Amagwula v R

Court of Criminal Appeal (NSW)|2019-02-08|Before: Basten JA, Button J

) Representation: Counsel: E Ozen SC (Appellant) H Roberts (Respondent)

Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/106185 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 20 April 2018 Before: Judge Colefax SC File Number(s): 2012/106185

judgment

BASTEN JA: Mr Amagwula (the appellant) seeks to appeal from his convictions on four counts of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). There were two grounds of appeal: ground 1 alleged that the trial was a nullity because the appellant had not been properly arraigned; ground 2 alleged a miscarriage of justice arising from events occurring in the course of the trial.

Factual background

The charges laid against the applicant arose out of a search of his residence undertaken on 4 April 2012. Police located, in the ceiling of the kitchen, a red "makeup bag" wrapped in plastic. The makeup bag was secured with a padlock. Inside the bag was a set of electric scales and a number of packages wrapped in plastic. The appellant's fingerprints were later found on a number of resealable plastic bags within the red makeup bag. Three sums of money were found in the main bedroom, namely $US6,637, $A1,300 and $1,420 in South African rand. The drugs contained in the red makeup bag formed the basis of four counts of deemed supply, namely: Count 1: a commercial quantity of cocaine (771gms). Count 2: a commercial quantity of heroin (275gms); Count 3: an indictable quantity of methylamphetamine (213gms), and Count 4: an indictable quantity of methorphan (198gms).
The other occupants of the residence were the appellant's wife and his two young children. The appellant's wife denied (i) having seen the red makeup bag before it was located by police; (ii) having put the bag or any other item through the manhole in the kitchen ceiling, and (iii) having seen the appellant place anything through the manhole in the kitchen ceiling.
It is convenient to address aspects of the procedural history by way of background to ground 1 in the notice of appeal.

Procedural history

Ground 1 alleged that the trial was a nullity because the applicant was not properly arraigned because he had not personally answered "not guilty" as each charge was read to him. The factual premise for this submission was that when the charges were read out the judge directed that a plea of not guilty be entered in relation to each count. At that stage Mr Amagwula was standing at the bar table and was not in the dock. He had already addressed the Court, seeking an adjournment on the basis that he was unrepresented and could not get a fair trial. In the course of addressing the Court, he stated: [1] "I am innocent in this matter. All I need is a chance in fairness to defend myself properly."
The judge having delivered a brief judgment rejecting the adjournment application, there was discussion as to the expression of the charges in the indictment (which will be noted below) and the judge stated: [2] "Mr Amagwula, I'm going to ask my associate to arraign you on this indictment. Because you're not legally represented I won't ask you personally to enter a plea. I will direct that pleas of not guilty be entered in relation to each of them after you are arraigned." That happened, in the manner the judge had indicated, Mr Amagwula having indicated no dissent.
The judge then explained to Mr Amagwula, in terms commonly used to self-represented parties, how the trial would proceed and how, procedurally, the accused should conduct himself. There was a short adjournment while the jury panel was assembled in court. The arraignment process was repeated before the jury panel. Again the judge directed a plea of not guilty be entered in respect of each count as it was read out.
It is helpful to set out some of the earlier procedural stages in the case. The present relevance of the procedural history is with respect to ground 1; it depends upon the Director's argument that ground 1 is without substance because, to the extent that the failure to require the appellant to personally indicate his plea, that had in fact happened with respect to a previous form of the indictment in identical terms, with the exception of a missing letter from the description of the drug in count 4.
The procedural history is also relevant to ground 2, which alleged a miscarriage based on the lack of a fair trial through the applicant being unable to conduct his defence unrepresented. That ground did not in terms challenge the refusal of the trial judge to adjourn the trial, but, for example, in ground 2(ii), alleged a miscarriage arising from "the refusal to arrange for Mr Ozone to attend court to be examined and cross-examined". The person identified as "Mr Ozone" was a police informant who had been involved in a separate charge against the appellant, which had been separated from the present trial. It appeared in the course of the trial that the appellant's defence was that the drugs found on his premises on 4 April 2012 had been "planted" there by Mr Ozone.
In considering an application to vacate the hearing on 25 October 2017, the trial judge referred to a wide ranging police undercover investigation that commenced in 2011. At or soon after the time of his arrest (on 4 April 2012) the appellant was charged with having been involved on 19 January 2012 in the supply of a commercial quantity of methylamphetamine. That charge was count 1 on an indictment presented in October 2012 and was referred to as "the January offence". The other four counts on the indictment were apparently in similar, if not identical, terms to counts 1-4 of the indictment on which the appellant was tried in October 2017. At some point in mid-2014 count 1 was separated from the present counts. It involved a co-accused. The trial on count 1 took place in September 2014, resulting in guilty verdicts in relation to both the appellant and the co-accused. As will be considered shortly, the appellant was represented throughout the proceedings up to his sentencing in May 2015, when Norton DCJ imposed a non-parole period of 4 years 2 months 12 days, to date from 4 April 2012, the appellant having been in custody, bail refused, since the time of his arrest.
Following the sentencing for the January offence, the indictment, now limited to the offences of 4 April 2012, was listed for trial on 25 May 2015 before Sides DCJ. The appellant was represented by counsel, who applied to vacate the trial on a number of grounds. The prosecution opposed the application, but the matter was adjourned to 4 April 2016. The matter was originally listed before Colefax DCJ on that date, but was referred to Marien DCJ and a further attempt was made to commence the trial. However, upon the appellant's counsel and solicitor seeking leave to withdraw for ethical reasons (which was granted), the trial date was again vacated. A further date was fixed by Colefax DCJ, namely 6 February 2017. That date was confirmed by Sides DCJ on 5 December 2016, following a case management hearing. The trial was to be given priority on that date.
On 6 February 2017, Culver DCJ had the appellant arraigned. However, counsel and solicitor had withdrawn earlier that morning and the appellant appeared unrepresented. The charges were read and the appellant responded "not guilty" to each count. [3] The appellant sought an adjournment, which was granted until the following day. The reason given on 6 February by counsel seeking to withdraw was that the appellant had refused to sign instructions which would allow them to conduct a defence. [4]
On 7 February the matter was listed before Sides DCJ who declined to hear further argument as to a vacation of the trial, but apparently adjourned the matter to 9 February to allow the appellant to provide a list of witnesses he wanted subpoenaed to give evidence on his behalf.
On 9 February Armitage ADCJ gave the appellant "one last chance" to see if he could obtain legal representation and stood the matter over to 13 February.
On 13 February the appellant's previous counsel appeared, but following a conference with the appellant declined to appear further. [5] After discussion, the trial was again vacated and listed for 16 October 2017. There were further attempts at case management, the appellant being unrepresented on each occasion. On 17 October, the matter was listed before Bennett DCJ who gave directions for further documents to be supplied to the appellant and listed the matter to commence on 23 October 2017 before Colefax DCJ.
After recounting those factors, the appellant's counsel in this Court conceded that the appellant "was given ample opportunity to try and arrange representation at public expense." He also accepted that there was "no suggestion that he was subject to any unfairness merely because he was without legal representation." It was entirely understandable, given the history of the matter, that the trial judge refused a further application to vacate the hearing and that there was no challenge in this Court to that refusal.

