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R v Henry; R v Swansson [ 2007] HCATrans 312  (15 June 2007)

Last Updated: 28 June 2007

 [2007] HCATrans 312 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S174 of 2007

B e t w e e n -

THE QUEEN

Applicant

and

PETER JAMES HENRY

Respondent

Office of the Registry
Sydney No S175 of 2007

B e t w e e n -

THE QUEEN

Applicant

and

DAVID ANTHONY SWANSSON

Respondent

Applications for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 JUNE 2007, AT 12.36 PM

Copyright in the High Court of Australia

__________________

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR C.S. DOBRASZCZYK, for the applicant in both. (instructed by Commonwealth Director of Public Prosecutions)

MR H.K. DHANJI: May it please the Court, I appear for the respondent, Henry. (instructed by William O’Brien)

MR P. BYRNE, SC: May it please the Court, I appear with my learned friend, MR P.F. HOGAN, for the respondent, Mr Swansson. (instructed by Gregory J. Goold)

GLEESON CJ: Do these cases both raise the same issue?

MR BYRNE: They do effectively.

GLEESON CJ: Is it convenient to all counsel if we deal with them together?

MR BYRNE: From my point of view, certainly, your Honour.

GLEESON CJ: Yes, Ms Abraham.

MS ABRAHAM: There are in the Crown’s submission four points of principle which, in our submission, would give rise to the grant of special leave: first, the issue of whether the proposition of one indictment in one trial has current application; second and flowing from that, if the answer to that is yes, is that a rule of law, departure from which nullifies the trial, or is it merely a rule of practice, departure from which would result in an irregularity and, indeed, the result dependent on the circumstances? Again, flowing from that to further issues, first, what is a nullity? What are the consequences? In other words, can you apply the proviso if a trial is a nullity or can you argue other grounds of appeal? Finally, if the proviso does apply, if this is the only error in the trial, is in effect fundamental?

GUMMOW J: What happens where there is the further complication, as there seems to have been here, of Commonwealth and State offences?

MS ABRAHAM: In my submission, that does not, with respect, further complicate the matter because ordinarily they would be on the one indictment. As your Honours would appreciate, we are dealing with two trials and in the Crown’s submission, these issues arise in both trials, the only difference being in relation to Swansson there has been an order for there to be further grounds of appeal to be argued, being unsafe and unsatisfactory, even though the trial was a nullity.

GLEESON CJ: How does this problem arise? Why is the problem of one trial, one indictment a problem?

MS ABRAHAM: As in how did it come about that there was more than one indictment?

GLEESON CJ: Yes.

MS ABRAHAM: Merely an aberration. We do not suggest it was done deliberately.

GLEESON CJ: But why would we take on a case just to deal with an aberration?

MS ABRAHAM: In my submission, there are three reasons why this Court should deal with this issue. First, whilst it is that there has been an aberration in this particular case, it is obvious there have been some other cases that this has occurred in. To look at this issue as only an issue in relation to one trial, one indictment, in my submission, is to look at the issue too narrowly.

GLEESON CJ: But is this a case in which somebody made a slip?

MS ABRAHAM: Yes, but, in my submission, it is far more fundamental than that because it raises the issues of what is a nullity and, indeed, whilst I accept that the proviso has come under much scrutiny of recent times, it does squarely raise the issue of what is fundamental in relation to the proviso because the reasoning here was because it was a nullity, it was fundamental therefore. So, in my submission, it is much broader than the simple issue.

Secondly, in my submission, it can only be, with respect, for this Court to alter the position, as indeed the New South Wales Court of Criminal Appeal concluded. The majority concluded, with respect, that there does appear to be no rationale, no binding authority on them, the comments of this Court in 1930 being obiter, but nonetheless it is for this Court to deal with the issue both in relation to that, with respect, and - - -

GUMMOW J: That is Munday v Gill, is it?

MS ABRAHAM: Yes – both in respect of that and in relation to the proviso. His Honour the Chief Justice made those comments without further guidance from this Court that if something is a nullity, something therefore is fundamental. The third reason, in my submission, why it is appropriate and of general importance is that it is a matter, with respect, of general importance that the public have confidence in the criminal justice system. It is not suggested here that there is any miscarriage - - -

GUMMOW J: Another point of view is that the public has confidence that there will not be these slips.

MS ABRAHAM: I accept that, your Honour, but here what we have is a Court of Criminal Appeal saying in effect, with respect, or at least the majority, not being able to find a rationale for this rule, applying this rule as if it is one proposition, namely, only indictment in one trial equals a nullity. There being, with respect, an acceptance that there is no miscarriage, in my submission, from a public perception point of view one is talking about a mere technicality, and I do not mean to belittle it by saying that, but what one is talking about here is five pieces of paper or one.

In my submission, this case provides an ideal vehicle to consider each of the issues, that is, the number of indictments, the nullity issue and the proviso, because of the circumstances in which this case was conducted. By that I mean the circumstances that I refer to in paragraph 11 of our submissions. In other words, there is no other issue. Indictments were valid, the jury were empanelled on each of the indictments. The jury knew they were separate indictments. There was no objection taken. All parties were aware of what was happening. The trial was conducted in all respects as if it was a joint trial on one indictment. Indeed, in relation to these trials, of course the charge could have been on one indictment.

In the first trial, Mr Henry, there were five indictments that were identical in terms with the exception of the names of the co-conspirators, because of course each of the accused was charged. Clearly appropriately one trial, one charge and one indictment. In the second trial – again it is the same allegation of conspiracy – there were three accused, four indictments. Two of the accused in the second trial were charged with the conspiracy, Mr Swansson with aid and abet and with supply in the alternative.

