deal with them accordingly” p 323.

87 In Munday v Gill, as the Chief Justice has indicated, the High Court stated that the simultaneous trial of several indictments was not possible and, in the words of Gavan Duffy and Starke JJ, such a trial was “a nullity and without jurisdiction” (emphasis added) p 76. Although, as the Chief Justice has discussed, the concept of a “nullity” is sufficiently broad to allow the conclusion in Crane, the question for this Court is whether a different consequence flows from a determination that the trial was conducted “without jurisdiction.”

88 A superior court has authority conclusively to determine the existence of its own jurisdiction: Parisienne Basket Shoes Proprietary Limited & Ors v Whyte (1938) 59 CLR 369. Although not a superior court, but a court of record, the District Court has jurisdiction to determine its own jurisdiction DPP (NSW) v PM (2006) 164 A Crim R 151, [2006] NSWCCA 297 [62].

89 The District Court has been provided by statute with jurisdiction to try the offences with which the appellants were charged. The proper exercise of that jurisdiction required that there be only one indictment. The failure to proceed on a single indictment leads to the consequence that this Court exercising its appellate jurisdiction must quash the conviction. However, by so doing this Court is not exercising a prerogative power and is not intervening because the District Court did not have jurisdiction to try the relevant offences. This Court determines an appeal from a conviction in which the essential question is whether the appellants were tried according to law.

90 In Parisienne Basket Shoes the High Court held that, although an information had been laid out of time, the proceedings could be heard and disposed of in the Magistrate’s Court. The court rejected the submission that the Magistrate lacked jurisdiction. Dixon J said:

coram non judice

The Case of the Marshalsea

91 The jurisdiction in the District Court to try the appellants for the relevant offences could only be exercised according to law if a single indictment was presented. Although the identified error occurred, with the consequence that the proceedings must be determined to be a nullity, the matter was not coram non judice.

92 Because, in many circumstances, a decision made by a body which is “without jurisdiction” may be devoid of any legal consequence, I was initially unsure as to whether the present matters could be resolved in this manner. However, the reasoning of the majority in Crane was authoritatively adopted by the High Court in Russell v Bates (1927) 40 CLR 209 at 213, where in a joint judgment of Knox CJ, Isaacs, Gavan Duffy, Powers, Rich and Starke JJ said:

“We do not think it necessary to decide whether the Magistrate had, or had no jurisdiction to hear these cases together, for we are unable to agree with the conclusion that if there was no jurisdiction there was no adjudication from which an appeal lay to the Court of Quarter Sessions (at 213).”

93 Adopting the approach in Crane at 323, the joint judgment continued:

Crane

…

Crane v Public Prosecutor

94 It follows that the appellants in the present case have “in fact” been convicted and accordingly an appeal lies to this Court. That appeal cannot be confined to the ground which raises the problem of multiple indictments.

95 There is one further matter. In the resolution of the appeal of Swansson the Chief Justice proposes that a new trial be ordered. By so ordering this Court must be understood to be ordering a trial on an indictment presented according to law.

96 SULLY J: I have had the benefit of reading in draft the reasons for judgment of the Chief Justice. I concur in the making of the orders proposed by his Honour. I apprehend, however, that my own reasoning does not correspond entirely with the reasoning of the Chief Justice; and so I make the observations that follow.

97 The submissions of the Crown seem to me to put in issue some matters of profound importance to the principled administration of criminal justice. It is convenient to crystallise in particular three such matters:

[1] Should the principle which is sometimes abbreviated into the form: “one indictment, one jury” continue to be a fundamental norm of a trial upon indictment, according to law, of a criminal charge?

[2] If so, should a failure in a particular trial upon indictment to observe that fundamental norm result in the particular trial’s being treated by the law as a nullity?

98 As to Question 1, I can see no answer, as the law now stands, to the proposition that there currently exists, and has existed for a very long time, precisely the principle: “one indictment, one jury”. I can see, moreover, no answer, as the law now stands, to the further proposition that the principle thus recognised has always been regarded, not as a mere technicality, or as an optional procedural extra, but as a fundamental norm of a trial upon indictment, according to law, of a criminal charge. Ample support for both of the foregoing stated propositions is found, in my opinion, in the reasoning of the High Court of Australia in Munday v Gill (1940) 44 CLR 38; and in the inferences properly to be drawn from the scheme of the provisions of the Criminal Procedure Act 1986 (NSW) respecting the form and contents of indictments. These sources and other relevant curial decisions are examined and explained by the Chief Justice; and I need add nothing of my own to those passages in his Honour’s reasons.

99 The submissions of the Crown deal with the particular fundamental norm in a way which is becoming, as it seems to me, disconcertingly familiar in the ongoing development of the Common Law, and not least in the ongoing development of the common law of crime. It is now commonplace for proponents of what they are pleased to call law reform to attack some entrenched common law principle upon the sole basis that, to borrow the Chief Justice’s paraphrase: “……. It is a technicality which has no contemporary significance”.

100 It seems to me that the experience of the recent past teaches that any use of that invocation of “contemporary significance” in the context of proposed fundamental changes to, especially, the law of crime should cause warning lights to flash in the mind of every common law Judge. The nature of the warning is captured cogently in two particular statements of principle. One is contained in a paper entitled “Concerning Judicial Method”, which was delivered at Yale University in 1955 by Sir Owen Dixon, then Chief Justice of the High Court of Australia. The other is contained in a work, “Orthodoxy”, published in 1908 by G. K. Chesterton.

101 The passage in Dixon CJ’s paper is:

“It is one thing for a court to seek to extend the application of accepted principles to new cases or to reason from the more fundamental of settled legal principles to new conclusions or to decide that a category is not closed against unforeseen instances which in reason might be subsumed thereunder. It is an entirely different thing for a judge, who is discontented with a result held to flow from a long accepted legal principle, deliberately to abandon the principle in the name of justice or of social necessity or of social convenience. The former accords with the technique of the common law and amounts to no more than an enlightened application of modes of reasoning traditionally respected in the courts. It is a process by the repeated use of which the law is developed, is adapted to new conditions, and is improved in content. The latter means an abrupt and almost arbitrary change. The objection is not that it violates Aristotle’s precept ……………. ‘that the effort to be wiser than the laws is what is prohibited by the codes that are extolled’. The objection is that in truth the judge wrests the law to his authority. No doubt he supposes that it is to do a great right. And he may not acknowledge that for the purpose he must do more than a little wrong. Indeed there is a fundamental contradiction when such a course is taken. The purpose of the court which does it is to establish as law a better rule or doctrine. For this the court looks to the binding effect of its decisions as precedents. Treating itself as possessed of a paramount authority over the law in virtue of the doctrine of judicial precedent, it sets at nought every relevant judicial precedent of the past. It is for this reason that it has been said that the conscious judicial innovator is bound under the doctrine of precedents by no authority except the error he committed yesterday.”

