Indictment

 Gibbs CJ, Wilson, Dawson JJ (would grant special leave but dismiss the appeal)

 1. The applicant was, on 8 March 1984, convicted after a trial by jury in the District Court of New South Wales on a charge which was laid in the indictment in the following terms: “For that he between the first day of December 1982 and about the fifth day of April 1983, at Sydney, in the said State, and elsewhere did conspire with Andrew Wellington Lowe, Robert Norman Drury, and Robert Sydney Halliwell to import into Australia prohibited imports to which s 233 b of the Customs Act 1901 applied, to wit narcotic goods consisting of heroin.”

2. He was sentenced by the learned trial judge to 11 years’ imprisonment with hard labour to date from 4 April 1983 (the date on which he was taken into custody) and the learned trial judge prescribed a minimum period of seven years’ imprisonment with hard labour to date from 4 April 1983. He gave notice of appeal to the Court of Criminal Appeal of the Supreme Court of New South Wales against his conviction and sentence, but did not pursue the appeal against conviction. The Crown also appealed, on the ground that the sentence was inadequate. The Court of Criminal Appeal dismissed the applicant's appeal, but allowed the appeal of the Crown and substituted a sentence of 18 years’ imprisonment to commence from 4 April 1983, with a minimum term of 12 years commencing from the same date. The applicant now seeks special leave to appeal to this court.

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5. On behalf of the applicant it was submitted that the maximum term of imprisonment to which he was liable was that provided by s.235(2)(e) - two years. The starting point of this submission was that s.233B(1)(cb) and s.235(2) together create a number of separate offences, including one created by the combined effect of s.233B(1)(cb) and s.235(2)(c)(ii) and another by s.233B(1)(cb) and s.235(2)(e). The former of those offences has, as its ingredients, (so it was submitted) not only the matters described in s.233B(1)(cb), but also the facts that the narcotic goods in relation to which the offence was committed consisted of a quantity of a narcotic substance that was not less than a trafficable quantity and that the accused had been previously convicted of an offence of the kind described in s.235(2)(c)(ii). Then it is said that if these facts were elements of the offence they should have been charged in the indictment and proved to the satisfaction of the jury. The indictment did not charge that the heroin was of a trafficable quantity or that the applicant had been previously convicted of an offence of the kind to which s.235(2)(c)(ii) refers. Therefore, it was submitted, the applicant was not charged with the offence created by s.233B(1)(cb) and s.235(2) (c)(ii) and was punishable only as provided by s.235(2)(e). It was further submitted that if, on the proper construction of these provisions of the Customs Act, the issues arising under s.235(2)(c)(ii) were to be decided by the judge and not by the jury, s.235 would be invalid, at least in part, as being in contravention of s.80 of the Constitution, which provides (inter alia) that "the trial on indictment of any offence against any law of the Commonwealth shall be by jury". It was finally contended that if all these submissions were rejected the two matters referred to in s.235(2)(c)(ii) were nevertheless circumstances of statutory aggravation, and should have been charged in the indictment and found by the jury.

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16. There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first-mentioned kind, the circumstances of aggravation become elements of a distinct offence and therefore must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction. The rule of practice laid down in R. v. Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge. Although it would be an exaggeration to say that the rule of practice in R. v. Bright has been generally applied in cases where the circumstances of aggravation increase the maximum punishment but do not change the offence, it is a beneficial rule and ought generally to be followed.

17. It is, as Street C.J. recognized in R v. Martin, a real question whether s.235, by requiring the judge to be satisfied of the existence of the circumstances of aggravation, renders the rule of practice inapplicable to trials for offences against s.233B. However, the framers of the Customs Act should have contemplated that in Queensland and in Western Australia at least the practice as embodied in the Criminal Codes would be applied by the Judiciary Act and that practice has in fact been followed without apparent inconvenience. There is no reason why the satisfaction of the judge should not be founded upon the findings of the jury. We consider that the practice has not been abrogated by s.235 and should be followed in all States. Where the circumstances of aggravation described in s.235(2) are relied on, they should be charged in the indictment. If necessary, of course, an alternative charge, omitting the circumstances of aggravation, could be laid in addition.

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19. The practice which ought to be observed was not followed in the present case. However, no objection was taken to the course followed at the trial or to the charge delivered by the learned trial judge to the jury. There was no dispute as to the quantity of the heroin involved and the evidence on that point was uncontradicted and unchallenged. No question was raised as to the accuracy of the material concerning the previous conviction. It is quite impossible to suggest that any miscarriage of justice occurred.

Mason J (would dismiss the appeal)

20. This is an application for special leave to appeal from a judgment of the New South Wales Court of Criminal Appeal increasing the applicant's sentence following his conviction on a charge of conspiring to import a prohibited import contrary to s.233B of the Customs Act 1901 (Cth) ("the Act"). The circumstances of the applicant's conviction, the history of appeals and the relevant statutory provisions have been described in the joint judgment of Gibbs C.J., Wilson and Dawson JJ. and there is no need for me to repeat them here. I agree with their Honours, for the reasons that they give, that neither the first nor second of the applicant's submissions can succeed. However, in relation to the third submission, I am unable to agree that the circumstances in s.235(2)(c)(ii) that aggravate the maximum penalty that may be imposed should be included in the indictment and proved to the jury.

Brennan J (would allow the appeal)

38. It cannot be right to identify a s.233B offence which attracts the basic penalty as the "offence" for the purpose of s.80 in a case where facts prescribed by s.235(2)(c) or (d) are found to exist and where the offender becomes liable to a greater maximum penalty. If an offence were identified for the purpose of s.80 only by reference to those elements which a jury might find to exist, the guarantee given by s.80 would be nugatory: in a prosecution on indictment, no issues would have to be tried by jury save those which Parliament ordained to be tried by jury. Given that Parliament may determine which offences are to be prosecuted on indictment and which are not, the Parliament has no power to determine that offences in the former category may be tried otherwise than by jury. In my opinion, offences which attract the maximum penalties prescribed by s.235(2)(c) and (d) are offences distinct from s.233B offences and each element of the distinct offences is the subject of the s.80 guarantee.

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42. If this conclusion were to prevail, it would redound to the advantage of an applicant who is utterly without merit. The applicant was involved in trafficking in heroin after a previous conviction for possessing a prohibited import. The Court of Criminal Appeal, allowing a Crown appeal against sentence and dismissing the applicant's appeal, imposed a sentence of 18 years imprisonment and specified a minimum term of 12 years. Although the Constitution constrains me to allow the applicant's appeal, I should not wish to cast the slightest doubt on the correctness on the merits of the sentence which the Court of Criminal Appeal imposed. The suffering of heroin addicts and the malignant avarice of those who feed upon that suffering make the illegal importing of large quantities of heroin a crime deserving of rigorous punishment. But the Constitution must prevail. Trial by jury is guaranteed by s.80 of the Constitution when an offence against a law of the Commonwealth is tried on indictment. The offence with which the applicant was charged and the offence for which he was convicted was an offence constituted by elements drawn from s.233B(1)(cb) alone. He cannot be sentenced as for another offence - an offence constituted in part by s.233B elements and in part by elements drawn from s.235(2)(c) - for which he was not convicted on the jury's verdict. Had he been charged on indictment with the offence for which he was sentenced, the law which created that offence would have precluded its trial by jury. By providing that the issues derived from s.235(2)(c) are to be tried by a judge, that paragraph denies the guarantee given by s.80 of the Constitution. In my opinion, the Parliament's attempt to provide condign punishment for persons involved in the illegal importing of narcotic goods or in the possession of illegally imported narcotic goods has miscarried for failure to observe the imperative requirements of s.80. Parliament ignored Blackstone's warning in his Commentaries (1769), Book IV, p.344:

" ... inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern."