Ground 1 - arraignment

The question raised by ground 1 was whether the decision of the trial judge to direct that pleas of not guilty be entered for the appellant rendered the trial a nullity. The ground thus "involves a question of law alone" and the appeal may be brought as of right. [6]
The appellant was arraigned on an indictment dated 23 October 2017. There was no challenge to the validity of that indictment. The appellant had earlier been arraigned on an indictment dated 2 February 2017, before Culver DCJ, for the purpose of giving pre-trial directions. There was no challenge to the validity of that indictment, nor to the process of arraignment on that occasion, when the appellant had personally entered pleas of not guilty to each charge. On one limb of the Director's defence of the trial process, reliance was placed upon the February arraignment as being a sufficient and proper arraignment for the purposes of the trial. On that approach, the subsequent arraignment on 23 October, even if flawed, was otiose and had no legal consequence. In R v Janceski, [7] a case where the accused had been re-arraigned at the commencement of a trial on an invalid indictment, Howie J, referring to an earlier indictment, stated, "[t]hat indictment had not been spent because the trial upon it concluded without verdict." He further noted: [8] "Proceedings for an offence charged on an indictment can only be brought to a conclusion in one of three ways: by verdict after trial, by plea of guilty or by entry of a nolle prosequi: R v Howard. [9] As none of these events occurred, the proceedings commenced by that indictment were still on foot when the appellant came before Tupman DCJ [for the impugned trial]. Had the presentation of the [later, invalid] indictment caused some unfairness to the accused, the court could have stayed it and thereby required the Crown to proceed on the earlier indictment: R v Harris (No 2). [10] "
There are difficulties, perhaps not insuperable, in adopting that approach in the present case. First, as in Janceski, the prosecutor did not rely upon the earlier (February) indictment, but presented a new document to the court. The consequence of such a process, which is the general practice in this State, is unclear. Now that pre-trial case management is the norm, it is necessary for an accused to be arraigned on an indictment before orders are made and directions given. Accordingly, arraignment is an early step in the process. Why, in the absence of amendment, the Director considers it necessary, or indeed appropriate, to present a further indictment on the same charges at the commencement of the trial is unclear. Where there is an unconcluded proceeding on foot, it might be thought to be an abuse of process, absent a statutory requirement, to commence a second proceeding on the same charges. However, the matter need not be pursued, because that was not this case.
The second difficulty in treating the trial as having proceeded on the February indictment is that the prosecutor expressly identified the October indictment as an amended document. The amendment was in fact trivial: in the February indictment the drug in count 4 had been identified as "methorpan", a typographical error which was corrected in the October indictment to read "methorphan". [11]
With respect to the amendment of an indictment, the Criminal Procedure Act 1986 (NSW) provides: 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.
When the prosecutor presented the amended indictment, the judge required that the amendment be initialled by a person with authority to make the amendment. It is clear that the prosecutor had leave of the Court pursuant to s 20(1)(a) to make the amendment.
In terms of the three events which may complete the proceedings on an indictment, noted by Howie J in Janceski, amendment is not identified. That is presumably because the original indictment remains on foot, following amendment.
The third difficulty with adopting the submission that the arraignment in February 2017 was sufficient is the requirement of the Criminal Procedure Act that following an earlier arraignment, there is to be re-arraignment "when the jury is empanelled". Thus, s 130 provides: 130 Trial proceedings after presentation of indictment and before empanelment of jury … (2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled: (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.
Thus, where the challenge is not to the indictment, but to the validity of the arraignment, the further arraignment was required by statute. Accordingly, it is that arraignment which should be addressed for the purposes of ground 1 of the appeal.
As noted by Beazley JA in GG v The Queen, [12] the term "arraignment" is not defined in the Criminal Procedure Act. Archbold, Criminal Pleading, Evidence & Practice [13] states that the process of arraignment involves: "… (1) calling the defendant to the bar by name; (2) reading the indictment to him; (3) asking whether he is guilty or not …. Where an indictment contains several counts, each count should be put to the defendant separately, and he should be asked to plead to each count as it is read to him. … Except in a few special cases (e.g. where the defendant is a deaf mute, or refuses to plead) the initial arraignment must be conducted between the clerk of the court and the defendant. The defendant must plead personally - the plea cannot be made through counsel or another person on his behalf …."
The direction by the judge that a plea of guilty be entered with respect to each count did not follow this course. However, it does not follow that everything which occurred thereafter was a nullity. In effect, it is the consequence of the process adopted by the trial judge which is at the heart of ground 1.
First, it is clear that the requirement for re-arraignment is provided by statute and the consequence of the precise procedure for arraignment under the general law not being followed will depend, at least in part, on the proper construction of the statutory provision. That construction should depend upon the apparent purpose of requiring re-arraignment, in the context of a criminal trial. [14]
Section 154 of the Criminal Procedure Act identifies the effect of a plea of not guilty on arraignment: 154 Plea of "not guilty" If an accused person arraigned on an indictment pleads "not guilty", the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly.
As noted by Howie J in Janceski, answering to the indictment on arraignment has that effect, whether the arraignment takes place before the jury panel or not. [15] Howie J also noted: "[220] There is authority that there can be a valid trial even without an arraignment provided that the accused has indicated his intention to plead not guilty to the charge before the court: R v Williams [1976] 1 QB 373. In that case the Court of Appeal held that the accused had the right to waive the right to be arraigned. There the jury was empanelled on the mistaken belief that the accused had on an earlier occasion pleaded not guilty on arraignment. However, it should be noted that neither the Court of Appeal nor the trial court apparently believed that it was necessary for the accused to be re-arraigned before the jury panel where there had been an earlier arraignment." [16]
The procedure adopted in Williams was further from usual practice than is the present case. A month before his trial, the accused had appeared to stand trial, and had been called upon to enter the dock and identify himself, which he did. Counsel then sought an adjournment and neither the arraignment nor the trial proceeded on that day. The statement by counsel for the defendant involved "a clear intimation that the defendant intended to contest the charge and that he proposed to plead not guilty to the indictment." [17] A month later the trial was relisted, and proceeded directly to the process of empanelling the jury. That being done, the clerk read out the terms of the indictment and continued: [18] "To this indictment he has pleaded not guilty, and it is your charge to say, having heard the evidence, whether he is guilty or not guilty."
Shaw LJ, speaking for the Court (Scarman and Shaw LJJ and Nield J) then observed: "Thus the defendant heard the indictment read out. He heard also the statement that he had pleaded not guilty to it. No one present, other than the defendant himself, could have known that the assertion that he had pleaded not guilty out of his own mouth was not in accord with the facts. However the defendant made no demur. If any question had arisen to his mind, he would no doubt have dismissed it as being of no practical consequence. After all it was his intention and desire to enter a plea of not guilty to the charge and to be tried by the jury."
On appeal, Mr Williams took the point that "the omission of any formal arraignment, with the consequence that no plea was taken, is fatal to the validity of the trial." [19] He relied upon Reg v Ellis: [20] that case was distinguished in Williams, the Court stating: [21] "There the critical issue was whether a plea of guilty tendered by counsel and not by the accused himself could be regarded as an effective and binding plea. It is of course plain to see why it cannot and should not be so regarded. It is a plea which is self-incriminatory and self-incrimination cannot be vicariously accomplished. Any contrary view would be fraught with manifest dangers. Injustice rather than justice would the likely products of a principle which permitted indirect delegated confessions of guilt."
The Court in Williams took a different view of a plea of not guilty which is "vicariously offered or tacitly conveyed", noting that it was "difficult to conceive what possible prejudice to an accused person could derive from such a procedure." [22] That plea contained no confession of guilt; quite the contrary.
The Court then extracted a passage from Sir James Fitzjames Stephen, History of the Criminal Law of England, to the following effect: [23] "For reasons which it is now difficult to represent clearly to the mind, it seems to have been considered in early times that criminals accused of felony could not be properly tried unless they consented to the trial by pleading and 'putting themselves on the country.' The prisoner was first required to hold up his hand, and having done so, or having otherwise owned himself to be the person indicted, the substance of the indictment was stated to him, and he was asked the question, 'how say you, are you guilty or not guilty?' If he said, 'not guilty,' the answer was 'culprit, how will you be tried?' to which the prisoner had to reply 'by God and my country.' Sacramental importance was attached for centuries to the speaking of these words."
The Court then noted that "[i]nsistence on an express plea of not guilty by the defendant himself is no longer a necessary safeguard of justice where that is the intended plea and where the ensuing proceedings are precisely what they would have been if the accused had himself made the plea in plain terms." [24] The Court also referred to United States authority for the proposition that arraignment and even the plea may be waived in criminal cases. [25] The Court adopted that position "as being consonant with the law of England as well as with good sense for no detriment can ensue to a defendant from the application of these principles." [26] The history of arraignments was recounted in similar terms by the Victorian Full Court in R v Talia. [27]
The requirement for arraignment is now found in statute (Criminal Procedure Act, s 130(3)), but the procedure for arraignment is not specified. It may be assumed, therefore, that the legislature intended no change in the manner of conducting an arraignment under the general law. Although it was and remains common practice to require the accused to plead personally to each count in an indictment, under the general law, a failure in that regard did not vitiate the ensuing trial, so long as it was clear that the accused knew the contents of the indictment and in fact intended to plead not guilty.
The only other function of a plea being taken before the jury panel (and it had to be taken before a jury was empanelled as that would not occur if the plea was guilty) was to ensure that the jury understood that the accused had placed himself in their hands. However, that function was served by the judge stating, immediately the arraignment had been completed: [28] "Members of the jury panel, the trial which has just commenced by the reading of those counts on the indictment, you would have heard that I directed that pleas of not guilty be entered. I made that direction because the accused in this case, Mr Amagwula, is not legally represented. Normally where a lawyer was appearing for an accused person, after that person had received legal advice from such a representative, the person would have the opportunity of entering the plea of guilty or not guilty, but we have a practice in our courts where a person is not legally represented and where the proceedings have got to this stage that the trial judge direct that pleas of not guilty be entered on behalf of the accused person."
Whether or not there was such a practice and whether or not it was an appropriate practice, it is clear that the jury were left in no doubt as to the nature of the charges and the plea of not guilty.
Applying the principles in Williams, the expression of the plea by the accused is no longer a necessary safeguard of justice; the plea was intended and the ensuing proceedings were precisely what they would have been had the plea been made by the accused himself. Furthermore, the accused had in fact expressly made such a plea to an earlier indictment in identical terms; his intention to protest his innocence had been reiterated minutes before the October arraignment in an exchange with the trial judge, which indicated an unequivocal intention to plead not guilty. Finally, the step taken by the trial judge of directing pleas of not guilty, and the judge's statement to the jury, were made in the presence of the accused; to the extent that he had a right to enter the pleas personally, his silence in the face of the procedure adopted in his presence before the jury should be treated as a waiver of that right.
Given the absence of any prejudice to the accused in the procedure in fact adopted, and absent any statutory implication that a different procedure was required to ensure the validity of the trial, there was no miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act 1912 (NSW) in the judge taking the step of directing the entry of the plea. Ground 1 must be rejected.

Ground 2

As noted above, there were five limbs to ground 2. Ground 2 was carefully and properly drawn in terms which identified each element as giving rise to a miscarriage of justice. These may first be examined separately and then cumulatively. The appellant required leave to pursue this ground.

(i) the applicant proving unable to conduct his defence as a result of being unrepresented

As noted above, the first limb of ground 2 was carefully drafted so as not to indicate, directly or by implication, that the refusal by the trial judge to adjourn the hearing because the accused was unrepresented was challenged. The submissions conceded, correctly, "that this was a consequence of his own decisions to withdraw instructions from previous representatives." [29] To that it may be added that, as the respective counsel and solicitors made clear in withdrawing on 6 February 2017, and again shortly before the trial commenced, it was the failure of the accused to give written instructions which would permit counsel to run the trial which led to their withdrawal. It was submitted that the trial was unfair because the accused effectively declined to cross-examine police witnesses, or to act in what may have been his own interests.
It is clear from the exchanges with the judge that the accused was, as the judge surmised, an intelligent man who was well capable of speaking for himself when he deemed it appropriate in his own interest. He made it clear that his defence turned on the proposition that there was a conspiracy between the police and the man known as Ozone. His case appears to have been that the Ozone (a pseudonym or nickname [30] ) was a Nigerian who was due to be deported and, to forestall that event, became a police informant. [31] Ozone, in collusion with police, planted the drugs in the Amagwula residence. The police, on his case, were responsible for planting fingerprints on the plastic bags. He told the jury that he could not call evidence to support that case because he had sought to have an investigation into Ozone "that was ordered in 2015" and was not done.
The approach the Court should adopt in determining whether the accused was able to run his case requires an assessment, as with claims with incompetence of counsel, by reference to the fairness of the process. [32] In the case of counsel, the court will not assess the correctness of a tactical decision made by counsel which is open to question. [33] In this case, there were two categories of tactical decision made by the appellant himself. The first tactical decision was to refuse to give instructions to counsel to run his case. Counsel had been made available and had returned after once withdrawing. There was no hasty or ill-informed decision; it was clearly a deliberate decision made in the knowledge that, as he had been warned by at least one judge, an adjournment would not necessarily result in bail or parole being granted and, if he refused the assistance of counsel, he would be required to run the case himself.
The second category of decisions involved his choice as to how to run the case. It may be assumed from the absence of counsel and from his own limited cross-examination of police witnesses that he had no independent material to put forward to support his conspiracy theory and alleged concoction of fingerprints by the police. It also appears that he had no evidence that Ozone had in fact planted the drugs. In short, there was no unfair process, but rather a series of calculated decisions by the accused. That circumstance does not give rise to a miscarriage of justice.