“Jesting Pilate”

102 The relevant passage in the Chesterton work is:

“Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death.”

103 The origins of the present appeal are, in my opinion, a paradigm example of the dangers against which, in their different particular ways, both Dixon CJ and Chesterton were warning. For if it be asked why the existing and well-entrenched norm of “one indictment, one jury” should now be swept away at, so to speak, a stroke of the curial pen, then the frank answer is that to sweep away the norm would rescue the amour propre of whoever it was who decided, for reasons which nobody was able to propound for this Court in any way whatsoever, to depart from the norm. I can envisage, for my own part, no more unconvincing, no more unjustifiable, a basis upon which to disturb a fundamental norm of a criminal trial in our system of criminal justice.

104 This Court should, in my opinion, reaffirm in the plainest terms that the “one indictment, one jury” principle is a fundamental norm in a criminal trial in New South Wales; and that if there is to be an abrogation of that fundamental norm, then that abrogation should be accomplished by informed, thoughtful and measured legislative amendment, and not by yet another curial moving of the relevant goal posts in response to an adventitious administrative decision.

105 It should be affirmed in addition, in my opinion, that the “one indictment, one jury” principle does in fact have a practical value. An insistence upon the observance of the principle will entail, in the nature of things, that the Crown or other prosecuting authority must think through carefully, and then express in a clear and convenient form precisely what charge(s) it is proposed to bring to trial in a particular hearing before a particular Judge and jury. If two or more accused are to be tried jointly, then a single indictment will make that fact completely clear to the jury. If it is proposed to lay before the jury some alternative(s), then a single indictment will make that fact completely clear to the jury.

106 It has been remarked elsewhere that an indictment is not merely a sheet of paper containing writing. Indeed it is not. It is the statement, the formal tender of which commences correctly a criminal trial of a citizen. Clarity and precision are the minimum requirements of any charge(s) thus preferred against a citizen. Compliance with the established norm will achieve them. That is a deeply-rooted principle grounded in centuries of experience. In my respectful view this Court should resolutely say so.

107 As to Question 2, I can see no answer to the proposition that, as the relevant law currently stands, the relevant departure from the relevant fundamental norm has resulted in a trial procedure, but in a trial procedure so flawed as to be a nullity. The relevant supporting authorities are examined by the Chief Justice and I have no need to add anything to that discussion by his Honour.

108 As to Question 3, I would answer that question, simply: no.

109 If, as I believe, the “one indictment, one jury” principle is a fundamental norm of a criminal trial; then the proviso cannot authenticate the penal consequences of a trial process that has been a nullity. The reasoning of Brennan, Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365 at 373, which reasoning is quoted in paragraph [52] of the reasons of the Chief Justice, seems to me to be conclusive of the point.

110 The reasoning of the Chief Justice draws attention to three recent decisions of the High Court of Australia. I, with respect, do not understand them, or any of them, to alter the law as stated in Wilde (supra).

111 In Weiss v The Queen (2005) 224 CLR 300, the High Court took as the relevant starting point this proposition:

“36. By hypothesis, when the proviso falls for consideration, the appellate court has decided that there was some irregularity at trial. If there was not, there is no occasion to consider the proviso.”

112 The High Court went on to explain that in a case in which the use of the proviso might hypothetically cure some irregularity at trial, - for example, an irregularity in the form of the erroneous admission at trial of prejudicial evidence, that being the actual irregularity with which Weiss was concerned, - then the Court which is asked to apply the proviso must make its own independent assessment, in the manner explained by the High Court, of the trial evidence.

113 In my opinion Weiss is of no practical assistance in the present case. This Court is dealing, in my perception of things, not with an irregularity in a trial in which the established norms going to the root of the concept of a fair, lawful trial have been observed. This Court is dealing, rather, with a purported trial that was in truth a nullity by reason of a failure to observe one of those established norms.

114 In Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 two Justices, Gummow and Hayne JJ, say at paragraph [36], and speaking of the proposition which I have previously cited from Wilde:

“It is not necessary to explore the boundaries of this proposition or to attempt to identify circumstances in which it could find application. To do so would require close attention to what is meant by ‘essential requirements of the law’ and ‘the root of the proceedings’. These notions may reflect what has been said by some members of the Court respecting aspects of ‘due process’ discerned from Ch III of the Constitution. However that may be, in the context of a criminal trial it may be open to doubt whether some requirements of the law are properly to be dismissed as inessential or whether some requirements are to be classified as radical and others not.”

115 It seems to me, with respect, that those observations are obiter dicta. That seems to me to follow from what is said by their Honours in paragraph [37]:

“In the present case, the proposition that the incompetence of the appellant’s counsel went to the root of his representation is either self-evident or circular. If all that was meant was that counsel was incompetent, the addition of reference to the root of the appellant’s representation is superfluous. If it was intended to convey that the incompetence of representation at trial led to a miscarriage of justice, it is a proposition that does not add to the considerations examined earlier in these reasons.”

116 A speculation that Wilde, or aspects of it, might be reconsidered by the High Court on some future occasion does not entail, in my respectful opinion, that this Court either can or should disregard Wilde now.

117 In Darkan v The Queen (2006) 80 ALJR 1250, the Court was concerned with a trial in which there had been a serious error of law in the directions given to the jury. The aspect of the decision that has potential bearing upon the present appeal is best dealt with, in my opinion, by attending to what is actually said in paragraphs [94] and [107] of the joint majority judgment of Gleeson CJ, Gummow, Heydon and Crennan JJ:

“[94] In Weiss v The Queen this court put aside questions relating to two particular kinds of defect in a trial. One was whether the proviso could be applied when there had been ‘a significant denial of procedural fairness’. This does not arise, because the trial was procedurally fair. The other was whether the proviso could be applied where there had been a sufficiently ‘serious breach of the presuppositions of the trial’. This was a reference to a trial which had ‘so far miscarried as hardly to be a trial at all’ or ‘where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings’. Neither defect existed in relation to the trial so far as it concerned the first appellant.”