So, in my submission, this is the ideal vehicle to deal with these issues and, indeed, as the New South Wales Court of Criminal Appeal said, it is the only forum that can deal with it. In fairly recent times, in 1992 the Supreme Court of Canada chose to deal with this issue in the matter of Clunas. As your Honours will be aware from our written submissions, this proposition of one trial, one indictment seems to have stemmed from a 1921 decision of the House of Lords in Crane. If one considers the analysis of that decision, in my submission - - -

GUMMOW J: What is the position in the United States?

MS ABRAHAM: In the United States there is a federal rule that permits there to be more than one indictment in a trial. It is referred to in the decision of Crane and Crane adopted the terminology in that rule as being the appropriate terminology. In other words, if it could have been on the one indictment, then it is fine. Clunas is in the case book. The federal rules are at page 107 of the case book with the green cover, page numbers in the bottom right-hand corner. At about point 3 on that page is the American Federal Rules of Criminal Procedure which were adopted.

GLEESON CJ: The outcome of what went on in the Court of Criminal Appeal is it has to be a new trial in the case of the respondent, Mr Henry, and it has to be an argument about unreasonable verdict in the case of the respondent, Swansson, is that right?

MS ABRAHAM: Yes, even though that is a nullity.

GLEESON CJ: What did Justices Simpson and Howie order? What would they have done?

MS ABRAHAM: Sorry, could I just go back. There is one further appeal pending and one of the other accused, not surprisingly, has filed a ground of appeal that is this ground, one of the co-accused. In relation to her Honour Justice Simpson, her Honour accepted the Crown’s argument that there was no binding authority. She concluded that only because of the obiter comments in Munday v Gill did she consider that it was not appropriate for that court to reconsider the issue. It is her judgment that goes through and analyses all the authorities and concludes that there is no rationale for this proposition and, but for Munday v Gill, she would have concluded that that could have happened in the New South Wales Court of Criminal Appeal.

She decided, applying Crane, that it is one proposition, one indictment, one trial equals a nullity, applying Munday v Gill, and the trial is a nullity. She decided it being a nullity, the Crown’s submission was that there has been no trial when you cannot have other grounds of appeal determined if it is a nullity and she decided that.

GLEESON CJ: On that basis you start again.

MS ABRAHAM: Yes.

GLEESON CJ: In the case of Mr Henry there is going to be another trial either – Justice Simpson would have said you start again because he has never been tried and the majority said order a new trial. So, as things stand at the moment, Mr Henry is up for trial again?

MS ABRAHAM: As things stand at the moment across the board Mr Henry has a new trial because the difference between the Chief Justice and his Honour Justice McClellan say they would have applied the proviso but for no guidance from this Court, there being no miscarriage, therefore it is a nullity because they cannot apply the proviso. Her Honour Justice Simpson said you cannot apply the proviso because it is a nullity. If that is what it is, it is fundamental. The other remaining judges, his Honour Justice Sully said it was a nullity and a new trial, equally - - -

GLEESON CJ: We are going to adjourn now but when we come back at 2.15 could you just tell us, what are the circumstances, other than those in which somebody has just made a slip, in which you might want to have the possibility of more than one indictment? We will adjourn till 2.15.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

GLEESON CJ: Yes, Ms Abraham.

MS ABRAHAM: In answer to your Honour the Chief Justice’s question just before lunch, your Honour asked in what circumstances might you want more than one indictment apart from the slip situation. Can I answer it in this way, and it is really not a direct answer, but, with respect, there is no advantage or, indeed, disadvantage in one or more than one indictment. In Clunas the court did not approach it on the basis of there being an advantage of there being more than one. I assume from the cases that have followed Clunas that it has occurred in these circumstances though that there has been more than one indictment because they may well have been committed at a different point of time. What happens now in this - - -

GLEESON CJ: Hang on, the indictment is presented, is it not, by the prosecutor at the commencement of the trial at the arraignment?

MS ABRAHAM: Certainly. In this State that is the procedure.

GLEESON CJ: There is nothing to stop a prosecutor who makes a slip just withdrawing the indictment and presenting a fresh one, is there?

MS ABRAHAM: Absolutely. In fact, that is obviously what occurs in this State. You would file an indictment when you are supposed to file an indictment a certain period of time after the arraignment and if you are going to run the one trial, you present obviously a joint indictment at the time of trial, and that is what happens, with respect. Your Honours, this issue has only ever come before the courts because somebody has got it wrong. It happened in Crane, it happened in Clunas, Munday v Gill, Talbot v Lane, Landy, Tagaras, all those cases somebody got it wrong, which is why the issue was addressed. In my submission, the appropriate approach is to look at it now in 2007 and look at what is the status of the rule. Do we keep doing something simply because it has always been done?

GUMMOW J: Do we keep doing it because section 80 of the Constitution mandates it? What is the content of the expression “trial on indictment”?

MS ABRAHAM: In my submission, “trial on indictment” is in the Constitution because it is to distinguish that from a summary - - -

GUMMOW J: That is one reason. It does not mean it is the only reason.

MS ABRAHAM: With respect, originally that section of the Constitution was to apply to all offences against the Commonwealth. It was confined ultimately to on indictment to distinguish on indictment as opposed to a summary offence. That, in my submission, is clear from the conventions beforehand and - - -

GLEESON CJ: But if at 1900, 1901 that was a technical term which had a fixed meaning and if it should be the case that the meaning included the rule that we are talking about now, what would be the consequence of that?