43. The failure to observe the imperative requirements of s.80 carries the deplorable consequence that invalidity strikes provisions enacted for the suppression of some of the most serious crimes in the criminal calendar.

Deane J (would dismiss the appeal)

76. There is no dispute that the trial of the present applicant was a "trial on indictment". That being so, s.80 required that the trial of all elements of the substantive offence alleged against him be by jury. While the Parliament was competent to define the elements of an offence under the provisions of the Act for the limited purpose of the proper statutory construction of the provisions which it has enacted, such definition cannot exclude the effective operation of a fundamental law of the Constitution from which it derives both its existence and its legislative purposes (cf. University of Wollongong v. Metwally [1984] HCA 74; (1984) 59 ALJR 48, at pp 50-51, 56, 58-59, 60, [1984] HCA 74; 56 ALR 1, at pp 5-7, 15, 19-20, 22-23). Ultimately, the critical question in the present case is the identification, as a matter of substance, of the elements of the offence for which the applicant in the present case was purportedly punished. Under the combined effect of s.233B(1)(cb) and s.235(2), the maximum penalty for the offence with which the accused was charged and of which he was found guilty by the jury was, if no more appeared, a fine not exceeding $2000 or imprisonment for a period not exceeding two years or both. Under s.235(2)(c) and (d), the maximum penalty was drastically increased in the event that "the Court", meaning the presiding judge, was satisfied of other matters. Thus, in the case of the applicant, the maximum penalty was increased to imprisonment for life upon the Court being "satisfied" that a "trafficable quantity" was involved and that the applicant had a prior conviction of a specified kind.

77. At the end of the day, one is left with the question whether the various combinations of primary conviction and additional ingredients which attract much higher maximum punishments under pars. (c) and (d) of s.235(2) are, as a matter of substance, the same offence as the bare primary offence punishable under s.235(2)(e). It appears to me that the answer to that question is that they plainly are not. The offence punishable under s.235(2)(e) is the simple offence of which the elements are set out in s.233B(1)(cb). The offences in respect of which punishment is provided by pars. (c) and (d) of s.235(2) are offences including the additional elements of commercial quantity or trafficable quantity and prior conviction or trafficable quantity alone. It would be to confound substance with form to say that an offence with respect to a very small quantity of a proscribed drug for personal use which was punishable under s.235(2)(e) with a maximum penalty of a fine of $2000 and imprisonment for two years was the same offence as an offence with respect to a trafficable quantity of that proscribed drug committed by a person with a relevant prior conviction which was punishable under s.235(2)(c)(ii) and in respect of which the maximum penalty was imprisonment for life. The offence for which the applicant was punished under s.235(2)(c)(ii) involved two essential elements which were not elements of the primary offence under s.233B(1) (cb)…

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78. The conclusion that the offences punishable under s.235(2)(c) and (d) of the Act are, as a matter of substance, different offences and with different elements from the bare primary offence punishable under s.235(2)(e) effectively disposes of the issue in the present case. As has been seen, the Act makes the existence of the additional elements essential to the establishment of the offences punishable under s.235(2)(c) and (d) a matter for the satisfaction of the trial judge alone. That being so, s.235(2)(c) and (d) purport to create separate offences of which the essential elements necessary to distinguish them from the simple offence under s.233B(1)(cb) are not matters to be determined by the jury. They are, if not admitted, to be determined by a judge alone. By purporting so to provide, those provisions contravene the guarantee of trial by jury of s.80 of the Constitution. They are invalid.

Studdert J

1. The appellant, Robert Neil Kennedy, appeals against his conviction in relation to two sexual offences as to which the jury found him guilty following his trial in the Dubbo District Court in February of this year.

2. The indictment contained three counts: the first count as initially framed charged him with having sexual intercourse with LAM without her consent knowing that she was not consenting and charged that this offence occurred "on or about 29 July 1981". The second count charged him in the alternative with carnal knowledge of LAM at that same time. The third count charged him with having sexual intercourse with LAM without her consent knowing that she was not consenting between 1 June 1986 and 30 June 1986.

3. The appellant was arraigned on 21 February 2000 but the trial was adjourned to 23 February 2000. On that date the Crown Prosecutor applied to amend Counts 1 and 2 by substituting for "on or about 29 July 1981" the words "between 29 July 1981 and 23 April 1983". Counsel for the appellant did not object to the amendment and the trial judge allowed it. Upon arraignment on the amended indictment the appellant pleaded not guilty and the trial then began.

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26. Against this review of the evidence, I turn to consider the various grounds of appeal.

Ground 1:           A miscarriage of justice was occasioned by the granting of leave to the Crown to amend the indictment by enlarging the period during which it was alleged that the offence charged in Count 1 was committed

Ground 2:           A miscarriage of justice was occasioned by the Crown putting to the jury a case not based upon the evidence admitted in the trial

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28. The trial judge allowed the Crown to amend the indictment after having been informed that there was no objection to this course by the accused. However, in discussion which followed and before the appellant pleaded to the charges as amended, it became apparent that the reason why the Crown wanted to move from alleging a specific date for the commission of the offence charged in the first count to a lengthy period within which it was to be alleged the offence occurred, was because of evidence which it was anticipated would emerge in the prosecution case:

(a)         From the complainant's mother that she was at home watching the royal wedding on television at a time when the complainant's evidence placed her as absent from the house playing bingo. The royal wedding was on a Wednesday and it was anticipated that the mother's evidence would be that bingo was on a Saturday.

(b)         From TS that she was not in Albury in July 1981 or indeed until 1982. (As the evidence at the trial emerged, TS was not at the same school as the complainant until 1983.)       

29. It is submitted on the appellant's behalf that the failure of trial counsel to object to the amendment demonstrated incompetence but whether this be so or not, it is the responsibility of this Court to determine whether, having regard to the way in which the evidence emerged and to the way in which the trial was conducted, the amendment of the indictment resulted in a miscarriage of justice. In my opinion it did.