“[107] It is true that the error went to an element in the case advanced against the second appellant at trial (unlike the position with the first and third appellants, in respect of whom there were other paths to conviction unaffected by the error). However, the second appellant’s complaints about the summing-up had a double aspect. One was that no direction at all should have been given; the other was that the direction was wrong in its terms. It is relevant that counsel did not ask the trial judge not to give, or to withdraw, the direction. It is true that if a direction were to be given, justification could be found for the form of the words used by the trial judge in R v Hind . But that case did not mandate that any direction be given. It was open to counsel to request that the direction not be given, or that it be withdrawn. The proposition that no direction should have been given was rejected above, but the failure of counsel to request that it not be given or that it be withdrawn suggests that counsel did not perceive the direction as especially damaging to the second appellant’s interests. It is also relevant that the error affected only the degree of probability required. The trial judge repeatedly referred to the concept of probability; his error was to speak of a real or substantial possibility or chance, rather than a level of probability below the balance of probabilities. The fact is that whatever the meaning of ‘a probable consequence’, the circumstances engineered by the second appellant fell within the expression. The complaints of the second appellant in particular about the direction appear to have been formulated after the conviction for appellate purposes. Even though they go to an aspect of the crime’s charges in one of their elements, their nature is not such as to suggest that there was in truth no trial at all.”

118 I would say, yet again, that the present appeal is not dealing with an irregularity, even a serious one, at trial. It is dealing, in my view, with a failure to observe a fundamental norm or “presupposition” of a fair, lawful criminal trial upon indictment.

119 As previously indicated, I concur in the making of the orders proposed by the Chief Justice.

120 SIMPSON J: I have read in draft the judgment of the Chief Justice and also those of McClellan CJ at CL, Sully and Howie JJ. In my opinion, in each case, the appeal ought to be allowed, and the conviction set aside. What follows are my reasons for that view. I do not propose to restate the background.

121 Two classes of case arise:

· the first is where two or more individuals, charged on separate indictments, are prosecuted in a single hearing;

· the second is where one individual is charged with multiple offences on two or more indictments all of which are prosecuted in a single hearing.

122 Both are here relevant. Henry was prosecuted, in one trial, with four others. A separate indictment was presented against each accused. In another trial, Swansson was arraigned on two separate indictments.

123 On appeal, Henry pleaded a single ground, challenging the validity of a trial so conducted. Swansson, having pleaded other grounds of appeal, sought to join that challenge.

124 The appellants relied upon a line of authority to which the Chief Justice has referred, and to which I will return. The effect of the line of authority is pithily encapsulated in R v Tagaras, unreported, NSWCCA, 9 April 1974 as “‘one indictment’ – ‘one jury’”. The line of authority is said (on behalf of the appellants) to establish, as an inflexible rule of law, that any criminal proceeding may proceed only on a single initiating process, and that any criminal proceeding which purports to proceed otherwise, involving more than one indictment (whether against a single accused, or against multiple accused), is necessarily invalid to the point of being a nullity. The Crown recognised the apparent weight of the authority that supports that proposition, and thus the inevitability of the outcome of this ground, unless it could persuade this Court of one or more of the following propositions:

· that the line of authority is of less weight than would at first appear, and is not binding upon this Court;

· that this Court can and ought to decline to follow the line of authority;

· that, even if there exists a rule (whether of law or of practice), that a trial may only proceed on one indictment, the consequence of any departure from the rule is not necessarily the nullification of the trial, but may be less dire.

· that, if the rule exists, it is open to this Court, by the application of the proviso to s6 of the Criminal Appeal Act 1912, nevertheless to dismiss the appeals.

125 It was because of the Crown’s intention to argue that this Court ought not to follow its own, and other, precedents, that a five judge bench was convened.

126 I propose to proceed to deal with the questions as I perceive them to arise. Although the cases recognise the distinction between multiple accused charged on separate indictments and an individual accused charged with separate offences on multiple indictments in a single proceeding, that distinguishing feature has not ever been seen to create a relevant difference.

(i) Is there a rule (and, if there is, is it a rule of law or practice), binding upon this Court, that a criminal trial may proceed on a single indictment only?

127 So far as has been ascertained for the purpose of these appeals, the “rule” has its genesis (at least in the context of reported decisions) in Crane v Director of Public Prosecutions [1920] 3 KB 236 (in the Court of Criminal Appeal); [1921] 2 AC 299 (in the House of Lords). In Crane, two accused, charged on separate indictments, were tried together. It was held that, because of that procedural irregularity, the trial of Crane was a nullity.

128 Although the statements in Crane are powerful and unequivocal, the judgments and speeches are notable for the absence of any examination of the origins of, or rationale for, the “rule”. In the Court of Criminal Appeal the Earl of Reading CJ, who delivered the judgment of the Court, said:

“The appellant was convicted of receiving certain skins well knowing them to have been stolen. He gave notice of appeal against the conviction to this Court, alleging as the grounds of his appeal misdirection and the mis-reception of evidence. It was then discovered that another man named Morton who had been separately indicted for stealing the skins had been tried with the appellant and had also been convicted. It was apparently assumed by the learned Recorder and also by counsel appearing for the prosecution and the prisoners that the appellant and Morton were jointly indicted, the two prisoners having been given in charge of the same jury as if they had been jointly indicted under one and the same indictment, whereas, as we now know, there was a separate indictment against each of them. …

ab initio

129 This was the full extent of the decision so far as it held that a trial must be limited to the accusations contained in a single indictment. In the House of Lords Viscount Finlay accepted that the rule existed, and devoted his attention to the consequences of departure from what is required by the rule.

130 Lord Atkinson said:

“When an accused person has pleaded ‘Not guilty’ to the offences charged against him in an indictment, and another accused person has pleaded ‘Not guilty’ to the offence or offences charged against him in another separate and independent indictment it is, I have always understood, elementary in criminal law, that the issues raised by those two pleas cannot be tried together. It is obvious that many inconveniences would arise in practice if they were tried together; one amongst them would be this, that in a case where a felony was charged against each, the one might by his peremptory challenges put off from the jury the very men by whom the other desired to be tried, whereas had they been indicted jointly and did not join in their challenges they might have been, and probably would have been, tried in succession, and only those jurors which the person on trial objected to would have been peremptorily challenged. But that consideration is, in my view, quite beside the point. The appellant, William Cane, was never, as far as I can discover, properly arraigned on the indictment found against him. He never pleaded to that indictment, the jury who found him guilty were never sworn to try him separately, and had no jurisdiction to find against him the verdict they have found. The whole proceedings were, in my view, as against him, a mis-trial and a nullity.”

131 Lord Sumner said:

“My Lords, the statement of counsel, who defended the appellant at the trial and appeared for him in the court below, shows that in the belief of all concerned the appellant was tried at Leicester on an indictment which charged him, jointly with David Morton, with the offence for which a conviction was recorded against him. In fact there was no such indictment. The judgment of the Lord Chief Justice shows that the same view of what had occurred in the Court of Criminal Appeal. So tried, Crane was invalidly tried, and the conviction was without authority. I see no ground for thinking that in reality there was a valid trial – namely, the trial of the appellant on the separate indictment, which had been framed against himself, while at the same time another person, Morton, also separately indicted, was being tried in reality separately though to all appearances with Crane, both simultaneously undergoing the same procedure before the same jury and sharing in the evidence, the speeches, and the summing up … It is clear that the appellant purported to have been tried and convicted on an indictment which did not exist. It was a mis-trial, and in truth no trial at all.”