MS ABRAHAM: Can I answer it in two ways. One, in my submission, it did not – and if one looks at the conventions – and they are cited in Cheng in the judgment of this Court quite recently.

GUMMOW J: No one would have suggested the contrary to them. They would reel back in shock, I imagine. No one suggested the contrary in Crane either. Crane was a debate about what are the consequences. Neither side was challenging the existence of the practice rule or principle, whatever you call it.

MS ABRAHAM: I disagree, with respect. It was stated as being elementary by the - - -

GUMMOW J: No, if you look at the argument of counsel it is all about the consequences of nullity.

MS ABRAHAM: In the House of Lords, yes. That came about because in the Court of Appeal they had found that it was a nullity but had ordered a retrial, so that is why the concentration on appeal to the House of Lords was whether it was to be a retrial. With respect, prior to Crane there was no reference. One cannot find a reference in any case. In fact, in argument before the Court of Appeal in Crane there was one authority I think cited from 1848 of Parrish v White, which was a case to the contrary.

GUMMOW J: To understand it you would have to have an historical view of criminal procedure, which I do not at the moment have, and what was in the practice books in the 18th and 19th centuries which is absorbed as part of the ordinary method of legal life. There are no cases about it because no one challenged it. It was seen as obvious.

MS ABRAHAM: But what might be obvious, with respect, in the 1800s, 1900s, is not necessarily obvious now.

GUMMOW J: We were looking at 1900 actually.

MS ABRAHAM: Yes.

GUMMOW J: That is a starting point.

MS ABRAHAM: Can I indicate having looked at the authorities in this country, one obvious area to look is the book that annotates the Crimes Act because that goes back to 1900 and what commentary there was in relation to that. That is Addison and Hamilton’s book. There is no reference to that proposition of one trial, one indictment until after Crane.

GLEESON CJ: Ms Abraham, I think there is a provision in the New South Wales Crimes Act that talks about something happening as a result of which a person is put on his country or – it is concerned with arraignment, as I recollect it. This is a hazy recollection. You are called upon to plead, the indictment is presented, the accused is called upon to plead. If the accused pleads not guilty, then the consequence of that is that the accused – and I think the statute uses the expression – puts himself on his country.

MS ABRAHAM: Yes. With respect, that happened here.

GLEESON CJ: I would just like to know the terms of that statutory provision. Do not stop your argument. I will ask the same of your opponents.

MS ABRAHAM: Your Honours, in my submission, it is not clear that as at 1900 that was the case. It is clear, looking at the historical debates before the Constitution, that “on indictment” were words put in preference and having changed from “all criminal offences against the Commonwealth” to limit the number or type of offence. Section 80, in my submission, focuses on if you are charged on indictment, as these people were, trial by jury.

GLEESON CJ: Are the names of the jurors written on the indictment?

MS ABRAHAM: The numbers.

GLEESON CJ: And the result is written on the indictment?

MS ABRAHAM: Yes. So, in my submission, whilst everybody has taken it to be elementary, as her Honour Justice Simpson has analysed the cases, there is no explanation or debate about why that is so.

GUMMOW J: Sir Isaac Isaacs said it was a fundamental principle, did he not?

MS ABRAHAM: Yes, that is in Munday v Gill.

GUMMOW J: A big debate in Munday was about summary offences, was it not?

MS ABRAHAM: Yes, which is why we have argued that the comments in relation to Crane and trial by jury are obviously obiter. The important thing in the then Chief Justice’s judgment, with respect, he seems to be the only one that has attempted to analyse what the rationale is and his understanding of a rationale was that on a charge you only have the evidence relevant to that charge, which of course we do not take issue with, but that is not determined by whether or not you have one indictment or more than one indictment. That does not determine that you have only evidence in relation to one charge.

Having said that, in my submission, can we go back a step. Whilst we have focused on this is the argument, shall we have more than one indictment, really what one is looking at are the consequences. It did not happen here, like it did not happen in other cases. What are the
consequences? In my submission, what has happened is the court has taken it as one proposition. One indictment and one trial, failure to follow it is a nullity. There is no analysis in the court’s judgment in this case as to why that is so. In my submission, that is fundamental because if it is a practice and ought to remain a practice, it does not necessarily mean that the consequence is a nullity. That has a particular meaning.

So, in my submission, the consequence of what occurred, a nullity, whether the proviso applies and the like, are very fundamental points that are much, much broader than this particular case at hand. Indeed, this case has already been cited on the proposition of a nullity by the New South Wales Court of Appeal since and, indeed, has come up in argument in one other case.

GLEESON CJ: Thank you, Ms Abraham. Yes, Mr Dhanji.

MS ABRAHAM: I appreciate I am out of time. Can I just raise two final points. Your Honours, prior to this case there has already been two other cases where, albeit some years ago, disquiet has been expressed about this principle. That is Tagaras in the New South Wales Court of Criminal Appeal in the 1970s and Landy. In my submission, that is relevant that we now have three authorities that say that.

The final point, with respect, goes back to a point I made earlier and that is, in terms of the public confidence this is an eight-month trial or if we put the two of them together, eight months. There is no miscarriage, on my friend’s submissions. There was agreement with the process, on my friend’s submissions. So, in my submission, it makes it an ideal vehicle to consider the consequences of failure to follow the rule, in particular obviously a nullity which is obviously of much greater principle than this particular case and the proviso.

GLEESON CJ: Thank you. Yes, Mr Dhanji.