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31. The evidence of TS to the effect that she did not know the complainant before 1983 created a further difficulty for the Crown because it placed her evidence in direct conflict with that of the complainant that the complainant spoke of the appellant's misconduct when she saw TS at school at a time just after having seen the royal wedding on television. If what the complainant saw was a live telecast, her evidence could not stand with that of TS. If the offence occurred on 29 July 1981, but no complaint was made until 1983, such complaint might well not then have been regarded as recent, and evidence of it would not have been properly admissible under s 66 of the Evidence Act: Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606. If what was seen was, contrary to the complainant's evidence, a replay, there was room for avoidance of conflict and much better prospects for admitting evidence of recent complaint. The jury was invited by the Crown to conclude that what the complainant had seen was a replay and the trial judge reminded the jury of the Crown's submission on p 18 of the summing up:

"The Crown says in relation to the wedding ceremony, well because it does not sit with some other evidence you might conclude that it came at a later date, it was a replay..."

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33. There are cases where time has been made of the essence of the offence. This was such a case, because the complainant, was insistent that the offence occurred on the same day as the royal wedding, and she was also insistent - she said she was 100% sure - that she witnessed a live broadcast of that royal wedding just before the commission of the offence. The complainant's evidence as to the commission of the first offence made the time of such commission essential to the acceptance of her evidence and was crucial in the sense referred to by Gleeson CJ in R v VHP (unreported, NSWCCA, 7 July 1997) where the Chief Justice said at 15:

"As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable."

34. It does not seem to me that it was possible to treat the complainant's evidence as reliable as to the commission of the offence if it was not reliable as to the date upon which she said it occurred. Yet the effect of the amendment was to obscure this difficulty and the amendment resulted in the jury being left to consider a Crown submission contradicted by the evidence of the complainant that what she was watching on the night of the offence was a replay of the royal wedding rather than a live telecast. It seems to me that the amendment resulted in unfairly depriving the appellant of the possibility of an acquittal which the indictment prior to amendment would have presented.

Heydon JA

94. I wish to make favourable reference to the responsible and honourable approach of counsel, who appeared for the Crown on appeal, to the issues in this appeal. He did not appear at trial. Apart from that, I agree with Studdert J.

Greg James J

95. I agree with the orders proposed by Studdert J and his reasons therefor. I specifically wish to associate myself with the remarks made by the presiding judge.

Gleeson CJ, McHugh and Hayne JJ (would dismiss the appeal)

1. Following a trial in the Supreme Court of Western Australia, before Anderson J and a jury, the appellant was convicted of the wilful murder of Marie Ann Stanton, his estranged wife. This was a second trial. At a previous trial, the jury had been discharged because of an inability to agree upon a verdict.

2. On 11 March 1999, the appellant, armed with a shotgun, and a number of rounds of heavy gauge ammunition, went to the victim's house. It was not in dispute that she died as a result of the discharge of the shotgun. The appellant did not deny that he pulled the trigger and caused the gun to discharge. There was only one substantial issue of fact, which was the intent with which the appellant acted. He denied any intention to kill or harm the victim. He said he took the gun with him in order to frighten her. The two had been quarrelling about Family Court proceedings, and the appellant said he took the weapon to "make her see some sense and negotiate".

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4. The indictment charged the appellant with wilful murder. It was common ground that, by reason of the provisions of The Criminal Code (WA), there were four verdicts that were technically available: wilful murder; murder; manslaughter; and not guilty. However, it was also common ground, in the Full Court of the Supreme Court of Western Australia, and in this Court, that, for practical purposes, the only verdicts that were realistically open on the evidence were wilful murder and manslaughter.

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11. The trial judge left murder as an alternative verdict, although it was common ground in this Court that it was not a realistic possibility. In that connection, he said:

"As to murder, you couldn't get to consider the alternative verdict of murder unless you were unanimously of the opinion that the crime of wilful murder had not been committed. You must unanimously come to that conclusion before you move to consider whether the alternative crime of murder has been proved. As to murder, there must of course be a killing by one person of another and the killing must be unlawful, and I have told you about unlawfulness."

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17. After the jury had retired for about four hours, they asked a question:

"If the jury is in conflict, do those who believe he is guilty of wilful murder have to move down to the charge of manslaughter? Do 12 people have to agree to manslaughter?"

18. The trial judge discussed the question with counsel in the absence of the jury. Counsel agreed that the answer to the question was "very straightforward" and that it was that the members of the jury must unanimously agree with respect to the charge brought before they could proceed to consider alternative verdicts. There was some discussion as to whether it was appropriate, at that stage, to give the jury a direction of the kind considered by this Court in Black v The Queen. The trial judge indicated that he was not inclined to give a Black direction at that stage, but would prefer to "wait a little". The members of the jury were then brought into Court, the question was repeated, and the trial judge said:

"Yes, the law is quite clear. You can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder. So, whatever your verdict is on the first charge of wilful murder, it must be unanimous."

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22. Furthermore, the prosecution was entitled to have the trial judge seek a verdict on the charge in the indictment, and if the jury were unable to agree, either on a verdict of guilty of wilful murder or a verdict of not guilty of wilful murder, then the proper course was to discharge the jury. This was acknowledged in argument in this Court by counsel for the appellant, but it appears to have been the subject of some misapprehension in the Full Court. As Anderson J told the jury immediately before they retired, the first question they would be asked when they returned was whether they found the appellant guilty or not guilty of wilful murder. It would not have been a permissible response to that question for the jury to announce that they were unable to agree on that, but were all agreed that, if the appellant was not guilty of wilful murder, he was at least guilty of manslaughter. If they were unable to agree on whether the appellant was guilty or not guilty of wilful murder, then they would be unable to agree on their verdict in relation to the charge in the indictment. They would then be discharged.

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27. As the direction recommended in Black acknowledges, when the jury were considering the charge of wilful murder, it was proper for individual jurors to attach weight to the opinions of others, and if persuaded by those opinions, to modify or alter their own views in response. But if, after full deliberation, and interchange of views, some were of the opinion that the prosecution had established its case beyond reasonable doubt (which, in this case, meant that the prosecution had proved beyond reasonable doubt the appellant's intent to kill his wife), and others were of the opinion that the prosecution had not established its case beyond reasonable doubt (that is to say, if they had a doubt about intent to kill), then there was a state of disagreement. They might seek to resolve that disagreement by further discussion, which could lead some to change their opinions. But so long as they adhered to those opinions, they would be unable to agree on a verdict on the charge in the indictment. On that hypothesis, some jurors would consider that the appellant was guilty of wilful murder and other jurors would consider that the appellant was guilty of manslaughter. If those were their final opinions, then the outcome would be discharge and, potentially, a new trial; not a verdict of manslaughter, much less a "verdict" of "at least manslaughter".

Gummow and Callinan JJ (would allow the appeal)

68. In this case the jury had been deliberating for four hours. No one now suggests that his Honour was remiss in not giving a direction of the kind referred to in Black. His Honour was not however entitled to lead the jury to believe that they were not permitted to do what the question suggested they were inclined to do, and were in substance asking whether they could do:

"Not having for the present been able to reach agreement on the count of wilful murder, may we, the jury consider, explore, whether there is agreement on manslaughter?"

69. A responsive and better answer to the jury's question than the one his Honour gave would have been to this effect:

"You may consider the possible verdicts in whatever order you wish. You must keep in mind however that when you have finished your deliberations you will be required to give your verdict first on the count of wilful murder. It will be only if you reach a verdict of not guilty of wilful murder that you will be asked to return another or other verdicts."