132 Finally, Lord Parmoor said:

“My Lords, the appellant, Crane, was separately indicted for receiving stolen goods, and a man, named Morton, was separately indicted for stealing and receiving the same goods. Owing to some mistake, which was not discovered until the appeal was brought before the Court of Criminal Appeal, Crane and Morton were tried together, as though they had been jointly charged in one indictment. The result is that Crane was not tried on the indictment, on which he had been charged, and the trial is a nullity. I think it is impossible to hold, that it is within the competency of any criminal court to try a prisoner on an indictment, which, so far as he is concerned, is non-existent.”

133 In the Court of Criminal Appeal no reason was given why a joint hearing of two separate indictments constituted a nullity. In the House of Lords, the nearest to a reason being assigned lies in the speech of Lord Atkinson, extracted above, to do with the exercise by one accused of peremptory challenges, possibly to the detriment of the co-accused. This, as a rationale, as I see it, has no application to the present cases. It is entirely irrelevant to Swansson’s case. So far as Henry is concerned, it was accepted that he and his co-accused could all have been tried together on a joint indictment. Had that happened, each would have been entitled to peremptory challenges, even if that resulted in challenge to potential jurors whom another accused would prefer to have been selected. The “inconvenience” of conflicting attitudes to jury selection would therefore exist where two accused were tried jointly.

134 In R v Dennis; R v Parker [1924] 1 KB 867, the Court of Criminal Appeal said:

“No criminal Court has jurisdiction to try two separate indictments at one and the same time …”

135 Crane was cited as authority. The Court declined to accept an argument to the effect that the accused had consented to the procedure and that this distinguished that case from Crane. In rejecting that argument the Court characterised the issue as a jurisdictional one and not merely procedural. In Dennis, like Crane, two accused were charged on separate indictments, but tried together.

136 Albert Michael McDonnell (1928) 20 Cr App Rep 163 was a case in which two indictments presented against one accused were prosecuted jointly. Having recited the relevant facts, Hewart LCJ said:

“It was impossible to resist the conclusion that the whole trial was a mere nullity. The case was covered by W Crane …”

137 Crane, although in my opinion not binding on this Court, gave rise to a consistent line of Australian authority. It has been cited, applied and followed in Australian courts on a number of occasions. In 1943, in R v Landy [1943] VLR 73, in the context of a trial in which two indictments had been presented against one accused, Mann CJ, delivering judgment on behalf of the Court, distinguished Crane on that basis but cited McDonnell as authority for the proposition that the Crane principle applied in those circumstances also.

138 The Full Court said:

Indictment Act 1915

Presentments Act 1916

Crimes Act 1928,

139 In Tagaras, supra, (a NSW case) an accused was charged and indicted on three charges on one indictment, and on a fourth charge on a second indictment. The Court of Criminal Appeal (McClemens CJ at CL, Begg and Slattery JJ) said:

“Notwithstanding the possible criticism which may be levelled at the decision in McDonnell ’s case it has been followed in England … and it was ultimately followed in the Full Court of the Supreme Court of Victoria in R v Landy … after pointing out that Crane ’s case was not really a precise authority governing the trial of one accused person on two separate indictments, that Court nonetheless felt it was desirable that the decision should be followed. We have considered a large number of authorities and reached the conclusion that we should follow the procedure which has been acted on for many years. We ought to make it clear that the practice should be that there can only be one indictment for any one trial. This is, in our view, consistent with what was said by Dixon, J, in Munday v Gill & Ors ., 44 CLR 38 at p 86 …

In our view the practice ought to be ‘one indictment’ – ‘one jury’.”

140 In R v Harris & Ors (No 2) [1990] VR 305, Ormiston J said:

“It is of course clear that the accused cannot be tried on two indictments or presentments at the same time.”

141 The circumstances of Harris were far removed from the present. The issue there concerned a Crown application to present a new indictment, apparently replacing an indictment which had earlier been presented, pleading dates different from those which had previously been pleaded, and adding an additional count. (There does not appear to have been any statutory provision for amendment of an indictment.)

142 Ormiston J considered the application in the context of the fairness of the trial process, and referred to the power to stay any abuse of process (presumably, abuse of process which might result from the existence of dual indictments) and held that the Crown would be required to elect on which indictment to proceed. It was in that context that his Honour made the remark quoted above. The Court was there deciding no issue concerning the validity of a trial based on more than one indictment. The remark extracted was no more than a passing observation.

143 In this Court, in R v Howard; R v Mihilovic; R v Morgan; R v J (1992) 29 NSWLR 242, the Court was considering a series of appeals against convictions of murder. The proceedings were of some complexity, and also involved applications for leave to appeal against sentences, on the basis of asserted disparities between sentences imposed on a series of co-offenders, some of whom had proffered pleas of guilty to manslaughter, which had been accepted by the Crown in full satisfaction of the indictments.

144 Against that background, at p. 247, the following appears:

“It is to be noted that there can only be one indictment on any one trial: …”

145 Again, given the factual circumstances of the cases, and the issues that were before the Court, the remark cannot be taken as decisive in any relevant sense. It was, again, (as it purports to be) a passing observation. Munday v Gill (1930) 44 CLR 38 (to which I will return) and Tagaras were cited as authority for the proposition. A little later, the following appears:

“When, in January 1991, [four of the accused] were put upon their trial then, whatever they were charged with, a joint indictment naming the four of them was necessary: …”

146 In R v Janceski [2005] NSWCCA 281; 64 NSWLR 10 Howie J, with whose reasons in this respect Wood CJ at CL, Hunt AJA and Johnson J agreed, said:

“There cannot be a trial on two indictments at the one time ...”

147 Notwithstanding the apparent weight of this authority, neither individually nor collectively do the statements persuade me that the “rule” for which the appellants contend is either as inflexible as these statements would suggest; nor is any of the statements binding upon this Court. Nowhere is the “rule” examined or explained. Nowhere is its origin identified. Nowhere is any rationale for the “rule” proposed. It is of some interest that the Court in Tagaras expressed some disquiet, possibly because of the inflexibility with which the rule is expressed, and the automatic and drastic consequences of its breach, but appears to have opted for maintaining precedent.