MR DHANJI: Thank you, your Honour. On behalf of the respondent it is submitted that firstly there is no issue of general importance raised by this case; secondly, that the one indictment rule upheld by the Court of Criminal Appeal in this case is correct; thirdly, that it was clearly open to the Court of Criminal Appeal not to apply the proviso to section 6(1) of the Criminal Appeal Act. In relation to the general importance issue, I think it has become plain from the exchange which has already occurred that what the applicant seeks this Court to do is to intervene to correct what can only be described as a slip on the part of a Commonwealth officer. It is not to the point to say that this happened in 1987.

GLEESON CJ: No, but I guess there is a question about a criminal justice process in which a slip of this nature can in effect undo an eight-month trial. It just makes you wonder. Has anybody suggested that if there was an error here, it mattered?

MR DHANJI: In the particular case, no, but in the general case, yes.

GLEESON CJ: Why is that?

MR DHANJI: In other words, in the general case there is – in the reasons of their Honours Justices Sully and Howie particularly, there is described the need for clarity that is produced by the production of a single indictment. The issues are clearly joined as between the Crown and the accused or multiple accused. The circumstance as to whether there are to be indeed joint trials or whether there will need to be applications to sever are all made clear by the filing of the indictment and service of the indictment so that everybody knows indeed what is proposed by the Crown.

There is one additional matter which indeed was not referred to by the Court of Criminal Appeal, and that is that the indictment must be signed by a person with appropriate authority. In signing the single indictment, that person with appropriate authority clearly endorses that in that person’s view on behalf of the Crown it is appropriate that the various accused be tried together or the various counts be tried together. The alternative suggested by the Crown would allow for an individual with multiple pieces of paper floating around, each of which is supposed to be the record of the court. It would provide for multiple accused each with various mere pieces of paper floating around, again each of which is supposed to be the record of the court.

As your Honour the Chief Justice has remarked, the indictment as the record of the court is indeed the place where in this day and age the numbers of the jury are recorded but also maintains the record of the trial in terms of the arraignment, the plea and ultimately the determination, including the sentence noted on the indictment and the finalisation of any result in the Court of Criminal Appeal is ultimately noted on the indictment as the perfection of the record. All of those matters are consistent with the existence of the rule. Indeed, as was remarked in the Court of Criminal Appeal by Chief Justice Spigelman and Justice Sully particularly, the Criminal Procedure Act itself is clearly predicated upon the inherent assumption of one indictment, one trial.

In terms of any issue of public confidence, it becomes a somewhat more fundamental issue, in my respectful submission. The nature of the rule is such that the indictment is the document that founds the jurisdiction of the court in the particular proceedings. The failure to comply with the rule led to the result that the court’s jurisdiction was never properly invoked to try the respondent. In terms of public confidence, there would be a greater, in my submission, undermining of public confidence if a result was left to stand where a court which had never properly invoked its jurisdiction was allowed to try, ultimately convict and sentence to a lengthy term of imprisonment a subject. So in those circumstances it is submitted that it is no minor matter in terms of any issue of public confidence. It is indeed a matter where there can be nothing more fundamental than the proper invocation of the court’s jurisdiction.

Just in relation to that, reference was made to what was said by Chief Justice Isaacs in Munday v Gill. If I can take your Honours to page 57 of the Crown’s book of authorities, his Honour about four lines from the bottom at page 54 of Munday v Gill referred to Crane’s Case and Dennis’s Case and said this:

In the former, Lord Atkinson said it is “elementary in criminal law” that the issue of “not guilty” in separate and independent indictments cannot be tried together. No one would suggest that any other rule should be applied to an accusation by way of criminal information by the Crown.

His Honour was wrong in one respect because that is precisely what is now being suggested.

GLEESON CJ: How many indictments were there against your client?

MR DHANJI: One.

GLEESON CJ: And there were two indictments against Mr Byrne’s client?

MR DHANJI: That is so.

GLEESON CJ: Those being on pages 112 and 113. So your client is getting a free ride here.

MR DHANJI: No, with respect, your Honour. There was one indictment in relation to Mr Henry but in the proceedings in which he was tried, purportedly the one proceedings, there were five separate indictments. In other words, there were five accused tried together, of whom the respondent Henry was one. In relation to each - - -

GLEESON CJ: I see. There were some co-accused who are not represented here today?

MR DHANJI: That is right. I think in terms of the five, there were some acquittals. I think there was one - - -

GLEESON CJ: Perhaps I will ask Mr Byrne about the Swansson indictments which are on pages 112 and 113, but there was only one indictment for your client?

MR DHANJI: Only one indictment in relation to Henry but five indictments presented at his trial.

GLEESON CJ: When you say five indictments presented at his trial, I presume the judge told the jury in accordance with the usual practice that there were a number of trials going on here?

MR DHANJI: Yes, your Honour. If I can answer that in this way. That proposition was dealt with by his Honour Justice Howie at application book 258 at line 39 where his Honour said this:

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. I do not understand that a jury empanelled to determine one proceeding could determine multiple proceedings.

GLEESON CJ: On any view, what was going on here was a number of trials taking place.

MR DHANJI: Purportedly, yes, simultaneously, whereas - - -

GLEESON CJ: It always happens when there is more than one accused. The judge tells the jury, does he not, that there is more than one trial going on here?

MR DHANJI: The distinction, in my submission, is this, that there is in the usual case one proceeding in the course of which the trials of various accused are held and it - - -

GLEESON CJ: What Justice Howie described as separate trials taking place at the one proceeding.

MR DHANJI: Yes.

GLEESON CJ: That happens every time there are a number of accused, does it not?

MR DHANJI: Yes, your Honour, whereas - - -

GLEESON CJ: And judges tell juries that because different pieces of evidence are relevant to different trials, for example.