70. The fact that the trial judge might understandably have been reluctant to say anything that might be construed as an invitation to the jury to disagree, or to reach a compromise verdict, does not provide a sufficient basis for the erroneous direction as to the order of consideration of the verdicts. The answer to the question and the directions complained of effectively denied the jury their right to disagree, and their right to consider (but not of course to return) their verdicts in whatever order they choose. The error in the directions was compounded by the use of the word "committed" when "proved" should have been used in the second direction. The respondent accepted that a not improper approach by the jury to their task might have been to consider the lesser counts first, or, after it was apparent to the jury that there might be disagreement as to the most, or more serious of them, and to which they could and should return if they were agreed that the least, or less serious of the counts had certainly been made out. The directions and the answer to the question failed to make the necessary distinction between the jury's freedom to "consider" their verdicts in whatever order they choose, and their obligation to return verdicts in descending order of seriousness if they were not satisfied of the appellant's guilt on the most or more serious of the counts.

Simpson J

1. I agree with Bell J.

Bell J

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

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

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

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

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

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

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

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

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

Buddin J

54. I agree with Bell J.

Spigleman CJ (would allow the appeal)

1. On 16 May 2002 John Malufuka was violently assaulted by a group of men. He suffered multiple injuries including the loss of an ear and becoming blind in one eye. The Appellant was identified as one of four men who participated in the attack. There was no evidence that he himself inflicted any particular injury.

2. On indictment he was charged with committing the offence of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm contrary to s33 of the Crimes Act 1900. The Crown put to the jury an alternative offence, not included on the indictment, of maliciously inflicting grievous bodily harm, contrary to s35 of the Crimes Act 1900. The Appellant was found not guilty of the principle charge but guilty of the alternative charge. He appeals against his conviction.

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18. The Traill indictment, on which each of the four accused stood trial, was, relevantly, in the following form:

“That ...

Darko JANCESKI

On 16th May 2002 at Cringila in the State of New South Wales, maliciously inflicted grievous bodily harm to John Malufuka, with intent to do grievous bodily harm.”

19. It was signed by Ms K Traill above the printed characterisation:

“Crown Prosecutor,

On behalf of the

Director of Public Prosecutions”

20. The case turns on s126 of the Criminal Procedure Act 1986 (“the Act”) which provides, relevantly, that an indictment shall be signed by a person authorised by the Director of Public Prosecutions to do so.

21. There was no order in writing pursuant to s126 authorising Ms Traill to sign the indictment.

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82. There are two other factors which tend to support a conclusion upholding the validity of the conviction: the position of Ms Traill and the Fox indictment.

83. Ms Traill appeared on behalf of the Director of Public Prosecutions pursuant to the provisions of s21 of the Director of Public Prosecutions Act 1986. That Act was a cognate piece of legislation with the Act presently under consideration. She was instructed to appear in the case by the very repository of the power conferred by s126(2).

84. A second factor is the existence of the Fox indictment. That was the basis of the first trial. It was signed by a person authorised to do so. It remained on the Court file. It was not, however, the document upon which the trial proceeded. With respect to s130(2), the pre-condition for jurisdiction that a valid indictment be ‘presented’ was satisfied, but not the pre-condition that the Appellant should be arraigned on that indictment.

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90. The strongest argument in favour of the proposition that an actual authority to sign constitutes an essential element of the validity of every indictment, most relevantly for purposes of investing the District Court with jurisdiction, is the criminal pleading context of the relevant provisions. The criminal law is one of the last areas of the law in which a technical point is still a good point. Parliament can be taken to act on the basis that the common law has, subject to statutory exceptions, traditionally required punctilious compliance with the requirements of criminal procedure. (See R v Birlut (1995) 39 NSWLR 1 at 5-6; R v Deng (1996) 91 A Crim R 80 at 85-86.) However, that does not necessarily lead to the conclusion that there has been no change in judicial attitudes in this respect.

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97. His Honour’s analysis indicates that s126 had as its primary purpose the objective of ensuring that the new office of the Director of Public Prosecutions, subject only to the Attorney General’s powers, would be in control of the process of instituting criminal proceedings on indictment and that that would be manifest to all parties to the proceedings. This purpose requires precise compliance with the formulated stipulation in s126(1)(b)(iii) and s126(2). For this reason, I have come to the conclusion that Parliament did intend that the defect in compliance which has occurred in this case should lead to invalidity.

98. This is an unfortunate result. The Appellant received a fair trial. The technicality on which he has succeeded was of no practical significance. This is the kind of result that adversely affects public confidence in the administration of criminal justice by giving the public the impression that the system is just a forensic game. Nevertheless, for good reason, the courts have always insisted on punctilious compliance with legal formalities which have any substantive purpose, before the State imposes the stigma of a criminal conviction on any citizen. That longstanding policy of the law should not be changed without clear and unambiguous parliamentary authority.

Wood CJ at CL (would allow the appeal)

180. Although, an argument was directed to the effect that any deficiency in the Traill indictment was cured by the circumstance that a properly authorised indictment was already on the file, I am not persuaded that this was sufficient to cure any deficiency in the proceedings.

181. The simple fact is that it was the Traill indictment to which the Appellant pleaded, and upon which the trial proceeded. There was no attempt to revive or to rely on the original Fox indictment, which the parties clearly regarded as having been superseded. The position would have been otherwise had the Fox indictment been re-presented and had the trial proceeded upon it, as could have happened since it had not been spent by verdict, by plea of guilty, or by entry of a nolle Prosequi (now by a direction under s 7(2)(b) of the Director of Public Prosecutions Act 1986: R v Howard (1992) 29 NSWLR 242 at 247.

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187. Although there is no reason why a person cannot be arraigned more than once (see R v Nicolaidis (1994) 33 NSWLR 364 at 367), there can only be one indictment in any one trial: R v Landy [1943] VicLawRp 14; (1943) VLR 73 and R v Howard at [247] to [248]. I agree with the reasons of the Chief Justice at [97] to [99] for not accepting the Crown submission that the trial proceeded upon the basis of the first indictment. As his Honour points out that did not happen either in substance or in form.

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195. It may be observed additionally that, in accordance with s 13 of the Crown Prosecutors Act, the Attorney General may appoint a person, who is eligible to act as a Crown Prosecutor, to act as a Crown Prosecutor. A person who is acting as a Crown Prosecutor has and may "exercise all the functions of a Crown Prosecutor (s 13(4)). Had Ms Traill been so appointed, then the problem which here arises would have been avoided, since in her deemed office she would have had authority under s 126(1)(b)(i) to have signed the indictment for and on behalf of the Director. So far as the record shows she did not hold any such appointment, even though she purported to sign the indictment as "the Crown Prosecutor on behalf of the Director of Public Prosecutions".

196. In that regard, it does not seem to me to avail the Crown that, pursuant to s 21 of the Director of Public Prosecutions Act she had been briefed by the Director or by his office to prosecute the proceedings. Neither that office nor the Director had any power to appoint her to be a Crown Prosecutor, and any authority given to her to conduct the prosecution could not, in the absence of a proper grant of power, extend beyond that limited authority.