(ii) refusal to arrange for Mr Ozone to attend court to be examined and cross-examined

This ground was carefully formulated; it tacitly acknowledged that for a sound forensic reason a subpoena could have been issued to require Mr Ozone's attendance at the trial. There had been ample opportunity prior to the commencement of the trial for the issue of a subpoena to Mr Ozone, either when the appellant was represented or thereafter.
At the beginning of the trial, on 23 October 2017, in the absence of the jury the appellant stated that he had not been targeted by the police in relation to the suspected drug activity. He continued: [34] "What happened is that I was targeted by Ozone. There is a lawyer in Nigeria - the investigation about him which was discussed in court. There is a lawyer in Nigeria that is willing to conduct that investigation. He is waiting for a court order to do that."
The following day, after the trial had commenced, but in the absence of the jury, and shortly before the luncheon adjournment, the judge told the appellant that he would ask him at 2 o'clock if he had a list of witnesses that he would wish "even at this stage, for consideration to be given for a late subpoena to be issued." [35] On returning after the luncheon adjournment, the judge immediately asked if he had such a list. The appellant responded: [36] "The, the list that - of witnesses, I have witnesses that I have in mind to call. Ozone is number 1 on that list and I need a lawyer to be able to talk to and advise me on who to call and why it is necessary, that I can explain to that lawyer." The judge remarked that that should have been done eight months earlier and returned to his request for a list of names and addresses: the appellant responded that he had not prepared a list because he did not have a lawyer but that "Ozone would be number 1 on any list of witnesses that I will call." [37] The following exchange took place: "HIS HONOUR: I dealt with that issue yesterday. I'm not going to re-agitate it again today. Ozone is not going to be called to give evidence. I'm not persuaded he has any legitimate relevance to this case on what you've told me so far. What has he got to do with the drugs in the roof of your house? ACCUSED: Your Honour, Ozone has everything to do with-- HIS HONOUR: Did he place-- ACCUSED: --what the police are saying. HIS HONOUR: Are you going to tell this jury that he placed those drugs in the roof of that house? ACCUSED: Your Honour-- HIS HONOUR: Are you? ACCUSED: --these are questions that Ozone should be able to answer."
Following a discussion as to the tender of a police log, the appellant returned to the question of Mr Ozone's relevance. The prosecutor noted that Mr Ozone had been a witness for the prosecution in the trial with respect to knowing involvement in the January supply offence. A copy of the sentencing judgment in that matter was provided to the judge. Discussion continued after the luncheon adjournment: [38] "HIS HONOUR: Are the two police officers, whose names you quite improperly mentioned before the jury before lunch, are they the undercover police officers who were involved in the controlled purchased of methylamphetamine in January 2012, which was the subject of a trial before her Honour Judge Norton on 5 September 2014? ACCUSED: Your Honour they are among the officers that are involved in this matter. ... Your Honour I know that these officers have roles in this matter because as far as I am concerned, this is one operation against me by Ozone and the police. And what is going on here is that Ozone wants to, or is, using the police and the police wants to, or is, using Ozone."
Submissions for the appellant in this Court stated that he "repeatedly asserted that Mr Ozone would be required for cross-examination in order that he be able to put his [the appellant's] case to the jury." [39] It was also submitted that "the appellant was clearly suggesting Mr Ozone, either with or without the collusion of the police, had placed the drugs in the roof cavity [of the appellant's kitchen]." [40] However, it is far from clear that the appellant did want Mr Ozone called for cross-examination where he (i) had taken no steps to achieve that in the past, (ii) repeatedly referred to the need for the prior investigation in Nigeria, (iii) declined to provide a list of witnesses, including Mr Ozone (merely stating that if he did produce a list Mr Ozone would be on it) and (iv) declined to put essential questions to the police, on the premise that they were involved in a conspiracy with Mr Ozone. The appellant's submission that "it was incumbent on [the judge] to ensure Mr Ozone was brought to court, if he could be, in order that the appellant be able to examine him in an attempt to provide some factual basis for his ultimate contention" was untenable. The submissions further referred to "the hypothesis that Mr Ozone was responsible for the drugs in the [roof] cavity", an hypothesis which, it was said, could only properly be put before the jury if Mr Ozone attended. [41]
Given the failure of the appellant to cross-examine, both the prosecutor and the judge put basic questions to the police officers, some of whom denied knowledge of Mr Ozone and all denied involvement in planting the drugs in the kitchen roof cavity.
As counsel for the Director submitted, (i) the Court had no power to direct an investigation to be carried out in Nigeria, (ii) there was no part of the prosecution case which involved Mr Ozone, (iii) there was no indication as to what evidence might conceivably have been obtained from Mr Ozone if called as a witness and if cross-examined by the appellant, and (iv) even on the appeal, when the appellant was represented by senior counsel, there was no hint as to what evidence could potentially have been given.
If the appellant had provided further evidence which he had been unable to call at trial, this Court would have been required to consider whether, taken with the evidence called at trial, there was a significant possibility that a properly instructed jury, acting reasonably, would have acquitted the appellant. [42] Mason and Deane JJ in Gallagher identified the requisite criterion as there being "no significant possibility that the unavailability to the applicant of the new evidence at the time of the trial had resulted in a miscarriage of justice in the relevant sense." [43] The issue in Gallagher was whether a possibility of a different outcome would suffice, or whether a likelihood was required; the possibility test was recently affirmed in a slightly different statutory context in Van Beelen v The Queen. [44] The point for present purposes is that the allegation of miscarriage does not reach the stage of assessing the possible effect of evidence which had been unavailable at trial. Taken in isolation, there is no basis upon which to uphold ground 2(ii).

(iii) evidence of fingerprints and photographs taken whilst applicant in police custody for a prior matter

The complaint with respect to this evidence was that the requirement by the trial judge that the prosecution prove the provenance of the fingerprints used for comparison with the fingerprints on the plastic bags containing drugs led to the jury learning that the appellant had been subject to a police investigation in September 2009, when fingerprints and photographs had been taken. The appellant complained on appeal that these steps were unnecessary, because there had never been a challenge to the finding of his fingerprints on the plastic bags found in the roof cavity of his home.
Given the approach of the appellant at the trial, which involved putting the prosecution to proof by his plea of not guilty, but declining to ask questions in cross-examination of most of the witnesses, the trial judge was correct to insist that each relevant aspect of the prosecution case be properly proved. In fact, when the appellant came to address the jury, he made a direct attack on the identification of his fingerprints. [45] In the course of his address, the appellant sought to turn to his advantage the fact that the fingerprints used for comparative purposes had been obtained three years earlier.
In the course of the summing-up, there was little reference to the time at which the fingerprints were taken. What was said occurred in a general direction as to speculation, in the following terms: [46] "For example, you must not speculate, as you were invited to by Mr Amagwula, as to whether or not he was the subject of fingerprinting in 2012. You must not speculate that, if he were the subject of fingerprinting in 2012, why the person who took the prints is not here."
Appropriate proof of the comparison of fingerprints undertaken at trial was an entirely proper mode of proceeding; there was no basis for any inference that there was a miscarriage of justice because the jury were told that Mr Amagwula had been fingerprinted and photographed by police three years earlier. Although potentially prejudicial, the information was properly led by the prosecutor and no claim of prejudice was raised at trial; if it had been it could have been dealt with by a further direction.

(iv) content of prosecution address

Although the prosecutor had indicated that he did not intend to address, the judge had responded that it was appropriate that he address the jury. There is no complaint about that step in the process. Rather, the complaint is made that the prosecutor then overstepped the mark, making intemperate and inflammatory remarks and belittling observations about the appellant's case.
The address, concededly, was brief. For the most part it was a straightforward, unembellished summary of the factual material. The points of embellishment were as follows: [47] "So, ladies and gentlemen, when it comes to the issue of possession, the Crown says that there is an overwhelming conclusion, and the only rational conclusion short of going off with the fairies, that the person who possessed this item with those prohibited drugs in there was the accused. … … Those questions posed interesting propositions of potential fabrication of evidence, of a conspiracy theory, but the questions are not the evidence. It's the answers that are the evidence in this trial …. So there is no evidence at all of any fabrication. There is no evidence at all of any diabolical conspiracy. If, as again in a fit of fantasy, you want to look at it, come back to reality and look at Detective Sergeant Laverdure's conclusion in his expert statement. …"
The prosecutor then referred to the material found in the red make-up bag, which was said to be worth $260,000-$350,000 and the small amounts of heroin and cocaine found in the bedroom occupied by the appellant, and continued: [48] "How can that be? Is that just an uncanny coincidence or part of a Mossad-style setup to, as it were, layer the false evidence? How were the fingerprint[s] found on the bags, plural? Again, one is only left to ponder but, when one looks at things in the cold hard light of day …."
The use of colloquialisms in addressing a jury can be fraught for a prosecutor. However, there was nothing that qualified as intemperate or inflammatory, or belittling of the accused's case. It was important that the jury be directed as to the difference between unsubstantiated allegations which had been made by the appellant in their presence, and the evidence. There was, as the prosecutor rightly noted, no shred of evidence to support the conspiracy theory proposed by the appellant. This particular must also be dismissed.

(v) remarks of trial judge towards the appellant and about his closing address

The submissions acknowledged that the "truculent attitude" of the appellant "might test the patience of any trial judge." There was also acknowledgment of the frustration of the judge at having to revisit on several occasions remarks which had been the subject of a ruling in the absence of the jury, but which were repeated by the appellant in the presence of the jury.
There is no purpose in setting out the brief passages sought to be relied upon by the appellant in his submissions. There was no substance in the complaints of a miscarriage based upon any observations made by the trial judge to or about the appellant in the presence of the jury. The particular is without substance.

(vi) cumulative effect

There are circumstances in which an accumulation of unfortunate statements or departures from proper procedure, none of which in themselves demonstrate a miscarriage of justice, can, when taken together, properly be so characterised. That was not this case. The complete lack of substance in most of the complaints provided no basis for an accumulation giving rise to a miscarriage.
Ground 2 must be rejected.

Orders

There was limited substance in ground 2, but in circumstances where there had been a difficult trial, albeit a short one, involving an unrepresented accused, and where there has been a serious attempt by counsel to identify potential breaches of fairness in the trial process, it is appropriate that the Court grant leave to appeal. Accordingly there should be a grant of leave with respect to ground 2. Nevertheless, both grounds must be dismissed; the appeal should be dismissed.
BUTTON J:

Introduction

This application by Mr Chidi Gozie Amagwula for leave to appeal against conviction is founded on two separate propositions: first, that the irregular way in which his arraignment occurred at the commencement of a trial by jury rendered the subsequent trial a nullity; and secondly, that, whilst unrepresented, he was subjected to a trial so unfair that it constituted a miscarriage of justice.
The first proposition in my opinion raises a pure question of law, but the second raises a question of mixed law and fact; for convenience, I shall simply refer consistently to Mr Amagwula as "the appellant".
The appellant stood trial before Judge Colefax SC (the trial judge) and a jury of twelve in the District Court at Parramatta on an indictment containing two counts of supplying a prohibited drug, and two counts of supplying a commercial quantity of a prohibited drug, contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA).
The trial commenced on 23 October 2017, and the appellant was found guilty of all 4 counts on 2 November 2017.
The prohibited drugs were located in a make-up case, hidden in the roof cavity (accessed by a manhole) of the appellant's home during the execution of a search warrant on 4 April 2012. The Crown case proceeded on the basis of the "deeming provision" in s 29 of the DMTA. The offences consisted of the possession for supply of: Count 1: a commercial quantity (771 grams) of cocaine; Count 2: a commercial quantity (275 grams) of heroin; Count 3: an indictable quantity (213 grams) of methylamphetamine; and Count 4: an indictable quantity (198 grams) of methorphan.
It is immediately noteworthy that the trial by jury of the appellant concluded five years and six months after he had been arrested and charged with the offences in question. It is even more remarkable that he had been in custody for all of that time.
The appellant was convicted, and sentenced by his Honour on 20 April 2018 to an aggregate sentence of imprisonment of 12 years with a non-parole period of 9 years, to commence on 4 April 2014. No application for leave to appeal against that sentence has been made to this Court.