MR DHANJI: That is so, although some care should be taken because in terms of instruction to juries, it is obviously convenient to tell the juries where the point of demarcation and proper understanding - - -

GLEESON CJ: Yes, but it is always important to make sure the juries do not think that they stand or fall together.

MR DHANJI: Yes, of course. If I can perhaps pick up on what Justice Howie says there in terms of the difficulty with respect to there being in effect multiple proceedings, as opposed to multiple trials. His Honour has referred to the judgment of Justice Dixon in Munday v Gill. That particular passage is set out at application book 279 in the respondent’s submissions. What his Honour Justice Dixon there said at line 31:

“But there is no way allowed by law of putting in charge of one jury at one time two or more prisoners arraigned on 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.”

The remarks in the immediately preceding paragraph taken from Justices Gavan Duffy and Starke are to similar effect. That is:

“ . . . in 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 –

Again, there is reference to or focus upon the nature of criminal proceedings, the foundation being the indictment, the role of the indictment with respect to the jury, and that is effectively, as your Honour the Chief Justice has already remarked, the accused is called upon to plead, he pleads, puts himself thereby on his country for trial, the jury is empanelled, sworn to try the indictment which has joined issues between the parties in the proceedings.

GLEESON CJ: It may be that it would never have occurred to people that there could be more than one indictment in respect of one criminal proceeding with one jury than that there could be more than one declaration in a common law action tried by a jury or, to put it in modern terms, more than one statement of claim.

In the olden days before the Judicature Act came to New South Wales, in common law procedure the initiating pleading was called a declaration. After the declaration and the plea and the replication and the rejoinder or whatever else came together, there was produced a document called “Issues for trial” and it was the issues for trial that determined the issues that went before the jury. That was in common law civil procedure. As I say, it would never have occurred to anybody that there would be more than one declaration and that is probably why it never occurred to anybody in criminal pleading that there would be more than one indictment perhaps.

MR DHANJI: Your Honour, I am not in a position to - - -

GLEESON CJ: In the olden days most civil actions were tried by jury too.

MR DHANJI: The situation pertaining to this respondent, however, is that the various rules in relation to – the basis for the jurisdiction of the court came from a combination of the District Court Act and the Criminal Procedure Act. The Criminal Procedure Act in particular, as has been indicated in the judgments in the Court of Criminal Appeal, is predicated on the assumption that the rule still applies. There are rules for severing indictments, which would be quite unnecessary were it the case that, indeed, separate indictments could simply be heard together, rules in relation to filing indictments and the like. The provisions in that regard are firstly based on a need for or the assumption of one indictment and, secondly, set out really the scheme by which various accused are either joined or separated at trial.

GLEESON CJ: Have you looked at Archbold’s Criminal Pleading, Evidence & Practice to see what the explanation for this rule is?

MR DHANJI: I looked at Archbold and certainly there was confirmation of the existence of the rule but, certainly in terms of the edition I looked at, little by way of explanation with respect to the rule. In terms of the rule, fundamentally, in my submission, it becomes a situation where – the situation is entrenched such that it requires legislative intervention should the position – for the position to be changed.

If I can address your Honours in relation to the proviso, it is submitted that there is no issue of general importance in relation to the proviso, essentially for similar reasons. The Crown accept that this is a practice not to be encouraged. This Court has on numerous occasions acknowledged that there will be cases where the defect is such that the proviso will not apply. Your Honour the Chief Justice in Nudd stated that:

It is impossible to state exhaustively, or to define categorically, the circumstances in which such a defect will occur.

Two things, in my submission, follow from that. Firstly, it was open to the Court of Criminal Appeal to determine that this was such a case, that is, that the defect was of a nature that it was appropriate to uphold the appeal. Secondly, the determination that this is a case to which the proviso either does or does not apply will do nothing in terms of defining the categories of case in which the proviso may or may not apply. Indeed, in terms of what can be subject to the proviso, I have included in the list of authorities the case of Maher. Indeed, in Maher there is some discussion as to the process of calling the accused on for trial, swearing - - -

GLEESON CJ: Mr Dhanji, I notice that we only have three of the indictments because there are people missing, but the prosecution against your client, as appears from page 1, was commenced by the Commonwealth DPP.

MR DHANJI: Yes, your Honour.

GLEESON CJ: If you look at pages 112 and 113 which are the two indictments against Mr Byrne’s client, one was a prosecution commenced by the Commonwealth DPP and one was a prosecution commenced by the State DPP. For whom did counsel appearing for the prosecution at the trial appear?

MR DHANJI: That was in the trial of the respondent Swansson but, as I understand it, counsel appearing for the Crown appeared on behalf of the Commonwealth Director of Public Prosecutions.

GLEESON CJ: Who appeared for the State Director of Public Prosecutions?

MR DHANJI: My friend tells me that they appeared for both.

GLEESON CJ: They announced their appearance for both?

MR DHANJI: I am told that is the case.

GLEESON CJ: What ordinarily happens when there are alleged State offences and alleged Commonwealth offences?

MR DHANJI: They are joined on the one indictment.

GLEESON CJ: And who is the prosecutor? Is it the Commonwealth DPP or the State DPP who is shown on the indictment as the prosecutor?

MR DHANJI: I think it varies depending upon the circumstances.

GUMMOW J: What is the statutory basis for that?

MR DHANJI: My friend is perhaps in a better position, but I understand there are provisions which allowed – my friend tells me that there are delegations under the Commonwealth DPP Act and presumably also the State DPP Act.

GUMMOW J: But what is it that permits the production of the one indictment which is multifariously federal and State? Is there some federal law that permits that?