209. I am unpersuaded that the Crown could rely on waiver where the Court's jurisdiction was conditional on the existence of a valid indictment, for similar reasons to those considered in The Commonwealth v Verwayen (1990) 170 CLR 394, especially by Brennan J at 425. I am similarly unpersuaded that the Crown could rely on waiver arising from the fact of the Appellant entering a plea of not guilty and preceding to trial. I do not consider that either can provide an answer.

Hunt AJA (would allow the appeal)

212. I agree with Howie J.

Howie J (would allow the appeal)

215. There can be no doubt that the indictment presented before Judge Tupman and upon which the appellant was tried, “the Traill indictment”, was defective. There had been a breach of s 126 of the Criminal Procedure Act (the Act) in that no person, who was authorised to sign indictments pursuant to that section, signed the indictment. The issue raised by this ground of appeal is whether, as a consequence of that defect, the indictment was rendered invalid and hence the trial of the appellant nugatory.

216. On the authority of the decision of this Court in Halmi, the indictment was a nullity. It did not give the District Court jurisdiction to determine the charges on it, the appellant had never been validly put to his trial on that indictment and it could not support the conviction by the jury on the second count it contained. In my view the acquittal of the appellant on the first count is similarly not a valid verdict but, in the highly unlikely event that the Crown sought to retry the appellant on that charge, the court would have power to stay the proceedings as an abuse of process if it were necessary to do so.

217. It is clear that the setting aside of the conviction on the second count because of the invalidity of the indictment is a very unsatisfactory result arising, as it does, from a highly technical defect which, as was conceded by counsel for the appellant, did not cause the appellant the slightest prejudice in the conduct of his defence. The technicality at the heart of the defect is apparent from the reasons given by the Chief Justice: the indictment was signed by the person prosecuting the appellant and the indictment was in exactly the same terms as an indictment previously filed in the District Court, “the Fox indictment”. In my view it was strictly unnecessary for the Crown to file a second indictment before the trial of the appellant could proceed before Judge Tupman, and hence the failure to comply with s 126 was even more regrettable.

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232. The presentation of an indictment is, therefore, the most fundamental of the procedures that attend a criminal trial for an indictable offence. So far as the courts in this State are concerned, there is neither any other procedural step necessary nor any alternative step available for the commencement of a criminal trial in the District or Supreme Court. The court cannot refuse to receive an indictment nor can it refuse to exercise its jurisdiction obtained from the presentation of the indictment unless to do so would be an abuse of process. Given that the indictment is “not merely some relatively unimportant document”, to quote from the judgment in McNamara (No2), it might be expected that any defect in an indictment would, absent some statutory remedy, such as s 16 of the Criminal Procedure Act, give rise to a fundamental irregularity in the conduct of the proceedings that followed its presentation and resulted in a conviction based upon its flawed authority.

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264. In my opinion, the defect in the Traill indictment was not that a person signed the document without authority to do so, but rather that the indictment was not signed by a person authorised to do so. If the person signing the indictment is not authorised, then in my opinion the signature is worthless. It is incapable of representing to the court that the prosecution is authorised by the Director or that it is regular. It does not matter in my view that the person who signed the indictment has been briefed to appear for the Director to prosecute the indictment. Unless the person is authorised to sign the indictment, that person’s role or function in the proceedings before the court is also irrelevant.

Johnson J (would allow the appeal)

287. I have had the privilege of reading the judgments, in draft, of the Chief Justice and of Howie J. I agree with Howie J. I agree that the de facto officer principle does not assist the Crown on this appeal for the reasons given by the Chief Justice.

Spigleman J (would allow the appeal)

1. 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.”

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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”

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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.

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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.

McClellan CJ at CL (would allow the appeal)

83. 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.

Sully J (would allow the appeal)

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.

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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.

Simpson J (would allow the appeal)

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.

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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.

Howie J (would allow the appeal)

181. 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.

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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.

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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.

Gummow J (would allow the appeal)

1. The appellant was born on 12 July 1949. The complainant was born on 21 September 1972. Accordingly, the complainant turned 12 years of age on 21 September 1984 and 17 years on 21 September 1989. At a jury trial in July 2006 in the District Court of South Australia, the appellant was convicted of the two counts in the Information. They were of unlawful sexual intercourse with the complainant, being a person under 17 years, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) ("the Act"). The verdicts were majority verdicts. An appeal against conviction was dismissed by the Court of Criminal Appeal (Vanstone, Layton and David JJ) on 14 December 2006[1], and, on limited grounds, the appellant appeals by special leave to this Court.

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5. Section 49(4) provides for two defences. The first (pars (a) and (b)(i)) is made out where the accused proves that the complainant was of or above the age of 16 years and that the accused was under the age of 17 years. That could have had no application to the facts of this case. The second defence (pars (a) and (b)(ii)) is made out where the accused proves that the complainant was of or above the age of 16 years and that the accused had the belief on reasonable grounds that the complainant was of, or above, the age of 17 years. It is this second defence which is presently material.

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14. The trial miscarried in a serious respect because there was never any charge against the appellant alleging a date in 1989 as the date of the offences. To a charge in that form, there properly could have been propounded a defence based upon pars (a) and (b)(ii) of s 49(4), namely upon the age of the complainant as 16 years or above and the belief of the appellant on reasonable grounds that the complainant was of or above 17 years of age.

15. Although the conduct of the trial produced a situation where there was before the jury no charge so framed as to allege a 1989 date, the jury was instructed to proceed as if that was the case and as if the defence based upon reasonable belief fell for decision, being a distinct matter from the issue whether the complainant should be accepted in her evidence fixing the date in 1986.

Kirby J (would allow the appeal)

22. The Information and the trial: The Information specified particulars of the offences charged in the two counts. Relevantly, the offence alleged in the first count was particularised as "performing an act of cunnilingus upon" the complainant. The offence particularised in the second count was one of having "vaginal sexual intercourse" with the complainant. In both particulars the offence was alleged to have occurred "between the 31st day of January 1986 and the 28th day of February 1986 at Renmark or another place".

23. The prosecution of the appellant was conducted on the footing that the second offence had followed immediately after the first, each constituting a part of a single sexual encounter. The particularity of the two counts, alleging separate acts of "sexual intercourse", conformed to the common law requirement to plead separate offences by way of separate charges.

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25. The complainant gave evidence of the two acts of intercourse having occurred on a houseboat in February 1986, when she was 13 years of age. She said that the appellant was a friend of her parents and committed the offences on the houseboat trip when other passengers, including her parents, were asleep. She said that she could identify the date because she had "lost her virginity" at the age of 13, a few weeks earlier in the Christmas holidays.

26. The appellant gave evidence at his trial. As had been foreshadowed by his counsel in outlining his defence at the commencement of the trial, the appellant did not deny having had intercourse with the complainant. However, he denied that such intercourse had occurred in 1986. He stated that it had occurred in 1989 when the complainant was aged 16. He asserted that, at the time of the intercourse, he believed that the complainant was aged 17.