Procedural background to trial

In order to explain my approach to the second ground, it is necessary first to set out in quite some detail all that took place between the arrest of the appellant and the commencement of the trial. Much of the following chronology is derived from material set out at a pre-trial proceeding before Judge Culver on 6 February 2017, the correctness of which was not disputed in this Court.
On 4 April 2012, the police executed a search warrant at the home where the appellant resided with his wife and two children.
The police seized the drugs that led to the four counts set out at [73] of this judgment (the April supply). A set of scales and cash in various denominations of Australian, US and South African currencies were also seized. Fingerprints of the appellant were said to be on at least the bag containing prohibited drugs in the roof cavity. In other words, the Crown case was straightforward.
The appellant was then arrested and charged with five counts of supply. One count related to a separate "actual" supply alleged to have occurred previously on 19 January 2012 (the January supply). The remaining charges were identical to the four counts listed above at [73] of this judgment, except the drug in the fourth charge was spelt as "Methorpan".
On 29 April 2012, the Supreme Court refused the appellant's bail application.
On 12 September 2012, the matter was before the Local Court at Burwood, and all charges were committed for trial. The appellant was represented by a solicitor, Mr Tosevic.
On 18 October 2012, the appellant was arraigned in the District Court at Parramatta. He was again represented by Mr Tosevic. The indictment presented contained the five counts described in [79] of this judgment (that is, the drug in the fourth count was spelt as "Methorpan"). The appellant pleaded not guilty to all five counts. Whether those pleas came personally from the appellant, or were entered on his behalf, is not clear on the material before this Court, but I presume that it was the former.
The matter was then listed for trial on 18 March 2013 (the first trial listing).
On 18 March 2013, Mr Williams of counsel appeared for the appellant, instructed by Mr Tosevic. The parties indicated they were ready to proceed at 2 pm that day.
On 19 March 2013, the following day, there were no judges available to hear the matter. The matter was adjourned for one more day to 20 March 2013 for trial before Judge North.
On 20 March 2013, Judge North indicated that he had commitments that would require a five day break during the trial. The list judge, Judge Armitage, then vacated the trial date.
At the same time, the count relating to the January supply was severed from the remaining four counts, and was listed for trial on 8 October 2013. This trial featured a co-accused, Mr Osuamadi.
The trial of the remaining counts relating to the April supply was listed to commence on completion of the trial for the January supply count; that is, some time after mid-October 2013 (the second trial listing).
On 10 October 2013, Mr Williams, instructed by Mr Tosevic, appeared again for the appellant. There was a voir dire in the trial of the January supply in relation to the admissibility of evidence from a registered police source, a Mr Ozone. Judge Armitage ruled that the evidence was admissible.
On 11 October 2013, the appellant made an application for separate trials with regard to the January supply (that is, the appellant sought a trial separate from the trial of Mr Osaumadi). That application was refused.
On 14 October 2013, Mr Williams informed the Court that the appellant had withdrawn his instructions, and no longer wished to have Mr Williams represent him. The matter than returned to the then-list judge, Judge Sides QC.
Judge Sides vacated the trial of the January supply. His Honour remarked that it appeared that the appellant had sacked his lawyers to circumvent the refusal of the application for separate trials. His Honour adjourned the matter to 17 October 2013 for mention.
On 17 October 2013, Mr Tosevic appeared again for the appellant. The matters were listed for trial on 18 November 2013 (the third trial listing). The first trial - featuring two accused persons and relating to the January supply - had an estimate of seven to ten days. The second trial - with only the appellant as the accused, and relating to the April supply - had an estimate of three to five days.
On 18 November 2013, the January trial with the two co-accused proceeded to trial before Judge Craigie SC. However, the jury was discharged on two separate occasions. The registered source, Mr Ozone, gave evidence in these aborted trials.
After the second jury discharge, the trial of the January supply was then listed for trial on 1 September 2014 before Judge Sides. Mr Crawford-Fish appeared at that stage as defence counsel, with Mr Tosevic continuing to instruct.
On 3 September 2014, that trial commenced before Judge Norton, with the same two legal representatives for the appellant. The jury found the appellant and the co-accused guilty. The matter of the January supply was then listed for sentence on 12 December 2014.
On 2 October 2014, Mr Tosevic appeared for the appellant with regard to the April supply. This matter was listed for trial on 25 May 2015, with an estimate of five to seven days (the fourth trial listing).
On 12 December 2014, that being the date listed for the proceedings on sentence for the January supply, Mr Crawford-Fish and his instructing solicitor sought leave to withdraw. The January supply was then stood over for sentence on 27 March 2015.
For that offence, the appellant was finally sentenced on 1 May 2015 (that is, at least seven months after the jury had returned its verdict of guilty) to a head sentence of 6 years with a non-parole period of 4 years 2 months and 12 days, commencing on 4 April 2012.
On 25 May 2015, the April supply came before Judge Sides again. Mr Stitt of counsel, instructed by Ms Dias, appeared for the appellant. Counsel made an application to adjourn the remaining trial, on the bases that counsel had only just been briefed; the trial was complex; the appellant was content to remain in custody notwithstanding the inevitable delay; the defence opposed the Crown's foreshadowed tendency evidence; there was a need to investigate the involvement of the registered source in "the Biafran Alliance"; and lastly, there had been an appeal lodged to the Court of Criminal Appeal in relation to the conviction for the January supply.
Judge Sides granted the application and adjourned the matter for trial on 4 April 2016 (the fifth trial listing).
On 4 April 2016, the matter came before the trial judge, Judge Colefax. Mr Stitt (instructed by Ms Dias) appeared for the appellant again. The appellant made an application to vacate the trial, on the basis that the Crown would no longer rely on tendency evidence (from the January supply), and the defence could not as a result now meet the Crown's case. His Honour rejected the application, and the matter was referred to Judge Marien SC for trial on 5 April 2016. Defence counsel then made further applications to adjourn the matter and for a permanent stay, both of which were refused by the trial judge.
On 6 April 2016, Judge Marien granted the defence team leave to withdraw from the matter due to ethical difficulties. The matter returned to Judge Colefax, and his Honour adjourned the matter to 6 February 2017 for trial (the sixth trial listing).
On 5 December 2016, both parties indicated that the matter was ready to proceed. Although it is not entirely clear whether the appellant was represented on that day, on balance it appears from subsequent events that he was.
On 6 February 2017, the matter came before Judge Culver. The appellant appeared unrepresented. Earlier that morning, leave had been granted to his then-solicitor (Ms Hempel) and counsel (Mr Buckman) to withdraw, on the basis that the appellant had refused to sign instructions.
The Crown prosecutor indicated to the Court that the matter was ready to proceed from his perspective. He also told the Court that the legal team of the appellant had indicated to him before they withdrew that the defence case would be an "explanation case". However, the Crown prosecutor explained that he was not sure whether the appellant would be disputing the presence of his fingerprints on the bag found in the roof cavity of his home, or that he would be asserting that he was "set up by a political opponent" from his country of origin, Nigeria.
The Crown prosecutor presented an indictment for the four counts relating to the April supply. The indictment was dated 2 February 2017. The appellant was then arraigned on that indictment before Judge Culver. At that stage, the drug recorded in the fourth count on the indictment remained typed as "Methorpan" (in fact, the drug that appears in schedule 1 of the DMTA is "Methorphan"). The appellant personally pleaded "Not guilty" to each of the four counts.
The appellant sought an adjournment of the trial on the basis that he should be legally represented at trial, and that he was not aware of the details of the Crown's evidence against him. Her Honour noted that the appellant was sufficiently familiar with his matter and had been represented by various counsel in the past. Her Honour further remarked that the appellant was able to represent himself. The application was refused, and her Honour ruled that the trial would proceed the next day if there was a judge available to hear the matter.
On 7 February 2017, the matter came before Judge Sides. There was no trial judge available until the next day, and the matter was listed for trial accordingly. The appellant indicated to the court that he was not in a position to defend himself whilst in gaol and that "[f]or this trial to go ahead, there are witnesses that would need to be subpoenaed and … what they've got to say is very important in this matter …" (AB 793). His Honour advised the appellant to provide to the Court the following day a list of witnesses to be subpoenaed.
On 8 February 2017, due to unavailability of judges, Judge Sides again stood the matter over for trial to the following day. The appellant did not produce a list of witnesses. He indicated again that he would not be able to "run the trial" by himself whilst incarcerated.
On 9 February 2017, Acting Judge Armitage gave the appellant "one last opportunity" to resolve his differences with Legal Aid, specifically with Mr Buckman and Ms Hempel, who (as I have said) had withdrawn from the matter earlier that week. Failing that, his Honour indicated that the trial would proceed with the appellant unrepresented. The matter was then adjourned to Monday 13 February 2017, in order to allow the appellant to make contact with Legal Aid.
On 13 February 2017, Mr Buckman and Ms Hempel appeared before Acting Judge Armitage. After a conference with the appellant, Mr Buckman confirmed to the Court that a resolution could not be reached, and that he could not appear for the appellant. Acting Judge Armitage granted counsel and solicitor leave to withdraw again.
Subsequently, the appellant made an application for an adjournment for various reasons. One of the reasons provided was that an adjournment would allow him to subpoena witnesses, "surveillance evidence", "phone records", and "meeting documents".
However, when asked about the evidence the witnesses would give, the appellant replied: "ACCUSED: That is why I have difficulty because I know that the evidence would go to this matter in terms of helping to prove my - my innocence- HIS HONOUR: How? ACCUSED: However, to be able to specifically say it without going into where it goes to my defence, I don't know how to guide myself while doing that, your Honour."
In similar terms, the appellant explained shortly after that "I don't know what the witness would say… But I need that witness to come and say what he knows or what role he played in all of this" (AB 842).
Thereafter, the appellant agreed with his Honour's summary of the defence case: that the appellant "was not responsible for the placement of the drugs in the roof and that he knew nothing about them" (AB 843).
Subsequently, orders were made to vacate the trial date and to have the matter stood over to 16 February 2017 to be allocated yet another trial date.