148 I accept, as the Chief Justice has hypothesised, that the absence of any examination of the rule or its origin may be because the rule is so well entrenched and of such long standing that it has not previously called for examination. That, in my opinion, is an explanation for the absence of any reasoned authoritative exposition of the “rule” as a rule; but it is an inadequate basis, in my opinion, to enable this Court to conclude that the rule is of such inflexibility as to admit of no examination. I would accept, on the basis of these authorities, that the “rule” is a rule of practice and that it has something, in practical terms, to recommend it as such: in this I do not disagree with the justification proposed by Howie J. What these authorities do not persuade me is that the rule is such as, if breached, of its own force to nullify an otherwise validly and properly conducted trial; and it is inadequate to persuade me that it would not now be open to this Court to undertake its own examination of the aetiology of the rule, and determine whether it ought continue to follow and apply it and, if it is to do so, in what way it is to be seen: as an inflexible rule of law with its own automatic consequences, or as a rule of practice, departure from which would constitute no more than an irregularity in the trial process, the consequences of which will depend upon the nature and, more importantly, the effect of the irregularity: see R v Lansdell, unreported, NSWCCA, 22 May 1995 at 4, 11; R v Marsland, unreported, NSWCCA, 17 July 1991; R v Rudkowski, unreported, NSWCCA 15 December 1992; R v Domican (No 3) (1990) 46 A Crim R 428.

149 That is not the case, however, in relation to the one remaining Australian authority which I have, to this point, left in abeyance, a case which cannot so readily be discarded. In Munday v Gill Isaacs CJ referred to

“… the fundamental doctrine of Crane’s case …”;

“And in a trial upon indictment the jury is, and can only be, empanelled and sworn to try the issues of the particular indictment – to find whether the accused be guilty or not guilty upon that indictment and no other. Therefore the simultaneous trial of several indictments is impossible, and the decision of the House of Lords [a reference to Crane ] that such a trial was a nullity and without jurisdiction inevitably follows.”

“But there is no way allowed by law of putting in charge of one jury at one time two or more prisoners arraigned upon separate indictments. Jurors are especially chosen for the single purpose of trying one indictment or such of the prisoners arraigned on one indictment as they may have in charge. It is, therefore, not surprising that the Court of Criminal Appeal decided that it was not competent for a court holding criminal inquests to depart from this method of trial and try by one jury simultaneously prisoners separately indicted. …”

150 The present issue was not directly before the High Court in Munday v Gill. The issue there was whether the rule, that was assumed to exist in respect of trials on indictment, also applied to summary proceedings prosecuted on information. In my opinion the Crown is correct in contending that even the powerful statements in Munday v Gill are not, strictly speaking, binding upon this Court in respect of the issue for present determination. The remarks are obiter.

151 However, the statements are of such power and force that, in my opinion, it is not now open to this Court to do other than accept that the law is as stated by their Honours. It is because of the statements in Munday v Gill, and only because of those statements, that I concur in the conclusion of the Chief Justice that it is not now appropriate for the Court to accede to the submissions of the Crown and embark upon a consideration of whether there exists such a rule, or whether it ought no longer be followed. This Court is obliged to accept that the rule is a rule of law, that it admits of no departure, and that any departure nullifies the trial. Each trial was, therefore, a nullity. The convictions cannot be allowed to stand.

152 I agree with the Chief Justice, contrary to the argument advanced on behalf of the Crown, that it is not open to this Court as an intermediate court of appeal, to follow the lead of the Canadian Supreme Court in R v Clunas (1992) 70 CCC (3d) 115, and abandon an established rule of law. That course was taken in Canada only by that country’s ultimate court of appeal.

153 Sully J and Howie J have proposed some benefits that flow from the existence of the rule: essentially, going to the orderly conduct of criminal trials, and certainty in what the Crown alleges and how it proposes to make its case. I agree that these considerations support maintaining the rule as a rule of practice. I do not agree that they are of such force as to warrant the characterisation of the rule as an inflexible rule of law. If they were the justification for the rule (and there is nothing in the authorities to suggest that they are the reason for its existence, as distinct from a convenient by-product of it) departure from the practice would require, not rectification of the process, but an examination of the consequences of the departure, and any ameliorative measures that have been taken to ensure that all parties (in which I include the jury) are aware of the nature of the case sought to be made by the Crown.

Criminal Appeal Act 1912

154 That a trial may not proceed on multiple indictments is not the only consistent theme to emerge from the UK and Australian authorities I have cited above. Equally consistent is the theme that the consequence of purporting so to proceed is to render the trial a “nullity”. For convenience, I will repeat the relevant passages:

“The result in our opinion is that there has been no trial … the proceedings were void ab initio; from the moment the prisoners were given in charge of the jury the trial was a nullity …” ( Crane , CCA)

“ … the jury … had no jurisdiction to find against him the verdict they have found. The whole proceedings were, … a mistrial and a nullity.” ( Crane , H.L., Lord Sumner)

“The result is that Crane was not tried on the indictment, on which he had been charged, and the trial is a nullity.” ( Crane , H.L., Lord Parmoor)

“It was impossible to resist the conclusion that the whole trial was a mere nullity.” ( McDonnell )

“… the simultaneous trial of several indictments is impossible, and the decision of the House of Lords that such a trial was a nullity and without jurisdiction inevitably follows.” ( Munday v Gill )

155 In any event, the pronouncements in Munday v Gill alone are sufficient to oblige this Court to proceed not only on the basis that the law precludes a trial being conducted on multiple indictments, but also on the basis that a trial so conducted is a nullity. That each trial now in question was a nullity is the starting point in the consideration of the applicability of the proviso. But what does that mean?

156 Implicit in the pronouncements is that there exists a distinction between a trial that is so fundamentally flawed as not to have been a trial at all – a procedure that is devoid of legal validity – and a trial that was merely procedurally flawed. Just what implications a finding that the trial was a nullity has is nowhere spelled out, and is difficult to determine. The implication is that the purported trial is to be treated as never having taken place: see, for example, Dixon J in Munday v Gill extracted below. Nowhere do the authorities clearly delineate, or even attempt to draw a dividing line, between a flawed trial that requires that the conviction that followed be set aside, and a trial that is so fundamentally flawed as to be a nullity. Nowhere do they identify the features of a purported trial that is a nullity, or the features of a trial that is merely procedurally or legally flawed. Indeed, in one of the passages extracted “mistrial” is used interchangeably with “nullity”, although the former is language that would ordinarily be applied to a procedurally flawed trial.

157 Because of the decisive manner in which the High Court, in Munday v Gill, pronounced trials commenced in the manner in which the trials the subject of the present appeals commenced as nullities this Court is spared the necessity of examining and deciding whether the undoubted error amounted to procedural irregularity or a flaw so fundamental as to render the trials not trials at all. That question is foreclosed by Munday v Gill. See, however, the discussion by McColl JA in Deveigne v Askar [2007] NSWCA 45.