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29. Despite this indication that the appellant would be giving evidence and would be asserting that the acts of sexual intercourse occurred in 1989, not 1986, the prosecutor neither then, nor at any time before the verdicts, sought to amend the particulars of the counts of the Information. Nor did she seek to add further, alternative counts, charging acts of unlawful sexual intercourse in February 1989 that the appellant, by his counsel, had indicated he would admit. Neither did the trial judge at any stage require the prosecutor to plead or particularise alternative counts or to elect as between alternative versions of unlawful sexual intercourse upon which the prosecution would rely in the trial.

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43. General rule: non-materiality: Generally, the date of an offence, whether specified in the formal document containing the charge or in separate particulars, is not treated as a material fact which the prosecution must prove beyond reasonable doubt in order to make good its accusation. So much was stated by Atkin J in Severo Dossi, although his Lordship acknowledged that there were exceptions to the general rule:

"From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. 'And although the day be alleged, yet if the jury finds him guilty at another day, the verdict is good, but then in the verdict it is good to set down on what day it was done, in respect of the relation of the felony; and the same law is in the case of an indictment' ... Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence. It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual day specified in the indictment."

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60. Confirmation in the conduct of the trial: Even if, contrary to the foregoing, one were to conclude that, in the language and structure of s 49 of the Act, the date of the offence alleged by the prosecution was not a material element of the offence, as pleaded, it was certainly rendered material by the way the appellant's trial was conducted, once he had announced his defence. Through his counsel, he made it plain, immediately after the prosecutor's opening, in the passage cited in these reasons, that the date of the alleged offences would be of the essence. Thus, from the very outset, the appellant indicated that the issue for the jury's decision would be whether the alleged offences took place in 1986 or 1989 and, if the latter, whether he had proved the matters of defence required by s 49(4)(b)(ii) of the Act.

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63. The direction on materiality was erroneous: Because these steps were not taken, that conduct strayed from an accurate attention to the accusation which, formally, the prosecution brought against the appellant. It is not correct to say that that accusation was simply a charge that the appellant had unlawful sexual intercourse with the complainant, a person of or above the age of 12 years and under the age of 17 years. To say that is to ignore the terms of the Information as particularised; the evidence of the complainant, being the only direct evidence of the alleged offences tendered by the prosecution; and the general requirement of particularity in the identification of criminal accusations and, where contested, their proof in a criminal trial.

64. In default of amendment and the accurate re-expression of the accusation which the prosecution was bringing against the appellant, the trial judge should have confined the trial to the question whether the prosecution had proved beyond reasonable doubt that the offences recounted by the complainant had occurred at the time that she alleged, namely February 1986.

65. To the offences charged and particularised, the appellant's acknowledgment of acts of sexual intercourse at other times and in circumstances potentially attracting a defence under s 49(4) of the Act was legally immaterial. In the absence of amendment of the Information or particulars, if the trial had followed correct procedures, all references to s 49(4) of the Act and the circumstances of uncharged and unparticularised offences in 1989 should have been ruled inadmissible and excluded.

66. Instead, the appellant's trial counsel sought to introduce, by way of defence, evidence and argument addressed to the application of s 49(4) to later events involving uncharged offences. The prosecutor acquiesced in that course. So did the trial judge. It follows that, even if, contrary to the foregoing, the provisions of s 49(3) and (4) in their generality did not render the age of the complainant a material fact for the trial of the appellant (as I would hold) the way that the appellant's trial unfolded plainly did.

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68. The prosecution could not have it both ways. It either had to elect to go to the jury relying solely on the accusation that the offences happened in 1986 or it should have amended the Information so as to render the s 49(4) issue relevant to the trial and within the Information as particularised. What it did was to adhere, unamended, to the original Information; to permit the s 49(4) issues to be adduced; to take advantage of the appellant's admission of different offences against s 49(3); but not to facilitate appropriate directions to the jury by the trial judge on the materiality of the date of the offences found and on the alternative ways of reasoning to verdicts on the charges brought.

Hayne and Heydon JJ (would dismiss the appeal)

112. Nothing turns on these differences in the expression of the appellant's complaint. Rather, as these reasons will demonstrate, resolution of the issues raised in the appeal turns upon two critical considerations. First, the appellant's trial was conducted by both sides from start to finish on the footing that the dates alleged in the Particulars of Offence were not material. That is, both sides fought the trial on the basis that the dates given in the particulars did not confine the relevant factual disputes to whether acts of intercourse occurred between those dates. Secondly, the elements of the offence were admitted. The appellant sought to establish a defence having three distinct elements. In such a case it will never be possible to know from a jury's verdict of guilty any more than that all of the jurors who agreed in the verdict agreed that they did not accept that all three elements of the defence had been established on the balance of probabilities.

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124. Tr1eating the date of the alleged offence stated in the particulars as not an essential element to be proved beyond reasonable doubt does not disadvantage the accused. On the contrary, it enables a person accused of the offence to go beyond a bare denial of intercourse on the date alleged with all the forensic awkwardness and disadvantage that would otherwise result for an accused, especially an accused who elected to give evidence.

125. If the date given in the particulars is not a material fact, the accused may, as in this case, seek to confess and avoid the charge by admitting that intercourse did occur, but alleging that it occurred in circumstances in which the accused has a defence. That defence would not be open to an accused if the dates alleged in the particulars must be proved beyond reasonable doubt. If the date given in the particulars is a material fact, the accused would be left to deny the charge preferred against him on a very narrow basis - that it did not occur at the time alleged by the complainant. The disadvantage to the accused in being confined to the answer "not then" is evident. Not least is that because it leaves the accused unable to meet effectively any evidence given by the complainant that reveals knowledge most likely acquired from intimate dealings with the accused.

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127. It may readily be accepted that, as Callinan J said in Cheung v The Queen, counts in an information "should be framed with all such specificity as to time, place, and circumstance as is possible". As Callinan J pointed out in Cheung, identifying the time at which an offence occurred may be important in fixing punishment. Sexual offences against young persons may well provide examples of cases in which the criminality of an offender may be assessed differently according to the age of the victim. But the chief reason to insist upon specificity in the framing of counts in an information is to ensure a fair trial. It is for the prosecution to identify as precisely as possible the charge that is preferred against an accused person. And the particulars that are given of an offence are to be framed with that purpose at the forefront of consideration.

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133. It follows that, contrary to the appellant's submissions, if any amendment of the record was required by the course taken by trial counsel for the appellant making the opening statement she did, it was to amend the Particulars of Offence by alleging that each offence occurred between 31 January 1986 and 28 February 1986 or between 31 January 1989 and 28 February 1989. And the trial proceeded, from start to finish, as if that had been done.

Crennan J (would dismiss the appeal)

156. However, the general rule is that the date of an offence is not a material particular and need not be proven, unless a date is "an essential part of the alleged offence". The terms of s 49 were consistent with the general rule.

157. 1Exceptions to the general rule occur when the conduct of a trial has the effect of rendering a date a material particular or vital as, for example, when an alibi is raised by the defence in respect of a particular date. Equally, the defence, or both the prosecution and the defence, may conduct a trial by treating the date of an offence as not material.