On 16 February 2017, Judge Sides refused to hear an application for bail by the appellant. His Honour listed the matter for trial on 16 October 2017 (the seventh trial listing). The matter was also listed for mention on 16 March 2017.
On 16 March 2017, the appellant appeared unrepresented. Judge Sides made orders in relation to a timetable for case management as proposed by the Crown. The matter was adjourned to 6 April 2017.
On 6 April 2017, the appellant appeared unrepresented again. He informed the Court that he had been in contact with Legal Aid and was waiting to be assigned a lawyer. Judge Sides stood the matter over to 20 April 2017.
On 20 April 2017, the matter was adjourned to 25 May 2017 in order to allow the appellant to respond to paperwork from Legal Aid.
On 25 May 2017, Mr Reetov, appearing merely as a friend of the Court, confirmed that the appellant had a grant of legal aid, on the proviso that he co-operate with his assigned lawyer, Ms Hempel. The appellant indicated that he did not wish to instruct Ms Hempel.
On 16 October 2017, the matter came before Judge Bennett SC. The appellant was still unrepresented. The appellant sought to have the trial date vacated, and to be granted bail to allow him to prepare his defence. Both applications were refused. As there was no available judge, his Honour stood the matter over to the following day, and indicated that that the matter would then proceed to trial.
On 17 October 2017, the appellant appeared unrepresented. He sought to adjourn the matter again to obtain legal advice and prepare his defence. Judge Bennett refused the application for an adjournment, indicating that the matter would proceed to trial the following Monday. Judge Bennett adjourned the matter to 19 October 2017 to ensure that any further material from the Crown could be handed to the appellant.
On Monday 23 October 2017, the matter was listed to proceed to trial before the trial judge, Judge Colefax. The appellant was still unrepresented. He immediately proceeded to make an adjournment application on the basis that "the registered source … matters for [the appellant's] defence" and that the involvement of the registered source had not yet been investigated. The relevant extract is as follows: "ACCUSED: Yeah, your Honour, I have an application to make. I was told last week to make that application to you this morning. HIS HONOUR: No, I've spoken to the list judge. There will be no application heard. Come to the bar table. If you don't come to the bar table the officers will assist you. Officers, bring that man to the bar table, please. Now take a seat, the first seat behind the lectern, thank you, sir. Mr Amagwula, I have spoken at length with the list judge this morning. I know exactly what has happened in this Court in the last two weeks. I have reviewed the files. I have a very good working knowledge of what has happened in this Court over the last seven (as said) years. The trial will proceed this morning with the empanelment of a jury after I say something to you. Please take a seat. Please sit down. ACCUSED: Your Honour, can I please say something? HIS HONOUR: You have five minutes. ACCUSED: Thank you, your Honour. Your Honour, one reason that I cannot run the trial is because I am not a lawyer and the other reasons is that the involvement of the registered source in this matter was supposed to be investigated. That investigation has not been done. Without that investigation being done, I cannot get a fair trial in this matter. HIS HONOUR: Did you raise that with the list judge last week? ACCUSED: I did and the list judge told me that I can take that application to you this morning and that is what I would like to do, your Honour. HIS HONOUR: That's not what the list judge told me. ACCUSED: I, I, I have more to say. The reason is that in this whole operation I was not the target of the police operation in this matter. The Crown said that to the Court, that I was not the target of the police operation. The other things is the registered source, who he is or who he is not, matters for my defence in this matter. His role in this matter also matters for my defence. If that investigation is not done, I, I cannot be able to defend myself in this matter. HIS HONOUR: You were arrested in 2012. ACCUSED: Yes, your Honour. HIS HONOUR: This matter has been lurking in the courts for five years. It would be an affront to the administration of justice if this trial did not proceed today. You have had plenty of opportunity of retaining lawyers. You have had lawyers. You have rejected lawyers offered to you by the Legal Aid Commission. This trial is proceeding this morning. The application for an adjournment is refused. ACCUSED: Your Honour, as I said-- HIS HONOUR: No, your application-- ACCUSED: --I am not the target of the police operation, your Honour. HIS HONOUR: It doesn't matter, Mr Amagwula. Plenty of times in operations people other than those initially suspected of criminal activity are caught up in the net. ACCUSED: And that is not what happened in this matter. HIS HONOUR: It doesn't-- ACCUSED: What happened is that I was targeted by Ozone. There is a lawyer in Nigeria - the investigation about him which was discussed in court. There is a lawyer in Nigeria that is willing to conduct that investigation. He is waiting for a court order to do that. HIS HONOUR: Mr Amagwula, I have already ruled that your application for an adjournment is refused. I will hear no further argument on that subject. We are now going to proceed to the trial. ACCUSED: I cannot get a fair trial, your Honour. Another complaints that I want to make is that last week a document was passed to be shown to his Honour and if I had a lawyer that document would have been shown to my lawyer before being passed to his Honour. That did not happen because I don't have a lawyer. HIS HONOUR: Yes, that's your-- ACCUSED: I am not a lawyer. HIS HONOUR: That's your fault. ACCUSED: I have never done this, I have never done this before. HIS HONOUR: Yes, I-- ACCUSED: I cannot get a fair trial under the circumstances. HIS HONOUR: Yes, thank you. ACCUSED: The next thing that I wish to add is that the response that is supposed to be made has not been made and the reason that that response has not been made is because I haven't had a lawyer since February, and because I haven't had a lawyer that's why that response has not been made. HIS HONOUR: Yes. ACCUSED: Your Honour, I am asking you to please reconsider. I cannot get a fair trial in this matter. The reason that I was, it, it is being said that I did not sign instruction. What the Court has not been told is that that investigation of the registered source's involvement has not been done and that investigation needs to be done in order for me to be able to defend myself properly in this matter, your Honour. I am innocent in this matter. All I need is a chance in fairness to defend myself properly. I have not been given that chance, not at any point in this matter. I have been in prison for more than five years and six months. I would like to leave prison today, your Honour. The reason I am here is because I want to get to the point where I can be able to defend myself in a proper way. That has not happened at any point, isn't likely to happen if this trial proceeds. I am asking you, your Honour, please give me the chance in fairness and justice. HIS HONOUR: Thank you, Mr Amagwula, please take a seat. Please take a seat." (tcpt, 23 October 2017, p 1(32)-1(47)) (All bolding in transcript extracts is emphasis added by me)
Judge Colefax refused the application on the basis that the appellant did not raise any new circumstances since the last refusal on 17 October 2017 by Judge Bennett of the appellant's adjournment application.
The Crown prosecutor then presented an indictment; to be clear, no jury panel was present in the courtroom. The Crown prosecutor indicated that that indictment was slightly different from the indictment the appellant was arraigned on in February of that year. The Crown prosecutor explained that the prohibited drug particularised in count 4 had been changed from "Methorpan" to "Methorphan" (that is, in conformity with the DMTA). The relevant exchange was as follows: "Mr Crown, do you have an indictment to present? CROWN PROSECUTOR: I do. It's slightly different to the indictment that was presented on 2 February. This one is dated 7 February 2017. The difference is in relation to count 4. The prohibited drug is, "Methorphan", not "Methorthan" [sic; "Methorpan"]. That has been amended. That's the only difference. HIS HONOUR: Thank you. Has a copy of this indictment been given previously to Mr Amagwula? CROWN PROSECUTOR: It has but we shall give him another copy. HIS HONOUR: Have you got a working copy for me, Mr Crown? CROWN PROSECUTOR: Yes, I should give you this document and ask for it back before the jury is empanelled so I can present it in court. HIS HONOUR: Yes, of course. CROWN PROSECUTOR: I'm just making sure that this working copy has been amended. It has not. Sorry, your Honour, the original indictment and a working copy. HIS HONOUR: Thank you. … HIS HONOUR: Thank you. Just pardon me while I read the indictment. Could I just ask you to initial the change to count 4, please, Mr Crown? CROWN PROSECUTOR: I think I might have to get Mr Everson to do that, having regard to my status. HIS HONOUR: Can your instructor do it? I think your instructor may have the authority to do it. I'll arraign him on that indictment, then I want to say something to him. Then we'll take a brief adjournment whilst the jury panel is brought up-- CROWN PROSECUTOR: Yes. HIS HONOUR: --and during that adjournment I will have that indictment handed back to you so that whoever needs to initial the amendment can do so." (tcpt, 23 October 2017, p 4(48)-5(12))
The appellant was then arraigned before his Honour on that indictment. His Honour directed that pleas of not guilty be entered in relation to each count, on the asserted basis that the appellant was not legally represented. In other words, those pleas did not come from the mouth of the appellant. The relevant extract from the transcript is as follows: "HIS HONOUR: ... Mr Amagwula, I'm going to ask my associate to arraign you on this indictment. Because you're not legally represented I won't ask you personally to enter a plea. I will direct that pleas of not guilty be entered in relation to each of them after you are arraigned. … Yes, Madam Associate, please arraign the accused. CHARGE 1 For that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, cocaine, in an amount of 771.4 grams, which amount is not less than the commercial quantity applicable to the prohibited drug HIS HONOUR: I direct that a plea of not guilty be entered in relation to that count. CHARGE 2 Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, heroin, in an amount of 275.33 grams, which amount is not less than the commercial quantity applicable to the prohibited drug HIS HONOUR: I direct that a plea of not guilty be entered to that count. CHARGE 3 Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, methylamphetamine, in an amount of 213.9 grams HIS HONOUR: I direct that a plea of not guilty be entered to that count. CHARGE 4 Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, methorphan in an amount of 198.5 grams HIS HONOUR: I direct that a plea of not guilty be entered in relation to that count." (tcpt, 23 October 2017, p (5)17-(6)(9))
Shortly thereafter, the appellant referred to the "registered source" again: "ACCUSED: Your Honour, please, I'm, I plead with you once again. There is information-- HIS HONOUR: No, if this is-- ACCUSED: --that-- HIS HONOUR: No, I'm sorry. ACCUSED: --has not been made available to the Court-- HIS HONOUR: If this is-- ACCUSED: --in relation to the-- HIS HONOUR: It this is another-- ACCUSED: --registered source. HIS HONOUR: Please don't talk over the top of me. If this is another application to adjourn this trial in relation to proceedings that relate to 2012 and which have been before the Court on very numerous occasions, including last week before the list judge and, indeed, before me at 10 o'clock this morning, the application is refused. I will not hear or entertain any further applications for an adjournment of the trial. There will be a brief adjournment whilst the jury panel is brought up. Thank you." (tcpt, 23 October 2017, p (9)5-(9)(30))