158 But it remains necessary to consider the consequences of the declaration that a trial is a nullity.

159 As I have already observed, the authorities as to the meaning of the term “nullity” are very limited. However, there are indications that the term is synonymous with lack of jurisdiction. For example, in Crane Lord Atkinson held that the jury had no jurisdiction to return the verdict of guilty; and in Munday v Gill Gavan Duffy and Starke JJ adopted that approach, saying that the trial “was a nullity and without jurisdiction”. Dixon J then explained the consequence of proceeding without jurisdiction: his Honour said:

coram non judice.

160 In a different context, the effect of a purported order that is made without jurisdiction and is, accordingly, a nullity, has been considered, at least twice, by the Court of Appeal.

161 In Attorney General for NSW v Mayas Pty Ltd (1988) 14 NSWLR 342, McHugh JA (as he then was), with whom Hope JA agreed, said:

“If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.”

162 In practical terms, of course, a person convicted (and imprisoned) as a consequence of a criminal proceeding that is a nullity is not able (even though entitled to do so) to disregard the order. But it might be useful to consider what would ensue if that person escaped from imprisonment. On the authority of Mayas and United Telecasters, he/she could not be convicted of escaping lawful custody.

163 The key to the distinction, it seems to me, is jurisdictional. In Crane, (Lord Atkinson) and Munday v Gill (Gavan, Duffy and Starke JJ) the concept of nullity was linked with an absence of jurisdiction. I have come to the view that a purported trial that is a nullity is one that the court in which the proceeding takes place is, for some reason, devoid of jurisdiction. This may be, for example (as has twice recently been demonstrated), that the indictment by which the proceedings are commenced is not signed by a duly authorised Crown Prosecutor in accordance with statutory requirements: R v Halmi [2005] NSWCCA 2; 62 NSWLR 268; R v Janceski [2005] NSWCCA 281; 64 NSWLR 10.

164 That is because, as was explicitly stated in Janceski, the indictment is the originating process that invests the court with jurisdiction. If the indictment is invalid, the court does not have jurisdiction to hear the charge or charges, and proceed to verdict; the proceedings on the invalid indictment are irregular, and cannot be regularised. They are a nullity. It is not to the point, with respect to McClellan CJ at CL, to observe that as the court has jurisdiction to hear and determine the subject matter of the proceedings (whether, as here, criminal charges, or civil proceedings); the court’s jurisdiction must also properly be invoked. Here, it was not properly invoked, with the results already stated.

165 The difficulty in the application of the proviso arises because of the characterisation of the trials as nullities. A finding that the trials were nullities is the inevitable consequence of applying Munday v Gill. It simply is not possible, having regard to the judgments in that case, to conclude that the trials were merely procedurally irregular.

166 S6(1) of the Criminal Appeal Act is in the following terms:

“(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

167 Analysis of the section shows that it provides for an appeal against conviction to be allowed in three separate circumstances:

168 By the proviso, even where a ground is otherwise made good, the court is empowered to dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The proviso does not call for consideration unless one or more of those bases is established. (I interpolate that it is not every error of law that activates the second ground: that ground is founded upon there having been a decision on a question of law. Frequently enough errors of law infect trials even without a decision having been called for, or made. In these cases recourse will have to be made to the third ground.)

169 Here there is no question of unreasonable or unsupportable verdicts, or wrong decision of any question of law. The only possible basis, in the present cases, for the appeals to be allowed is the third – that there has been a miscarriage of justice. A finding that there has been a miscarriage of justice is, in turn, an inevitable consequence of the conclusion stated above, that each trial was a nullity. If the proviso were available to be applied in these circumstances, then the court would be required to draw a distinction between a miscarriage of justice and a substantial miscarriage of justice. The miscarriage of justice established in this case may, it is true, be characterised as a procedural one, but it is a procedural miscarriage of considerable moment – conviction following trials characterised by the High Court as “nullities”. I am unable to accept that a conviction following a trial which is so procedurally irregular as to be a nullity could nevertheless be preserved by the application of the proviso.

170 I do not, with respect, accept that the reasoning in Crane, extracted by the Chief Justice in paragraph [47], supports the availability of the proviso in the present case. As I read that passage, and the subsequent decision of the Privy Council in Calvin v Carr [1980] AC 574; [1979] 1 NSWLR 1, it is to the effect that, even where the ground of appeal, if successful, would lead to the conclusion that the trial is a “mistrial” or a “nullity”, nevertheless the purported conviction which follows is subject to appeal under the relevant criminal appeal legislation. If that were not so, then any convicted person seeking to challenge a conviction on a basis which would result in the trial being declared a nullity, or the conviction void, would be precluded from doing so under the appeal legislation, and be required, perhaps, to proceed by way of some form of prerogative relief. Crane and Calvin hold that the jurisdiction to allow an appeal against a conviction that results from a process that is a nullity derives from the same legislation that confers rights of appeal upon persons convicted in trials that are not so fundamentally flawed. That practical construction of the legislation ensures that convicted persons have a single avenue of challenge against conviction. It avoids the unpalatable alternative: a bifurcated route to challenge a conviction depending upon whether the ground is one that, if successful, would result in a declaration of nullity or one that, if successful, would establish one of the s6 grounds, notwithstanding that the trial itself was not so fundamentally flawed.

171 But I do not read the passage in Crane as leaving open the possibility that, where a successful ground of appeal results in the declaration of the trial as a nullity the conviction that flows therefrom may nevertheless be saved by the application of a legislative provision such as the proviso to s6.

172 Criminal appellate courts are familiar with the notion of determining or being asked to determine that a conviction resulting from a particular trial be set aside on any of the grounds provided for in s6. Ordinarily, a finding that there has been a wrong decision on a question of law, or a finding that there has been a miscarriage of justice on some other ground, does not raise any question of jurisdiction: it does not raise the spectre of nullity.

173 Where a court has jurisdiction to hear and determine a cause, it has jurisdiction to determine that cause correctly or incorrectly: Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at 377, 385, 389. The wrong decision of the cause does not make of the trial a nullity.

174 To hold that the proviso to s6 might apply in these circumstances is to hold that a conviction resulting from a trial which is a nullity (“which [was] as nothing”) because the court in which the conviction is entered lacked jurisdiction may nevertheless stand. In my opinion that cannot be the law. I cannot conceive that a conviction entered by a court that lacked jurisdiction to do so could nevertheless, by the application of the proviso, be allowed to stand. It would, of course, be otherwise if the proceedings were merely procedurally flawed or irregular.

175 In my opinion, in the light of the conclusion I have expressed above, that the trials were nullities, the proviso has no application. That conclusion comes about solely as a result of the characterisation of the trials as nullities. Each conviction must be set aside.