158. Whether or not a date of an offence is a material particular in a case involving sexual offences where the age of the complainant is relevant will depend on the circumstances of the case, including issues of procedural fairness. For example, it would be erroneous to describe the time of an offence under s 49(3) as "immaterial" if a jury were left with a belief that it could bring in a guilty verdict even if a complainant were above 17 years of age, or where the prosecution led evidence of different and conflicting versions of the same incident, or evidence equally capable of referring to a number of different occasions. However, there were no such issues of procedural fairness here, where the appellant admitted the alleged acts of sexual intercourse with the complainant when she was under 17 years of age.

Spigleman CJ (holding that the proviso should be applied and the appeal dismissed)

3. It is important to state at the outset that it is a fundamental principle of the criminal law that an indictment must, to adopt the terminology of Hunt CJ at CL in R v Mai (1991) 26 NSWLR 371 at 377, “disclose an offence punishable by law”. This is a longstanding principle. (See, eg, Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583 at 594-595, 600-601; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 486; Ex parte Price (1899) 20 LR (NSW) 343; Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261; Traveland Pty Ltd v Doherty [1982] FCA 81; (1982) 6 A Crim R 181 at 188.) Accordingly, statutory provisions which permit defects to be overlooked have not been interpreted to “enable a magistrate to convict of an offence upon an information which discloses no offence”. (Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 173.)

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9. There are circumstances in which a document which purports to be an indictment will be held not to be such. It is convenient to speak in terms of a “valid” indictment as the relevant requirement of the statutory regime. In many circumstances such validity is jurisdictional.

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14. Procedural requirements, such as the requirement of authority for signature (considered in Halmi and Janceski and subsequently modified by the addition of s 16(1)(i) to the Criminal Procedure Act), turn on the intention of Parliament with respect to the effect of non-compliance with the procedure it has imposed. However, there has never, to my knowledge, been a statutory modification of the fundamental principle that a Court has no jurisdiction to hear a criminal trial which has not been instituted by a pleading that alleges an offence known to the law. Indeed, any attempt to do so could raise constitutional considerations.

15. The appellant contends that the omission of an essential legal element from counts 13 and 14 – namely the failure to refer to knowledge or recklessness with respect to falsity – renders the indictment invalid. This omission, if accepted, is to the effect that the indictment fails to disclose an offence known to the law. The appellant specifically submitted that it is not possible to determine which of the alternative mental elements in s 178BB Crimes Act – knowledge or recklessness – was relied on.

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21. I accept that s 16 and s 17 are not exhaustive. The effect of non-compliance with specific requirements of an indictment will require a process of statutory interpretation of the character undertaken in Janceski. That is a different process to the issue raised in the present case as to whether the document is capable of answering the description of an indictment at all.

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23. Although the distinction between an indictment which is a “nullity” and one which is merely “defective” is not, as Lord Bridge suggested, always a helpful distinction, (see also [4] above), his Lordship’s clear statement, which I will quote below, about the need for an indictment to disclose a criminal offence, remains good law. I do not understand that anything said in the cases, upon which the Crown relies, doubts this essential requirement of a criminal pleading.

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34. The indictment in the present case is similar to the pleading considered by the English Court of Criminal Appeal in R v McVitie (1960) 2 QB 483. In that case the “Statement of Offence” charged the accused with possessing explosives contrary to a specific provision of a statute. However, the particulars did not expressly refer to the statutory requirement of “knowingly” possess. The Court concluded that this omission did not affect the validity of the indictment. The Court said at 495:

“In our opinion this did not make the indictment a bad indictment, but simply a defective or imperfect one. A bad indictment would be one disclosing no offence known to the law, for example, where it was laid under a statute which had been repealed and not re-enacted. In the present case the indictment described the offence with complete accuracy in the ‘Statement of Offence.’ Only the particulars, which merely elaborate the ‘Statement of Offence,’ were incomplete. The question of applying the proviso is to be considered, therefore, not upon the basis that the indictment disclosed no known offence but that it described a known offence with incomplete particulars.”

35. McVitie is authority for the proposition that reference to the statutory provision creating an offence may implicitly plead the element contained in the section. (See supra at 496.) The relevant English Act, and subsequently rules (see R v Molyneux (1981) 72 Cr. App. R 111), expressly required an indictment to describe the offence and to refer to the section of the statute. However, the same approach is applicable to the interpretation of the word “indictment” in statutory provisions conferring criminal jurisdiction on a court.

36. Whether or not the reference to the statute would have been sufficient, of itself, need not be decided. It plainly will not be sufficient if the section gives rise to alternatives from which the Crown must choose. (See Traveland v Doherty supra at 188.) In the present case the choice between the relevant alternatives with respect to the mental element – knowledge and recklessness – is implied from the pleading of the first six counts. It is the combined effect of the back sheet, referring to eight counts under s 178BB Crimes Act, and the detailed pleading of six of the counts, which is determinative in the present case. It is unnecessary to go further.

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45. This distinction remains, in my opinion, a good one. A verdict does not cure every defect in an indictment. If I had come to the conclusion that the mental element of the offence had not been pleaded, then I would not have concluded that the defect was cured by verdict.

McClellan CJ at CL

107.However, the common law has long accepted that in some circumstances the jury’s verdict will cure a defect in the indictment. Before the trial process was addressed in any detail by the Parliament the courts recognised that, although there may be a deficiency in an indictment and for that reason an injustice may have occurred, if the elements of the offence were correctly identified during the trial and after proper instruction the jury returned a verdict of guilty, that verdict would not be quashed on appeal.

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124. There are some circumstances in which a defect in an indictment is such that it cannot be cured by an amendment or the jury’s verdict. These issues were discussed by this Court in R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 and subsequently in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10. In both cases the appellant had been convicted on an “indictment” which had not been signed by a person holding the relevant authority as required by s 126 of the Criminal Procedure Act. This Court on each occasion held that the “indictment” was invalid. The requirement in s 126 that an indictment be signed by a person holding the appropriate authority is an essential element of the validity of every indictment in that it invests the relevant court with its jurisdiction. The requirements of s 126 are strict: Halmi at [2]; Janceski at [98].

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159. In my opinion, although defective with respect to counts 13 and 14, the indictment in the present case was not itself invalid so as to deprive the District Court entirely of jurisdiction. The considerations which led to the quashing of the conviction in Janceski are not relevant in the present case. If objection had been taken at the trial the problem could have been dealt with by amendment of the indictment which would have been granted pursuant to s 17 of the Criminal Procedure Act.

160. It is apparent from a review of the course of the trial that there was no misunderstanding as to the basis upon which the Crown asserted that the offences comprising counts 13 and 14 had been committed. The Crown case was clearly identified in his Honour’s written directions and the jury must have determined that the relevant mental element of the offences had been proved. I have previously discussed the evidence relevant to these counts which I have reviewed in its entirety. The Crown case was overwhelming. The issue now sought to be raised was not identified at the trial. Whether by reason of the common law doctrine or by the application of the proviso in my judgment the appellant was properly convicted of both count 13 and count 14. I would refuse leave to raise these grounds of appeal.