Aspects of the trial itself

The jury panel was then brought into Court. The appellant was arraigned in their presence, and a jury of 12 was empanelled. Again, however, pleas of not guilty were not entered by the appellant personally; rather, his Honour directed that pleas of not guilty be entered in relation to each count. The transcript is as follows: "HIS HONOUR: Thank you, Mr Crown. Yes, Mr Amagwula, will you please stand while my associate arraigns you? CHARGE 1 For that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, cocaine, in an amount of 771.4 grams, which amount is not less than the commercial quantity applicable to the prohibited drug HIS HONOUR: I direct that a plea of not guilty be entered. CHARGE 2 Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, heroin, in an amount of 275.33 grams, which amount is not less than the commercial quantity applicable to the prohibited drug HIS HONOUR: I direct that a plea of not guilty be entered. CHARGE 3 Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, methylamphetamine, in an amount of 213.9 grams HIS HONOUR: I direct that a plea of not guilty be entered. CHARGE 4 Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, methorphan in an amount of 198.5 grams HIS HONOUR: I direct that a plea of not guilty be entered. HIS HONOUR: Please take a seat, sir. Members of the jury panel, the trial which has just commenced by the reading of those counts on the indictment, you would have heard that I directed that pleas of not guilty be entered. I made that direction because the accused in this case, Mr Amagwula, is not legally represented. Normally where a lawyer was appearing for an accused person, after that person had received legal advice from such a representative, the person would have the opportunity of entering the plea of guilty or not guilty, but we have a practice in our courts where a person is not legally represented and where the proceedings have got to this stage that the trial judge direct that pleas of not guilty be entered on behalf of the accused person." (tcpt, 23 October 2017, p 9(41)-10(32))
In the absence of the jury, after its empanelment, the trial judge then explained to the appellant the usual procedures of the trial, including the opportunity for the appellant to call witnesses, and that the appellant had a choice with regard to giving evidence himself. His Honour said: "But assuming that there is a case to answer and assuming I don't give a Prasad direction, you then, sir, have an opportunity of calling your evidence in your own case. You may, but you do not have to, go into the witness box to give evidence yourself. If you do not go into the witness box I will tell the jury that you have a right of silence and that they are not to hold it against you if you do not go into the witness box, and I will tell them if they were to hold it against you it would be to destroy the right of silence. You will, therefore, have to consider at some point during the trial whether you will wish to give evidence or not. You also have the opportunity of calling witnesses. If you decide not to give evidence that doesn't prevent you from calling other witnesses. So if you want to have witnesses called you have the opportunity to do that after the Crown's case is complete, and if you do call witnesses you must ask them questions so that they can answer the questions and the answers become the evidence." (tcpt, 23 October 2017, p 16(34)-16(48))
The appellant then effectively sought an adjournment in order to issue subpoenas, which the trial judge refused: "ACCUSED: Your Honour, what I want to say is this. Like everything you have been saying up to a point I can't follow any more. If this trial goes ahead I cannot be able to run it. I do not want a situation where the jury comes in and I am sitting and not doing anything and I don't know what that is going to be like. The, the, the, the subpoenas that need to be issued, the witnesses that I want to call, they are not, that, those subpoenas have not been issued so they have not been called. The other witnesses that can be called I cannot call them because I'm in a situation where I cannot be able to call them. HIS HONOUR: Why haven't the subpoenas been issued at this stage-- ACCUSED: Because-- HIS HONOUR: --when this trial has been fixed for at least a year? ACCUSED: Yes, yeah, I'm coming, your Honour, because I do not have a lawyer. Also there are other court applications that need to be made for my defence. They have not been made. This person, Ozone, he made four statements in this matter. Of those four statements, two are the ones that I have, but those two that I do have, have different, have different signatures on them. HIS HONOUR: What is the name of that witness, Mr Amagwula? ACCUSED: Ozone. HIS HONOUR: Can you spell that for me? ACCUSED: Ozone-Z - Ozone-Z-Ozone-N-E. HIS HONOUR: Yes. ACCUSED: So those two statements of his that I have have different signatures on them. HIS HONOUR: Just excuse me for one moment. Do you know this witness, Mr Crown? CROWN PROSECUTOR: Originally the indictment contained a count of drug supply 19 January 2012 and then these four counts arising from 4 April. They were severed years ago. The trial of 19 January 2012 concerned as a witness a registered source by the name of Mr Ozone, quite true. That trial has been run and this accused has been convicted and sentenced in relation to that trial. He has no appeal to the Court of Criminal Appeal. HIS HONOUR: Is Mr Ozone to be a witness in this trial? CROWN PROSECUTOR: Mr Ozone has nothing to do with this trial. This trial revolves around a search warrant that was issued by a court and police attending and making a search and finding the things they say they found. Mr Ozone will not be referred to in the Crown case. He is irrelevant. HIS HONOUR: Thank you. The next point, Mr Amagwula? ACCUSED: Okay. Your Honour, this is really difficult for me. This Ozone-- HIS HONOUR: What is the difficulty, Mr Amagwula? The Crown case is that the search warrant was executed, your premises were searched, drugs were found there and the law says that there's a presumption that you're in possession of them. What's the difficulty about this case? Either you say you didn't know they were there, they weren't yours or what? ACCUSED: Your Honour, the difficulty there is that I cannot be able to get a fair trial or defend myself without Ozone. The reason is this Ozone, the, the, the, the warrant what the police used to come to search that house is one warrant. It was issued in relation to that matter which the Crown says is, has been dealt with. That's a matter, is also related, is also connected to this matter in a way that they are one matter in relation to me. HIS HONOUR: But you haven't raised with the Court of Criminal Appeal anything to do with the evidence that Mr Ozone gave in the earlier trial, have you? ACCUSED: Your Honour, my case I applied to the Court of Criminal Appeal but Legal Aid would not agree to fund my appeal and I have been in prison. That is the reason that that appeal has not gone and, and, and, and be dealt with by the Court of Criminal Appeal. HIS HONOUR: This trial is not going to be used as a back door method of challenging Mr Ozone's evidence which was not challenged in the District Court in 2012 and which hasn't been challenged in the Court of Criminal Appeal in the five years following. There is no merit in that application, Mr Amagwula. ACCUSED: Your Honour, it is not, it is not a back door to challenge Ozone. This person called Ozone whom I know-- HIS HONOUR: All right, I'm not prepared to hear you any further on this." (tcpt, 23 October 2017, p 17(17)-18(4))
Thereafter, the trial proceeded before the jury. In order to permit the reader to understand the submissions about, and my determination of, the second ground of appeal, it is necessary for me to set out a number of extensive extracts from the trial transcript, not only to show what passed between the trial judge and the appellant, but also to show its context and, to the extent possible by transcript, the atmosphere of the trial.
On the second day of the trial, the appellant, in effect, sought to challenge the validity of the search warrant on the basis that it was improperly obtained, and, in substance, the appellant sought to stay the proceedings. The relevant extract is as follows: "ACCUSED: What I wish to say about that your Honour is that the, the warrant be seen for what it is. And because of what the Crown proposes, that warrant then loses its role. The reason that it will not be - or the reason that the Crown says it cannot be - let it not be put before the jury, I do not understand that, because it is - that warrant that was issued because of Ozone(?). It is Ozone's way of operating and that is what has come to the warrant. So I wish to ask your Honour that on the basis of the situation of that warrant, that you not accept that warrant. HIS HONOUR: Thank you. Please take a seat. ACCUSED: I want to add something more. HIS HONOUR: Okay. I thought you'd finished. I'm sorry. ACCUSED: What I wanted to add was that because of the position of that warrant, I request that my charges be dropped. Because I cannot get a fair trial in this matter if this warrant is not - is going to be used for another purpose, but the jury would not see the very role that is plays and the very role that Ozone plays in relation to this warrant." (tcpt, 24 October 2017, p 14(46)-15(15))
In relation to the validity of the search warrant, his Honour then refused the application to stay the proceedings, finding that there was "not sufficiently clear material before the Court to conclude that there was any impropriety in the obtaining of the warrant." His Honour also found that the alleged provision of information to the police by Mr Ozone was irrelevant to the question of the validity of the warrant.
With regard to placing the terms of the search warrant before the jury, his Honour was not persuaded that there was "any legitimate forensic purpose favourable to the accused in permitting the warrant to go before the jury". Rather, his Honour accepted the Crown's concern that, despite there being no allegation against the appellant of specific drug dealing, the terms of the search warrant may cause the jury to speculate that the appellant was involved in specific dealings. Accordingly, his Honour ordered that the actual terms of the search warrant not be placed before the jury.
Shortly after, the appellant raised the asserted involvement of Mr Ozone again: "Again, coming back to Ozone, it is because of Ozone that the police went to obtain a search warrant against me. The reason that I am here is not because I was caught up in a police operation. I have been caught up in Ozone's operation. How Ozone executed his operation against me was using his involvement in a police operation. He used that and he used it to his own self-interest." (tcpt, 24 October 2017, p 15(37)-15(42))
His Honour then advised the appellant that the chances of conviction were high if he did not call evidence with regard to how the drugs came to be located in the house. Following on, his Honour invited the appellant to provide a list of witnesses with regard to whom the trial judge would consider issuing a subpoena: "You've had eight months to turn your mind to how you're going to explain to the jury what those drugs were doing in your house. It's up to you decide whether you are going to give evidence yourself, whether you will call a witness or whether you will cross-examine your wife, but I'm not holding this trial up anymore while you give consideration to that. You've already had eight months. We'll have the jury now, thank you. ACCUSED: I haven't finished. HIS HONOUR: I have finished. We'll have the jury. Resume your seat. ACCUSED: Please your Honour, I haven't finished because-- HIS HONOUR: I said you have finished. Resume your seat. ACCUSED: This is-- HIS HONOUR: Resume your seat. I will simply say this, Mr Amagwula. I take it from what you said yesterday that no subpoenas have been issued by you for any witness to attend court. If you are wishing to have any witness to attend court for the purpose of giving evidence, even though in the eight months since the matter was fixed for trial you haven't issued any subpoena, I would invite you to write out a list of names and addresses of the people you want to give evidence and to have that available for me either at 12 o'clock after the morning tea adjournment or at 2 o'clock, and I will raise with the Crown Prosecutor whether or not it is practicable at this stage for subpoenas to be issued and for those witnesses to be brought to court, because this trial will not finish this week. It may be, if that course can be pursued, it can be pursued. With that being said, the jury may come in." (tcpt, 24 October 2017, p 16(19)-16(48))