MR DHANJI: I am unaware as to whether there is some federal law that permits that.

GUMMOW J: It goes back to section 80, it seems to me.

MR DHANJI: But that is not a situation that is related to Mr Henry’s case. If I can just briefly take your Honours to the decision in Maher, that was a case that was also concerned with irregularities in relation to the manner in which the jury had been sworn with respect to the indictment. Counts were added to the indictment and the jury had not been sworn in relation to those counts. It is analogous to this present situation in the sense that if one accepts – and, in my submission, your Honours would – what this Court said in Munday v Gill, that is, that you can only have one jury in relation to one indictment, there were therefore fundamental problems in relation to the swearing of the jury with respect to the various indictments. What was said at page 233 was this:

The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory - - -

GLEESON CJ: Thank you, Mr Dhanji. Mr Byrne, what is that section that says - - -

MR BYRNE: Your Honours, I do not know the section, but I think it is a repealed section. Your Honour is talking about the section which talks of the accused person being put on his country?

GLEESON CJ: Yes.

MR BYRNE: There is certainly a section which contained those words in the Crimes Act in its original formulation in 1900, but I think it has disappeared now. Under the terms of the Criminal Procedure Act there was a provision – I have just got a feeling it is in the 360s or something like that of the old Crimes Act dealing with procedure in criminal trials, but those words that your Honour used – my learned friend, Mr Dhanji has just referred your Honours to the decision of this Court in Maher in 163 CLR. If I could take your Honours to page 229 of that decision and there is something there in the judgment of the Court which may be of assistance. At about half way through - - -

GUMMOW J: Which case are you looking at?

MR BYRNE: It is Maher, your Honour, 163 CLR. It is a report that was included in Mr Dhanji’s materials. Page 221 is the commencement of the report. The particular passage I wanted to take your Honours to is at 229. There, at about point 3 on the page, the observation is made:

Giving the accused in charge of the jury is a traditional part of the criminal procedure –

and reference is made the most recent edition at that time of Archbold, and then a further observation:

The procedure, of long historical standing, is described by Dearsly –

His citation continues about half way through where the observation is made:

‘Upon this arraignment he has pleaded not guilty, and for his trial hath put himself upon the country, which country you are; so that your charge is to inquire whether he be guilty of the felony whereof he stands indicted, or not guilty.’”

There is a further observation to the work of Forsyth where it is said:

By a plea of not guilty, an accused puts himself “upon the country” or, to use the words of the Code, demands to be tried by a jury –

Those words were certainly in the Crimes Act as it was originally formulated in 1900 but, as I say, I am almost certain that they have disappeared and that form of charging a jury or putting an accused person in the charge of the jury has also fallen into obsolescence, that the notion of the accused being put upon his country is no longer used, at least verbally in criminal proceedings in New South Wales. We will endeavour to locate the actual section in which those words appear but I apologise for not having them ready at hand. Your Honours, the respondent Swansson, is in a somewhat unusual position because it is our contention that his appeal to the - - -

GUMMOW J: Do you see at Maher, page 234, last paragraph:

it has not been necessary to determine any question relating to the joinder in the one indictment of charges under the laws of the Commonwealth and charges under the laws of a State nor to consider what are the applicable procedural laws to apply to a trial on any such indictment.

MR BYRNE: Yes, that is in some short submissions that have been filed on behalf of the respondent, and I apologise, very late. The point is raised that in future there will be more serious complications in joining in the one indictment a charge which is brought under Commonwealth law and a charge which is brought under State law because if there is such an indictment containing counts of those different kinds, the jury will be entitled to bring in a majority verdict in relation to the State laws but is required to bring in a unanimous verdict in relation to the Federal laws and that is likely to create complications. I am not aware of any case in which that issue has in fact been - - -

GUMMOW J: South Australia would have been the place for it to happen, I suppose.

GLEESON CJ: It could now happen in all States, I think.

MR BYRNE: I think it can potentially happen in all States but I am - - -

GLEESON CJ: I am not sure about Queensland but I think everywhere else except Queensland you can now have majority verdicts, at least for certain offences?

MR BYRNE: Yes, I think that is right. South Australia still requires unanimous verdicts in murder cases, at least last I looked at that issue. Your Honours, the point that I was about to make in relation to the position of the respondent Swansson, is that his appeal to the Court of Criminal Appeal has not in fact been dealt with. All that the Court of Criminal Appeal has said in relation to his appeal to that court is that they have granted him leave to add an additional ground of appeal, that is, the ground of appeal on which Mr Dhanji’s client was successful in the Court of Criminal Appeal. If I can just remind your Honours of the actual orders that were made by the Court of Criminal Appeal in this respondent’s case, they are recorded in the judgment of the Chief Justice - - -

GLEESON CJ: Mr Dhanji’s client succeeded on a ground in addition to this one?

MR BYRNE: No, your Honour.

GLEESON CJ: What is the ground that you have been given leave to add?

MR BYRNE: This ground.

GLEESON CJ: Only about the jury, about the indictments?

MR BYRNE: There was a number of grounds before the Court of Criminal Appeal challenging the correctness of the jury verdict and this was one of those unusual cases in which the trial judge had given a certificate saying that in his opinion there were arguable grounds, that the verdict was unreasonable and, indeed, he said in the remarks on sentence that he did not agree with the jury verdict and that if he had been the person to decide the question of this respondent’s guilt, he would have found in his favour. But there were a number of grounds of appeal before the Court of Criminal Appeal essentially challenging the correctness of the verdict on the basis that it was unreasonable and relying in a large measure on the observations that had been made by the trial judge and the certificate that he had granted.