Grove J

181. I have had the advantage of reading the draft judgment of McClellan CJ at CL with which I agree in substance and in the outcome which he proposes. I record that I do not consider statutory provisions or subsequent cases to detract from the authority of Heymann v The Queen (1873) LR 8 QB 102 to the effect that (absent a defect denying jurisdiction) defects, imperfections or omissions in the averments of an indictment whether in substance or in form do not result in conviction being set aside on appeal, because where issue is joined and the jury, properly instructed, must have found the necessary elements of the offence adversely to the accused, any such defect, imperfection or omission is cured by the verdict.

Hodgson JA

1. On 12 June 2009 Bennett DCJ, pursuant to s 20 of the Criminal Procedure Act 1986, granted leave to the Crown to amend the indictment in proceedings brought against the applicant, so as to include counts 1 through 12 as proposed in a form of indictment presented in the Crown's application.

2. The applicant seeks leave to appeal from that decision pursuant to s 5F of the Criminal Appeal Act 1912.

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12. The subject application to amend the indictment was served on 23 March 2009 and heard on 1 June 2009. The proposed indictment included 3 additional counts similar to the previous 4 counts based on material in the video recorder. It also included 4 counts of an offence that can be described as encouraging child sex tourism, under s 50 DB of the Crimes Act 1914 (Cth), and also one count of using the internet service to access child pornography, this being an offence under s 474.19 of the Criminal Code Act 1995 (Cth).

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19. In my opinion, it was incorrect for the primary judge not to address issues of the kind dealt with in s 21 (2) of the Criminal Procedure Act in resolving the Crown's application. In my opinion, where the Crown seeks leave to amend an indictment so as to bring about a position there where there will ordinarily be a single trial of a number of charges included in the amended indictment, the Crown does have an onus to prove that such a single trial would not unfairly prejudice or embarrass the accused and that it is not desirable that there be separate trials. For that reason, in my opinion, on that aspect of the matter there was error by the primary judge, which makes it appropriate for this Court to consider whether a single trial would unfairly prejudicial or embarrass the applicant and whether it is desirable that there be separate trials.

Howie J

27. I agree. I would simply add a short comment on the suggestion that His Honour's discretion miscarried in so far as there was delay in the application by the Crown to seek leave to amend the indictment to add counts 8 to 11…

Fullerton J

30. I agree with the orders given by the presiding judge.

Johnson J

1. The Appellant, Nobutomo Tonari, appeals against his conviction by a jury in the District Court on 27 August 2012 with respect to five counts of aggravated sexual intercourse without consent under s.61J(1) Crimes Act 1900 and two counts of indecent assault under s.61L of that Act.

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 10. At the beginning of the sentence proceedings on 9 November 2012, the Crown Prosecutor informed the Court that a defect in the indictment had been detected. To bring the counts into line with s.61J(2)(b), application was made to amend the indictment by inserting the words "by means of an offensive instrument" at the end of each of the s.61J(1) counts. The trial Judge refused the application and the proceedings were adjourned until 22 November 2012.

11. On 22 November 2012, the Crown made a further application to amend the indictment by deleting any reference to the circumstance of aggravation in the s.61J(1) counts, which would have had the effect of converting the charges to counts of sexual intercourse without consent under s.61I Crimes Act 1900. On 11 December 2012, the trial Judge refused leave to amend the indictment in this respect.

12. No point had been raised concerning the form of the indictment prior to or during the trial. The appeal was conducted in this Court upon the basis that the difficulty with the s.61J(1) counts was not picked up until the Crown detected it after the jury had convicted the Appellant.

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35. The circumstances of aggravation relevant to this case are those contained in s.61J(2)(b), which require that any threat to inflict actual bodily harm be "by means of an offensive weapon or instrument".

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64. It was ss.20 and 21 which were sought to be utilised by the Crown in an effort to amend the indictment in the course of the sentencing proceedings. In Rajendran v R [2010] NSWCCA 322; 206 A Crim R 316 at 323-325 [35]-[49], Simpson J (Blanch and Garling JJ agreeing) considered the purpose and operation of ss.20 and 21. Her Honour observed that s.20 confers power to amend an indictment, with a typical example being to amend the date of the alleged offence. Section 21, on the other hand, is "more complex", with its underpinning being an opinion by the Court that an indictment is defective.

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76. During the course of the hearing in this Court, Mr Hamill SC was asked why the indictment was not sufficient as it asserted that the alleged s.61J(1) offences were committed "in circumstances of aggravation". Senior counsel responded that, for the indictment to be valid, it was necessary that the circumstances of aggravation be expressly set out. He submitted that this obligation arose because the circumstances of aggravation were contained in s.61J(2), the section which provides for the s.61J offence itself. He submitted that it was not necessary to identify the form of sexual intercourse involved because that concept arose in a different section (s.61H) and not the offence section itself.

77. It is difficult to see why this distinction would matter. The offence is contained in s.61J(1). The elements of the offence are further explained in other provisions, including s.61H, s.61HA and s.61J(2).

78. To my mind, each of these matters involve particulars, and not a statement of the offence which must be set out in full in the indictment.

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84. Even if the view be formed that the s.61J(1) counts in this case were deficient because of the failure to specify fully the relevant circumstances of aggravation, I am satisfied that this would constitute a mere defect and not a matter rendering those counts (or the indictment) a nullity.

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95. In my view, the indictment charged s.61J(1) offences which were known to the law. The wording was incomplete in its description of the circumstances of aggravation under s.61J(2). This was an imperfect formulation of a known offence. The District Court had jurisdiction to proceed with the trial. Had application been made in the course of the trial, it would have been open to the trial Judge, subject to discretionary considerations, to allow an amendment. That did not happen. Had the trial been conducted upon the basis that the threat to inflict actual bodily harm had been by means of an offensive instrument (although the indictment did not so allege), then it would be open to this Court to conclude that the imperfection or defect in the indictment was cured by the verdicts.

96. Further, in circumstances where it has not been established that the trial was a nullity, it would have been open to the jury to find the Appellant guilty of the alternative offences under s.61I at trial.

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98. However, Ground 2A addresses the real difficulty which arose in this trial. In the circumstances, the jury was not directed as to the elements of the relevant circumstance of aggravation, nor were any directions given which sought to relate that direction of law with the factual issues in the trial. This is sufficient, in my view, to warrant the quashing of the convictions on the s.61J(1) charges.

Price J

222. I find myself in complete agreement with the judgment of Johnson J. I should add in respect of ground 6 that having considered the totality of the evidence before the jury, I am satisfied beyond reasonable doubt that the appellant is guilty of the offence against s 61L (counts 2 and 6) and, in respect of counts 1, 3, 4, 5 and 7, of offences against s 61l of having sexual intercourse without consent.

RA Hulme J

224. I have had the advantage of reading the judgment of Johnson J in draft.

225. I agree with his Honour's reasons and conclusions in relation to grounds 1 to 5.