In accordance with that invitation, the trial judge later asked if the appellant had a list of witnesses whom he wished to be the subject of a subpoena to provide. The appellant did not have such a list to provide, but insisted that Mr Ozone needed to be called as a witness. The relevant extracts are as follows: "Now, Mr Amagwula, do you have a list of subpoena witnesses that you wish me to consider? ACCUSED: The, the list that - of witnesses, I have witnesses that I have in mind to call. Ozone is number 1 on that list and I need a lawyer to be able to talk to and advise me on who to call and why it is necessary, that I can explain to that lawyer. HIS HONOUR: That should have been thought about eight months ago. ACCUSED: Your Honour, I have always been thinking of it because this time-- HIS HONOUR: Mr Amagwula-- ACCUSED: --when the lawyer withdrew-- HIS HONOUR: --I've asked you, do you have a list of names and addresses of potential witnesses that you would like me to consider asking the Crown to subpoena in this trial? I take it from what you have said, that you have not prepared that list. Thank you. ACCUSED: Your Honour, I don't have a - I don't - I haven't prepared a list because I haven't had a lawyer. However, as you are asking me, Ozone would be number 1 on any list of witnesses that I will call. HIS HONOUR: I'd have to be-- ACCUSED: And that investigation about Ozone needs to be completed because I cannot be able to defend myself in any proper way unless the person-- HIS HONOUR: I've dealt with-- ACCUSED: --who is prosecuting me is present. HIS HONOUR: I dealt with that issue yesterday. I'm not going to re-agitate it again today. Ozone is not going to be called to give evidence. I'm not persuaded he has any legitimate relevance to this case on what you've told me so far. What has he got to do with the drugs in the roof of your house? ACCUSED: Your Honour, Ozone has everything to do with-- HIS HONOUR: Did he place-- ACCUSED: --what the police are saying. HIS HONOUR: Are you going to tell this jury that he placed those drugs in the roof of that house? ACCUSED: Your Honour-- HIS HONOUR: Are you? ACCUSED: --these are questions that Ozone should be able to answer. HIS HONOUR: No, no. It's your house, you live there with your wife and two children and no-one else lives there. Are you going to say to this jury, either through yourself or through your wife or some other witness, that someone other than you put those drugs in that roof? ACCUSED: Your Honour, I am innocent. I do not want to defend myself in a way where I am handcuffed here and not given any chance to defend myself in a proper way. I have evidence and I have witnesses. HIS HONOUR: All right. Thank you. I'm-- ACCUSED: Ozone is among them. HIS HONOUR: I've given you the-- ACCUSED: Can he be called? HIS HONOUR: --opportunity. Please take a seat. I'm not going to hear you anymore. I'll have the jury. I've given you that opportunity. You've rejected it. Please take a seat. ACCUSED: Your Honour, I did not reject the opportunity. HIS HONOUR: Please take a seat. You keep on arguing over rulings that I have given. I will not tolerate it again." (Tcpt, 24 October 2017, p 23(45)-25(24))
On the third day of the trial, the Crown prosecutor indicated that, as foreshadowed in the Crown's opening, the Crown intended to lead evidence that the fingerprints found on the bag containing drugs were those of the appellant, as confirmed by comparison undertaken by a fingerprint expert.
However, the Crown prosecutor further indicated that the officer who took the fingerprints of the appellant on the date of his arrest in relation to the April supply (the 2012 fingerprints), Constable Beldon, would not be available to give evidence, because the officer was overseas.
The Crown prosecutor also explained that the appellant's fingerprints had previously been on the police database, as they were taken by a Sergeant Poitevan on 8 August 2008 (the 2008 fingerprints). Accordingly, the Crown prosecutor suggested that he would not call Sergeant Poitevan if the appellant was willing to agree that his fingerprints were already on the system.
However, the trial judge insisted that the Crown be put to strict proof, and that the Crown should find out if there had been a second officer who was present when the appellant's fingerprints were taken in 2012. The following is the relevant extract: "CROWN PROSECUTOR: … Now, the last matter that I wish to raise is simply this, as I opened to the jury, it is the Crown case that four fingerprints on these plastic bags were identified as belonging to Mr Amagwula. That was undertaken by a fingerprint expert. It was the Crown's intention to say that the accused fingerprints were on the system because they were taken at the station on 4/4/2017 [sic; 4/4/2012]. Literally, that's true. That is true, they were taken. I'm not going to the circumstances as to why they were taken. They were taken as he was arrested for that previous matter of 19 January. I haven't led any evidence on the fact that he was arrested, just that he went to the police station. From that arises the problem, if Mr Amagwula wants to ask questions of the person who took the fingerprints, it's Leading Senior Constable Casey(?) Beldon and that statement has been provided. Beldon is overseas, indeed in Cuba. So the prospect of remote linkage is extremely problematic. But Mr Amagwula's fingerprints had previously been on the system because they were taken by a Sergeant Damian(?) Poitevan(?) back on 8 August 2008. I don't need to lead the date; if Mr Amagwula is happy to acquiesce that his fingerprints are on the system, I don't need to call the person who put them on the system. If he's not, I do. And it will be Poitevan and Poitevan will be available to give that evidence next week. He's actually available right now but I thought it best to - it's Mr Amagwula's choice. I mean, in an unrepresented trial, the Crown's put the strict proof on every aspect. HIS HONOUR: I think you'd better call the sergeant. CROWN PROSECUTOR: I shall. HIS HONOUR: And I'm not going to ask Mr Amagwula, I think - as you've said, Crown's put to strict proof, he's not legally represented - I'm not going to call upon him to make that decision. I think you should call a witness and lead the evidence in the appropriately non incriminating way. CROWN PROSECUTOR: I won't take a date from the witness, just at a time before 4/4/12. HIS HONOUR: Was he in fact fingerprinted on the date of his arrest, 4 April? CROWN PROSECUTOR: Yes, he was. He was by Beldon, who is the unavailable witness. I can put Beldon's statement in, if I have the consent of Mr Amagwula. If I don't, I can't. HIS HONOUR: Was any other officer present when that was done? CROWN PROSECUTOR: I'd have to reread that statement, your Honour. HIS HONOUR: I think you might. That might be the better course to see if a second officer was present on 4 April when the fingerprints were taken. CROWN PROSECUTOR: Sometimes there is and sometimes there isn't and-- HIS HONOUR: Let's double check that. CROWN PROSECUTOR: I will, that's-- HIS HONOUR: That officer could say his fingerprints were taken and then the sergeant could say that the fingerprints taken were on the system and match the plastic. CROWN PROSECUTOR: I'll make those inquiries. There's certainly time to do that. They're the matters that I needed to raise before your Honour." (tcpt, 25 October 2017, p (33)13-34(25))
Later that day, the trial judge decided that there should be a voir dire with regard to the fingerprint evidence so that his Honour could more carefully consider what to do about it (tcpt, 25 October 2017, p 37(9)-37(18)).
Several witnesses gave evidence in the trial but the appellant did not cross-examine any of them. With regard to the evidence of Detective Sergeant Landon Clarke (through whom the two CDs recording the execution of the search warrant were tendered), the appellant stated that he did not have any questions for that witness, and that "[t]his whole operation against me is contaminated by Ozone and the police… [m]ainly, Detective Ferfiris and Detective Vanderhelm." (tcpt, 25 October 2017, p 42(1)-42(10))
The Crown prosecutor than sought leave to ask further questions. The witnessed was asked whether he "put that red bag in the manhole in the roof?", and the witnessed replied, "No". The trial judge then proceeded to ask the witness the following questions: "HIS HONOUR Q. Did you see any other officer who was present at that day, place that red bag in the roof? A. No, your Honour. Q. Did you place that money in the shirt found in the bedroom? A. No, your Honour. Q. Did you see any other officer place that money in that shirt found in the bedroom? A. No, your Honour. Q. Did you place any of those mobile phones in the premises or in the car? A. No, your Honour. Q. Did you see any officer place those mobile phones in the premises or in the motor vehicle? A. No, I did not." (tcpt, 25 October 2017, p 42(43)-43(11))
The trial judge then asked the appellant if he had any further questions, and the appellant once again raised the matter of Mr Ozone and the two named police officers in the presence of the jury: "HIS HONOUR: Mr Amagwula, I gave the Crown leave to ask further evidence-in-chief and I have supplemented the Crown's questions by my own. Do you have any cross-examination of this witness in relation to the totality of his evidence-in-chief? ACCUSED: Your Honour, I have many questions but the whole case is not what is being tested here. That is the fact, your Honour, that I wish to bring before you. The actions of Ozone and the police involved in this operation are against me. Mainly Detective Ferfiris and Detective Vanderhelm, contaminated HIS HONOUR: Mr Amagwula, you have had the opportunity-- ACCUSED: --this operation. HIS HONOUR: You have had the opportunity of raising this issue in front of me before the jury was empanelled. I have made rulings. You have had the opportunity of raising these issues before the list judge last week. You have had the opportunity of raising these issues before many judges of this Court over the time in which these proceedings have been in this Court. You full well know that you should not be saying what you're now saying in front of this jury. Please resume your seat." (tcpt, 25 October 2017, p 43(18)-43(39))
Subsequently, the appellant made an application to vacate the hearing and to permanently stay the proceedings. The basis of this application was "that the whole operation against [the appellant was] contaminated by Ozone and the police involved, mainly Detective Ferfiris and Detective Vanderhelm."
The appellant elaborated as follows: "ACCUSED: Your Honour I know that these officers have roles in this matter because as far as I am concerned, this is one operation against me by Ozone and the police. And what is going on here is that Ozone wants to, or is, using the police and the police wants to, or is, using Ozone. Now, a problem has arisen along the way. The police - I can assure you, your Honour, the evidence is there that they know what happened. All of this, including this trial that I am facing, is just to give me a double wrongful conviction and make it double hard for me to go any further. Another point is that what the Crown has given to you which you have just read, her Honour's judgment, that judgment has a number of errors in it. HIS HONOUR: Have you made an appeal? ACCUSED: Yes, your Honour. I appealed but funding for that appeal was declined. What-- HIS HONOUR: There was no appeal? ACCUSED: What I have been facing is that, your Honour, as it is, as, as I still face until today, is that the goal post gets moved on me at every turn. And when I get to the next point I'm asked for something new both in my dealings with Legal Aid, in my dealings with, with this matter all along the way. So, now going forward as I said the judgment that you are reading came from - was issued because I was wrongfully convicted in that trial. And the reason that I was wrongfully convicted comes from that evidence and Ozone, and the police, and their work. Now, you would not be reading this judgment if I was not wrongfully convicted. That means that this judgment that flows from that evidence that led to my wrongful conviction and led to this judgment is now being used when it suits the Crown in this matter. However the evidence that flows from there and that flows from this whole operation against me from the beginning until 4 April 2012, that I can be able to use in my defence. Those are not allowed and those are - said, do not be part of this matter. Your Honour, I'm sorry they are. The other thing is that there is an investigation in relation to Ozone which was asked for on - in May 2015. That investigation about Ozone has not been completed. It needs to be completed because the evidence that comes after that investigation is completed will form part of my defence. Further evidence is with Immigration Department in relation to Ozone, and that flows into this matter. There is further evidence everywhere. There is a lawyer in Nigeria who is willing to conduct that investigation which has been asked for. That lawyer is now waiting for a court order so that investigation can be completed and then the evidence brought here. Going further, the actions of Ozone flows into the operation that he participated in and the actions of Detective Ferfiris and Detective Vanderhelm. I can mention them because I have evidence to show that Ozone's actions and their actions contaminated this whole operation against me, for which I make an application for the charges to be dropped, your Honour. I did not come here because I think that I have the, the, the ability to stand before you and speak. That's not why I came here. HIS HONOUR: Anything else? ACCUSED: Your Honour, I would wish that you consider what I have said-- HIS HONOUR: I have-- ACCUSED: --on the grounds of that. HIS HONOUR: I've been listening very carefully to what you have said. ACCUSED: Yes, your Honour. If you read in the judgment, you will find where the - it said in the judgment that I handed something out of my car or, or said that I was told something. I did not hand anything to anybody out of my car. The police observed it. And the evidence is there again. That's why when I talk about errors, after you have read it now, that matter is still impeding my defence, but I'm not allowed now to bring evidence of what I said now. I did not hand anything out to anybody. And these are evidence of things that this operation was going on from 2011 until April 2012. One operation that I did not know of its existence and therefore could not have done anything to, to, to, to, to fake my situation or whatever that happened, in that operation. Why can I not be allowed to bring such evidence, your Honour, including phone records? Phone records that have already been produced and is with the Crown, is with the Crown. And, and everything else, every evidence that is available, is there. It is there. This man called Ozone, all his intention is to use the police to legitimise his stay in Australia. That is all that he is doing. And then to further what he is doing in Australia. He has done it more than once, your Honour. And the police are aware of it. In the disclosure, it has not been disclosed. When he was arrested and charged, after he testified against me in 2014, that has not been disclosed. I told the lawyer that I had before, "Please inquire about that situation of Ozone. Why was he arrested again after he gave evidence against me, telling the jury that he found God in prison?" I don't know what happened. Why was he charged? So there is evidence in my defence. I only need to be allowed so that I can present it in a proper way, your Honour. That is all that I am asking. And if you are going to overrule me, I may have further appeals to make. However, based on what I have said, I am asking your Honour that because of the actions of Ozone and the police involved in this operation against me, mainly Detective Ferfiris and Detective Vanderhelm, that the charges be dropped. HIS HONOUR: Thank you. How do you spell the name of those two officers please? CROWN PROSECUTOR: We'll get them, your Honour. HIS HONOUR: Are either of those two officers, Mr Amagwula, involved in the search warrant execution that we are considering in this trial? ACCUSED: Your Honour, this is something that has been done against me. I don't know who is involved. However, I am asking that the evidence be brought so that I can point your Honour to what I am saying and how everything links together. What the Crown is doing, your Honour, is connecting the dots in prosecuting the Crown's case. I need to be given unimpeded chance to connect the dots in my defence, your Honour. HIS HONOUR: Do you have the names of those officers? CROWN PROSECUTOR: Yes, I do …" (tcpt, 25 October 2017, p 51(19)-53(30))