When the matter got to the Court of Criminal Appeal, the leave of that court was sought to add an additional ground of appeal based on the one jury, one indictment principle that Mr Dhanji’s client had already before the court. In fact, the proposition was put that the circumstances of this respondent are materially different from those of the respondent, Mr Henry, because in this respondent’s case not only were there multiple indictments - - -

GLEESON CJ: Do you mean dual indictments?

MR BYRNE: Multiple indictments against other accused in his case. His trial, in fact, lasted three months. Two weeks of that time was spent on jury deliberations after they had been sent out to consider their verdict, but in his case there were four indictments, one each against each of his co-accused and two against him.

GLEESON CJ: That is the two on page 112 and 113?

MR BYRNE: Exactly, your Honour, yes.

GLEESON CJ: In relation just to your client, what should have happened?

MR BYRNE: In terms of?

GLEESON CJ: Who should have been the prosecutor? If they wanted to charge your client with the two offences described on pages 112 and 113, one a Commonwealth offence and one a State offence, what should they have done?

MR BYRNE: This was a prosecution which at all times, as I understand the position, was under the charge of the Commonwealth Director of Public Prosecutions and in those circumstances the Commonwealth Director of Public Prosecutions or somebody authorised to act on his, as he now is, behalf should have been the prosecutor.

GLEESON CJ: I am not denying it, but I am just questioning it, what authority does the Commonwealth Director of Public Prosecution have to charge people with offences against the New South Wales legislation?

MR BYRNE: I have to say that I am not immediately - - -

GLEESON CJ: Some delegation of the kind – I think we have looked at this in the past, actually.

MR BYRNE: It arose in a oblique way in the case which was before this Court involving an appeal against the inadequacy of a sentence that was imposed on Mr Bond from Western Australia. The power of the Commonwealth Director of Public Prosecutions to rely on State provisions arose in that case.

GLEESON CJ: Anyway, it is extremely common for people to be prosecuted for both federal and State offences, particularly in relation to drugs where the Commonwealth law prohibits importation, for example, and the State law prohibits trafficking.

MR BYRNE: Yes.

GLEESON CJ: The way it is done, is it, is that if the Commonwealth people are in charge of what I might call the investigation, the Commonwealth Director of Public Prosecutions will charge with both Commonwealth and State offences?

MR BYRNE: When your Honour says it is the extremely common, in my experience it is not, and - - -

GLEESON CJ: I have certainly sat on many criminal appeals in which drug dealers have been alleged to have broken both the Commonwealth law and the State law typically by importing and then trafficking.

MR BYRNE: The vast majority of those cases, at least in my experience, your Honour, have been cases where there have been pleas of guilty so that issues relating to the correctness of the trial proceedings and so on have not been raised.

GLEESON CJ: But even so, how is it done? How should it have been done in this case?

MR BYRNE: As I understand the procedure, the Commonwealth Director of Public Prosecutions was able to bring a single indictment charging both Commonwealth and State offences if that was the intention. There is a curious aspect of this case that I have to confess I am not - - -

GUMMOW J: Ordinarily, officers of the Commonwealth execute the laws of the Commonwealth, they do not normally execute the laws of the States.

MR BYRNE: But I think there are arrangements which permit Commonwealth officers and certain designated officers - - -

GUMMOW J: Yes, I know, that is what we have considered in a whole number of cases, the validity of that sort of arrangement; McLeod and Bond and so on.

MR BYRNE: That was not an issue that was litigated in this matter, at least in the Court of Criminal Appeal, I should say.

GUMMOW J: No, no one seems to have been aware that they were acting in federal jurisdiction?

MR BYRNE: I think that was understood. It was always a matter that was prosecuted by representatives of the Commonwealth Director of Public Prosecutions. The very nature of the appeal books before the Court of Criminal Appeal disclose that much, but there is a curious aspect to this case in that whilst the respondent - - -

GUMMOW J: Insofar as there were procedures under the New South Wales Act of, what is it, 1996 Criminal Procedure Act?

MR BYRNE: 1986, your Honour, yes.

GUMMOW J: Yes, that was picked up by the Judiciary Act. That is what was going on. It was not applying of its own force.

MR BYRNE: I accept what your Honour says in relation to that.

GLEESON CJ: Is the origin of this rule in the days of grand juries and the grand jury finding a bill of indictment?

MR BYRNE: Your Honour, looking at Crane there does not appear to be any analysis of the origin of the rule and there was not any material put before the Court of Criminal Appeal in this case which analysed the origin of the rule as the observation has been made.

GLEESON CJ: I am looking at the 1900 edition of Archbold’s Criminal Pleading, Evidence & Practice, the edition that was in force at the time our Constitution was drawn, and the first sentence in it is:

An indictment is a written accusation of one or more persons of a crime, preferred to, and presented upon oath by, a grand jury; a bill of indictment is such written accusation before it is so presented.

And they then go on to talk about a grand jury finding a bill of indictment and:

The grand jurors must be sworn or affirmed before they can find a bill of indictment laid before them.

MR BYRNE: I will stand corrected on my knowledge of the history of the criminal law in New South Wales but I have a distinct feeling that the grand jury concept was never incorporated - - -

GLEESON CJ: No, I have just been questioning whether that was the origin of the rule.

MR BYRNE: It may have been in England, but I do not think - - -

GLEESON CJ: On page 92 the authors say:

If a defendant against whom an indictment has been found is present in court, or in the custody of the court, he may at once be arraigned upon the indictment –

I do not know what the historical origin of this is but what is concerning me, to put it bluntly, is what sort of assumptions you interfere with if you unsettle the rule.