176 The final question concerns the grounds of appeal raised on behalf of Swansson other than that which concerns the indictments. In my opinion it is not open to this court to rule upon the remaining grounds of appeal. That is because there is nothing upon which to rule. Further, to embark upon such a course entails the possibility that the court would consider the grounds not made out – the consequence of which must be (apart from the finding on the indictment ground) confirmation of the convictions. For the reasons I have given in relation to the application of the proviso, I am of the view that this result is not available.

177 Even if the court were to uphold the grounds, or any of them, in the light of the finding that the trials were nullities, such a ruling would amount to an advisory opinion. I am conscious that in R v Brown, R v Tran [2004] NSWCCA 324; 148 A Crim R 268, Sperling J adopted that course. I am unable to agree that this is an appropriate course for this court to follow. The position is starkly illustrated by considering the consequence of determining a ground that a verdict was unreasonable: if the ground were rejected, the court would nevertheless allow the appeal on the indictment ground; but if the ground were upheld, the usual result would be entry, by this court, of a verdict of acquittal. But, in my opinion, this court could not order the entry of an acquittal following a trial that is a nullity. And, following Mayas and United Telecasters if the court were merely to express its view that the verdict was unreasonable, the Director of Public Prosecutions would be perfectly at liberty to disregard that expression of opinion and proceed to indict the appellant.

178 The approach I take may be seen to have some potentially disturbing implications. For example, the two trials in question produced some acquittals. On the strict approach I take, it would be open to the Director of Public Prosecutions to disregard (to use the word used by McHugh JA in Mayas) the acquittals, and present fresh indictments against any or all of those accused. Such an attempt would undoubtedly be met by an application for a stay of proceedings.

179 By s6 of the Criminal Appeal Act, this court is required, where satisfied that any of the grounds has been made out, to “allow the appeal”. The inevitable consequence is the quashing of the conviction. By s8 the court is empowered, where satisfied that the miscarriage of justice found can more readily be remedied by an order for a new trial than any other order available to it, to make such an order. But how can this court, in the same breath, declare the trials to have been nullities – never to have taken place – and order that new trials be held?

180 In my opinion, the court should merely quash each conviction. It will be a matter for the Director of Public Prosecutions to determine the future course of the allegations against the appellants.

181 HOWIE J: I have received the advantage of reading in draft the judgments of the other members of the Court. It is unnecessary that I set out the circumstances in which the grounds of appeal arise having regard to the nature of the ground that has been the subject of each of the judgments and that must result in the quashing of the convictions. I only wish to make a brief comment about what has been referred to as the “one indictment - one jury” rule.

182 I would have upheld the appeal by reason of the infringement of the rule even had it been open to this Court to have departed from what had been said by the High Court in Munday v Gill (1940) 44 CLR 38. To this extent I wish to join in the answers given by Sully J to questions 1 and 2 as posed in his Honour’s judgment.

183 It is not simply a common law jurist’s conservatism that would found my support for the preservation of the rule against multiple indictments, a rule that in my view is one of law rather than of practice. I agree, however, with Sully J that the Crown does not start from a favourable position in seeking this Court to overturn a rule, which has apparently operated with efficiency and fairness for as long as the memory of the common law has survived, simply because an officer of the Commonwealth was apparently ignorant of it. Yet, as the judgements of the Chief Justice and Simpson J disclose, the rule has been stated unambiguously in a number of decisions of this Court in recent times.

184 As Sully J points out there is a very real benefit to be gained from the rule: the single indictment presented to the trial court must identify precisely and without the need for any further particulars, given verbally or in writing, the manner in which the Crown is intending to proceed against an individual accused, where there is more than one charge, or against multiple accused, who are charged in the one indictment. In the proceedings before Wood DCJ none of the indictments in its terms told any of the accused, the trial judge, or the jury how the Crown was alleging that an accused was guilty of the offence charged in the indictment.

185 In the case of the two indictments presented against the appellant Swansson nothing indicated that the two charges, each specified in a separate indictment, were in the alternative or which was the primary charge. Nor in respect of each of the indictments charging an individual accused was it apparent that the Crown was alleging that each of them was jointly charged with the one offence, being a single conspiracy. On its face each indictment was alleging that the particular accused was separately charged with an offence of conspiracy, that is a different conspiracy for each of the accused. If these charges had been placed on a single indictment in the way they were framed, that would have been the assumption arising from the fact that they were each separately charged: see Mackey v The Queen (1977) 136 CLR 465.

186 During argument before this Court the Crown drew attention to the fact that it is the practice for a trial judge to direct the jury that that there are separate trials taking place in respect of multiple accused or multiple charges, a trial of each accused or of each charge. So, it was argued, the procedure adopted by the Crown before Judge Wood was consistent with this direction and, therefore, the direction would have been more readily understood by the jury than if there had been a single indictment. But I do not believe that a trial judge intends the jury to understand that there is literally more than one trial actually taking place. The direction is intended to make it clear that separate consideration must be given to each of the allegations in the indictment. In any event there seems to me to be a difference between separate trials taking place in the one proceeding and separate proceedings. Each indictment presented to the court commenced proceedings between the Crown and the accused: R v Hull (1989) 16 NSWLR 385. I do not understand that a jury empanelled to determine one proceeding could determine multiple proceedings: see Dixon J in Munday v Gill at 87.

187 I do not believe it is necessary to go in search of the rationale for the rule or to delve into history in an attempt to discover how it was derived. Nothing was placed before this Court by the Crown to suggest other than that the rule has always been a fundamental procedure attending a trial on indictment. That is how it has been considered by courts of the highest authority in this country and in England. I believe, for the reasons I have given, that the retention of the rule provides advantages to the efficient running of the present criminal justice system and, so far as I can see, the abandonment of the rule would have no practical benefit other than to possibly preserve the convictions of the applicants.

188 The question then arises as to what are the consequences of holding that the trial of the applicants was a nullity. I admit that I have not found this an easy matter to resolve but on an application of simple logic I cannot conclude other than that on this point Simpson J is correct.

189 I do not understand how this Court could apply the proviso to preserve a conviction of a jury after a trial that was in effect no trial at all. As the Chief Justice and Sully J have pointed out, on the authority of Wilde v The Queen (1988) 164 CLR 365 it has been recognised that there can be “such a departure from the essential requirements of the law that it goes to the root of the proceeding” with the result that the proviso cannot be applied. Although the High Court has not recently considered the extent of that limitation on the operation of the proviso, I do not understand that there is any authoritative statement that Wilde is no longer good law, or at least so that this Court could disregard it. If it is acknowledged that there can be fundamental irregularities occurring in an otherwise valid trial that preclude the use of the proviso, I do not understand how it can be applied to a trial that is so fundamentally flawed that it is a nullity.

190 In R v Janceski (2005) 65 NSWLR 10 at [216] I expressed the view that the acquittal of the accused could not withstand a finding that the trial was a nullity but that the appellant was protected because it would be an abuse of process for the prosecution to attempt to proceed further on that charge. Hunt AJA and Johnson J agreed with my judgment. Although I favoured ordering a retrial limited to the charge upon which the applicant was convicted, that order was made to enforce the view that the Crown should not attempt to proceed on the charge on which the applicant was acquitted. There was no point raised by the parties in Janceski as to the effect of the Court’s determination that the proceedings were a nullity and no issue was raised as to the power that the Court had thereafter in respect of considering other grounds of appeal or making consequential orders.

191 I agree with Simpson J for the reasons given by her Honour that this Court should make no order other than to quash the convictions and should not proceed to consider the further ground of appeal raised by the applicant Swansson. As I have already indicated, in my opinion a verdict of acquittal cannot survive a finding that the trial was a nullity. In that case I see no purpose in this Court considering a ground of appeal that would result in a verdict of acquittal because the Court would be making an order that has no legal effect. I agree with Simpson J that this Court should not be expressing an opinion as to the merit of a prosecution without resolving a ground of appeal as this is not one of its statutory functions.

192 I agree with the orders proposed by Simpson J.

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22/03/2007 - Incorrect date on Headnote - Paragraph(s) Date

Citations

R v Swansson [2007] NSWCCA 67

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21

R v A2 [2019] HCA 35

Sasterawan v Morris [2008] NSWCA 70

R v Petroulias (No 17) [2007] NSWSC 499

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41

Statutory Material Cited

8

KS v Veitch [2012] NSWCCA 186

R v Janceski [2005] NSWCCA 288

Munday v Gill [1930] HCA 20

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Reported Decision:	168 A Crim R 263
Appeal Outcome:	Special leave refused by the High Court - 15 June 2007

CITATION:	David Anthony SWANSSON v REGINA; Peter James HENRY v REGINA [2007] NSWCCA 67 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 February 2007
JUDGMENT DATE:	21 March 2007
JUDGMENT OF:	Spigelman CJ at 1; McClellan CJ at CL at 83; Sully J at 96; Simpson J at 120; Howie J at 181
DECISION:	In the matter of Henry; 1 Appeal allowed; 2 Convictions and sentences quashed; 3 A new trial be held; In the matter of Swansson; 1 Leave to add additional ground of appeal granted.
CATCHWORDS:	CRIMINAL LAW – Appeal – New South Wales - Powers of the appellate court to hear a matter – Whether a null trial means the trial has no legal effect and is not subject to an appeal – whether “convicted on indictment” in s5(1) Criminal Appeal Act 1912 refers only to a valid conviction on a valid indictment - - CRIMINAL LAW – Appeal – New South Wales – Miscarriage of justice – power to dismiss an appeal where no substantial miscarriage of justice has occurred – proviso – Criminal Appeal Act 1912, s6(1) - CRIMINAL LAW - Jurisdiction, practice and procedure - Prosecution - Filing of information, presentment or indictment - one indictment, one jury – where two co-accused tried on two indictments – where one accused tried on two indictments - WORDS & PHRASES – “nullity”
LEGISLATION CITED:	Criminal Appeal Act 1907 (UK) Criminal Appeal Act 1912; s5(1); s6(1); s8(1) Criminal Appeal Rules 1952; r4 Criminal Code Act 1995 (Cth); s11.5 Criminal Procedure Act 1986; s21; s23; s46(2); s129; s130; s164 Customs Act 1901 (Cth); s233B(1)(d) District Court Act 1973; s166 Justices Act 1902
CASES CITED:	Abdul Rahman v The King-Emperor (1926) LR 54 Ind App Attorney-General (NSW) v Mayas Pty Limited (1988) 14 NSWLR 342 Berowra Holdings Pty Limited v Gordon (2006) 80 ALJR 1214 Bounds v R (2006) 228 ALR 190 Calvin v Carr [1980] AC 574 Crane v Director of Public Prosecutioons [1920] 3 KB 236 Crane v Director of Public Prosecutions [1921] 2 AC 299 Darkan v R (2006) 80 ALJR 1250 Deveigne v Askar [2007] NSWCA 45 Dinsdale v The Queen (1999) 202 CLR 321 Director of Public Prosecutions (NSW) v PM (2006) 164 A Crim R 151 Fleming v The Queen (1998) 197 CLR 250 Mackey v The Queen (1977) 136 CLR 465 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Munday v Gill (1940) 44 CLR 38 Nudd v The Queen (2006) 80 ALJR 614 Parisienne Basket Shoes Pty Limited & Ors v Whyte (1937) 59 CLR 369 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 Posner v Collector for Interstate Destitute Persons (Vic) (1947) 74 CLR 461 R v Brown; R v Tran (2004) 148 A Crim R 268 R v Clunas (1992) 70 CCC (3d) 115 R v Cockrell [2005] 2 Qd R 448 R v Dennis; R v Parker [1924] 1 KB 867 R v Domican (No 3) (1990) 46 A Crim R 428 R v Halmi (2005) 62 NSWLR 263 R v Harris (No 2) [1990] VR 305 R v Hoard; R v Mihilovic; R v Morgan; R v J (1992) 29 NSWLR 242 R v Hull (1989) 16 NSWLR 385 R v Janceski [2005] NSWCCA 281 R v Khan (1984) 12 CCC (3d) 193 R v Lansdell (unreported NSWCCA, 22 May 1995) R v Landy [1943) VLR 73 R v Marsland (unreported NSWCCA, 17 July 1991) R v McDonnell (1928) 20 Cr App R 163 R v Olivo (1942) 28 Cr App R 173 R v Parker [1977] VR 22 R v Phillips (1983) 8 CCC (3d) 118 R v Rose [1982] AC 822 R v Rudkowski (unreported NSWCCA, 15 December 1992) R v Tagaras (unreported NSWCCA, 9 April 1974) Russell v Bates (1927) 40 CLR 209 United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 Weiss v The Queen (2005) 224 CLR 300 Wilde v The Queen (1988) 164 CLR 365
PARTIES:	David Anthony Swansson (Appellant) Regina (Respondent) Peter James Henry (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/1953; 2006/1742
COUNSEL:	H Dhanji (Appellant Henry) P Byrne SC, P Hogan (Appellant Swansson) W Abraham QC, L Crowley (Respondent)
SOLICITORS:	D B Stevens, Director of Public Prosecutions for the Commonwealth (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/1410
LOWER COURT JUDICIAL OFFICER:	Wood DCJ
LOWER COURT DATE OF DECISION:	10 February 2006