MR BYRNE: Your Honour, in the Court of Criminal Appeal three of their Honours in different ways looked at the justification for the one jury, one indictment rule. If I can take your Honours to the observations made by Justice Howie at page 257 of the application book at paragraph 184. Justice Howie said:

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 - - -

GLEESON CJ: I am not quite sure about your assertion concerning the obsolescence of some words that were used earlier, at least in the form in which it stood at May 1998. The Crimes Act (NSW) in section 395 said:

If any person arraigned on an indictment pleads thereto “not guilty”, the person shall, without further form, be deemed to have put himself or herself upon the country for trial - - -

MR BYRNE: Yes, your Honour, but that provision, as far as I am aware, has been repealed by provisions which are now contained in the Criminal Procedure Act. Those provisions were introduced, I think, in 2001 but certainly since 1998 and, as I say, I do not have the legislation in front of me but I am almost certain – Mr Dhanji thinks it may have survived but, as I say, we will clarify that matter.

GLEESON CJ: I understand part of the argument against you to be, let it be assumed there is a rule, what kind of a rule might be another question, but a rule, one indictment, one jury. There is still a question as to what is the consequence of non-compliance with that rule?

MR BYRNE: Yes.

GLEESON CJ: What is your submission about that?

MR BYRNE: In our submission, non-compliance with that rule renders the trial proceedings a nullity in the sense that those proceedings cannot survive challenge. That appears to be the unanimous finding of all of the authorities that bear on the topic. The only difference that can be gleaned is that Canadian case which is in a very different situation where Canada has a federal criminal law system, essentially. The facts in that case were that it was the accused person who requested that the matter be dealt with that way and for him then to turn around and complain about that was something that was seen to be unjustified and lacking merit. In the judgments of the Court of Criminal Appeal in - - -

GLEESON CJ: What has merit got to do with it if it is a nullity?

MR BYRNE: If it is a nullity, it means that there has not been a trial according to law. It may be seen as being a technical thing. In this respondent’s case it was more than technical because there was in his case two indictments presented against him which purported to represent a primary charge and an alternative charge but in those indictments it was not made clear which was the primary, which was the alternative charge. That ultimately emerged in the course of the proceedings as the evidence unfolded and as the prosecution case was presented but then in the end, as the matter was left to the jury – and this is at page 127 of the application book – that unusual procedure seemed to have been in the particular circumstances of this case completely unnecessary because the directions given by the judge to the jury were in these terms:

I direct you that if you find the accused not guilty of the first charge –

that was a Commonwealth charge –

you must as a matter of law find him not guilty of the alternative charge.

So as the case proceeded the alternative charge was unnecessary.

GLEESON CJ: Thank you, Mr Byrne.

MR BYRNE: May it please your Honours.

GLEESON CJ: Yes, Ms Abraham.

MS ABRAHAM: Your Honours, each of my friends have referred to the judgment of Justice Howie as to reasons why this rule should continue. In my submission, it is important to note two things; one, they were never reasons provided anywhere before as the reasons why it ought to continue and, two, that it is not the reasons of the court and, three, they do not justify an inflexible rule.

Secondly, in my submission, my friends – particularly my friend, counsel for Mr Henry, has made repeated reference to the Criminal Procedure Act and the inherent assumption in that. In my submission, that is incorrect and indeed his Honour the Chief Justice has relied upon the Criminal Procedure Act and, in my submission, inappropriately. There is nothing in that Act that prevents what occurred here and, indeed, the learned Chief Justice points to a couple of provisions, one being, for
example, that you cannot have more than three counts on an indictment. It is clear law that of course you can have more than three counts on an indictment and so, in my submission, that is not a barrier to what occurred here.

It is important to note that in relation to Munday v Gill there was similar legislation in force, to similar effect, as in the current case, and Clunas exactly the same. The terms of the legislation are to the same effect. Third, my friend said that there is no jurisdiction. The Crown takes issue with that. The accused were individually arraigned. The documents were handed up one at a time.

GUMMOW J: If Justice Gaudron were here she would say you are not the Crown. You are an officer of the Commonwealth.

MS ABRAHAM: Certainly, your Honour. Your Honour, in relation to, as I said, the issue of jurisdiction, in my submission, what happened here was precisely what would happen in a trial with a joint indictment. They were put in the charge of the jury on that indictment and, as I said, the individual documents were presented and the jury saw that. In relation to Archbold, the reference after Crane is simply to Crane stating the proposition. There is no analysis in that book at all on why the provision exists or the proposition exists. That, in my submission, is important.

My friend also made the point that it was open to the Court of Criminal Appeal to determine to not follow the authority and indeed to apply the proviso. In my submission, the findings of the court were that they could not because it had to be for this Court to do so and so it can only be, with respect, for this Court to deal with the issue.

In relation to Mr Swansson’s matter, my friend argues that the appropriate consequences at the trial is a nullity. If that is correct – and the Crown disagrees with that, but if that is correct, with respect, how does he get an argument on the merits of an unsafe and unsatisfactory, if there has not been a trial which is one of the Crown’s points in terms of one looks at the consequences of what has occurred here; that nobody has analysed why it is said to be a nullity, a failure to follow this, and what that means and, in my submission, they are matters of general importance.

GLEESON CJ: We will adjourn for a short time to consider the course we will take in this matter.

AT 3.14 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.17 PM:

GLEESON CJ: In both of these matters, R v Henry and R v Swansson, we are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed.

We will adjourn to reconstitute.

AT 3.17 PM THE MATTER WAS CONCLUDED