The Crown prosecutor then explained again the relevance of Mr Ozone to the first trial for the January supply. The Crown prosecutor also explained that, in his submission, Mr Ozone was not relevant to this trial, as the Crown had decided no longer to rely on the facts underpinning the conviction at the first trial as tendency evidence in support of the April supply.
The relevant exchange between the Crown and his Honour is as follows: "CROWN PROSECUTOR: Your Honour, I understand that Mr Amagwula things [sic; thinks] that Mr Ozone was exclusively interested in him. I can tell the Court that this investigation - and the operation name I haven't mentioned and I've scrubbed from everything - involved a lot of other people from the broader, no insult, Nigerian community of which Mr Ozone was a member. It did - Mr Amagwula is correct - commence in 2011 and then continue into 2012. Ferfiris and Vanderhelm were involved in the events - in other words, managing Ozone. Ozone - I shouldn't even mention his name. I'm going to call him Mr Ozone because I think there's been restrictive orders because of the sensitivity of the role he played and other individuals and their desire to find out where he is now. Cutting to a long story, the events of the 19th are outlined in the judgment of her Honour. That was the sum total of Mr Ozone's involvement with this accused and the person that - I think there's further involvement with the chief who is - having said all that, your Honour will see that the terms of the search warrant was interested many things but also indicia to show the surveillance footage of what Mr Amagwula was wearing on the 19th. In other words, to corroborate that Mr Amagwula was there. Neither Ferfiris or Vanderhelm were undercover operatives. The police officer who was the undercover operative had the name Bilal and I think that's in the judgment of her Honour. HIS HONOUR: Neither Ferfiris nor Vanderhelm's name appear on the witness list. CROWN PROSECUTOR: In this trial? HIS HONOUR: Mm. CROWN PROSECUTOR: No. They're not witnesses. They were not present. HIS HONOUR: Well, I think they should be required to give evidence. CROWN PROSECUTOR: All right, well I can-- HIS HONOUR: They're both here. CROWN PROSECUTOR: One's here, and the other one can be. I'm not saying he's gone overseas or anything like that. I'm not, in the slightest, suggesting that. HIS HONOUR: I think the Crown ought to make Detective Sergeant Ferfiris and Detective Senior Constable Vanderhelm available in the trial. CROWN PROSECUTOR: There's no problem in doing that. Now your Honour, this individual - once he was convicted - there was a tendency notice put on. Not by me, I didn't have carriage of it at that time. And that tendency notice dealt with his conviction in front of Judge Norton, in other words, the Ozone matter. His lawyers, on his instructions, objected to that tendency notice. Now, can I shoot forward to May 2016 when I became involved because that's when your Honour became involved also as a list judge. In the weeks leading up when I was asked to do this, I saw the tendency notice. I saw that it was tendency based on a conviction, not an admission. I saw that the Ozone trial of which Mr Amagwula speaks, went for in excess of four weeks and was, in essence, a shambles with allegations coming from this individual and the chief person, all over the shop, confusing, contorted. I withdrew the tendency notice. There's no need for tendency in this trial. This trial relates to events that occurred on the fourth - I did a Johnny Cash. I stripped it right down." (tcpt, 25 October 2017, 53(47)-55(7))
Subsequently, his Honour delivered a judgment that refused the application of the appellant, but provided a direction that the Crown call the two police officers, Detective Sergeant Ferfiris and Detective Senior Constable Vanderhelm: judgment, 25 October 2017, p 3-5.
At the end of the third day, the Crown prosecutor tendered a folder containing the fingerprint evidence as an exhibit on the voir dire.
On the fourth day of the trial, the appellant still had not cross-examined any witnesses, citing the need for legal representation and the involvement of Mr Ozone. The trial judge then indicated that if the appellant did not ask any questions in cross-examination, his Honour would do so himself: "CROWN PROSECUTOR: Now, in relation to those two witnesses, who were not present at the search, it's not my intention to put the propositions. Mr Amagwula has caused them to come and I would submit that it's his role to ask them the questions that he believes they could assist this trial in. It's not for me to pre empt his cross-examination. If your Honour is of the mind that I should, I shall. HIS HONOUR: No, no, that's not what's crossing my mind. I don't think you are required to ask those questions of those two witnesses, Mr Crown. If Mr Amagwula has no questions of them, I would ask the questions myself. CROWN PROSECUTOR: Yes, your Honour. Because it's kind of looking like I'm pulling the rug from under my own case. HIS HONOUR: Well, I don't know that it's being seen like that, but I certainly don't think you have any obligation yourself to ask those questions if you don't think it's appropriate. CROWN PROSECUTOR: I'll ask if they were present, because I know the answer to that already, is, for respective reasons, they weren't. HIS HONOUR: Yes. All right. That's the course I'll take. If Mr Amagwula doesn't wish to ask them any questions, I will ask them the broad formulated questions that have been otherwise referred to as the propositions." (tcpt, 26 October 2017, p 132(18)-132(41))
In relation to the appellant cross-examining the witnesses, the appellant asked the trial judge to "handle the situation": "ACCUSED: Yeah. Thank you, your Honour. Please, I just want to say this one thing, but there was also a number of things that I wanted to say earlier, before, I just remember this now because of the way you are asking the Crown to call the witnesses. Firstly, because of my situation, I don't have any questions to ask these witnesses. So, I ask you to answer for me when it comes to that because-- HIS HONOUR: Yes, I understand what you're saying. ACCUSED: Yeah. Yeah, so that it doesn't appear like after you have spoken, I say the same thing again. That is not what I want to do, but it's just very difficult for me to, to say anything different. HIS HONOUR: But I have to give you the opportunity of asking questions in the presence of the jury. ACCUSED: Yeah. That, that's my difficulty, your Honour. Earlier when you answered for me about the objection, I think that if you can do it in a similar way so that - because that wasn't my intention at all. I am not here to run the trial. I am forced to just be here physically. So, I wish you'd - that you'd understand that and then-- HIS HONOUR: I do understand that. ACCUSED: --handle the situation, your Honour. HIS HONOUR: I don't agree with it, but I do understand it." (tcpt, 26 October 2017, p 133(32)-134(8))
Detective Sergeant Vasilios Ferfiris gave evidence. The appellant did not cross-examine that witness, however, at the close of the evidence-in-chief, the trial judge asked the witness the following questions with regard to the putative planting of drugs: "HIS HONOUR: Mr Amagwula, do you have any questions of this officer consistent with the rulings I have previously given? ACCUSED: Your Honour, yes, there are many questions, but I'm not able to ask them now. NO CROSS-EXAMINATION HIS HONOUR: Thank you. Please take a seat. Q. You're aware by reason of your role as the officer in charge that during the execution of the search warrant on 4 April 2012 there is evidence that a red bag was found in the cavity of the roof of the premises? A. Yes, your Honour. EXHIBIT D SHOWN TO WITNESS Q. Do you recognise that as a bag which your officers told you was found in that part of the premises? A. That is correct. Q. You'd also be aware that your officers have said that within that bag there was a set of scales and a quantity of prohibited drugs? A. That's correct, your Honour. Q. Did you place that bag with those drugs in the roof of those premises? A. No. Q. Did you come to an arrangement, agreement, directly or indirectly, with any police officer to place that exhibit with those contents in the roof of those premises? A. No. Q. Do you know a man called Ozone? A. I know a person of that name. Q. Did you have any discussions with that man concerning the placing of that exhibit with its contents in the roof? A. Never. Q. Did you discuss with any police officer before the execution of the warrant of the possibility that that bag with those contents would be found in that location? A. No. Q. You would be aware from your role as officer in charge that during the course of the execution of the warrant, your officers are said to have found $1,300 in Australian currency in a male person's shirt in a wardrobe in the bedroom used by the accused? A. Yes. Q. Did you place that money in that position? A. Sorry, no your Honour. Q. Did you have a discussion leading to an arrangement, agreement or understanding with any other officer that that money would be placed in that location? A. No, your Honour. Q. Have you ever discussed with any police officer the likelihood or possibility of that money being found in that location before the warrant was executed? A. No, your Honour. Q. Have you had any discussion with the man, Ozone, about placing that amount of cash in those premises? A. No. Q. You'd also be aware that in the premises, in the bedroom, a suitcase was found which contained within it a travel bag? A. That's correct. Q. You would understand that your officers are said to have found within that internal bag 1,420 South African rand and US$6,637? A. That's correct, your Honour. Q. Did you place that money in that bag? A. No. Q. Did you come to any arrangement, understanding or agreement with any other officer for that officer to place that money in those bags? A. No, never. Q. Did you discuss with any police officer before the execution of the warrant the possibility that such moneys would be found in that bag in those premises? A. No, your Honour. Q. Have you discussed directly with the man, Ozone, the possibility of those moneys being placed in some way in those premises? A. No. Q. You would be aware, would you, by reason of your role as the officer in charge that within the bedroom, small amounts of drugs alleged to have been found in the bedside table, and in a small package in a shirt? A. I am aware. Q. Did you place any of those drugs in that bedroom? A. No, your Honour. Q. Did you arrange for any other police officer to place any of those drugs in that location? A. No, your Honour. Q. Before the execution of the warrant, did you have any discussions with any other officer about the finding of those drugs in that location? A. No. Q. Have you had any discussion with the man, Ozone, about the possibility of those particular drugs being found in those particular locations before the execution of the warrant? A. No, your Honour." (tcpt, 26 October 2017, p 135(28)-137(37))
Sergeant Mark Portelli, the independent observer of the execution of the search warrant, also gave evidence. There was no cross-examination by the appellant, and the trial judge asked Sergeant Portelli the following questions with regard to the possible planting of drugs and other items: "HIS HONOUR Q. In relation to the Australian money said to have been found on the premises, did you put that money on the premises? A. No. Q. In relation to the South African rand and the United States dollars, did you place that money in the premises? A. No. Q. In relation to the red bag in the ceiling and its contents, did you place that there? A. No. HIS HONOUR: Mr Amagwula, do you have any questions at this moment of the sergeant? ACCUSED: Yeah, your Honour, as I asked, I wish that you'd continue to answer for me. HIS HONOUR: I take it that that may be understood that there are no further questions. NO CROSS-EXAMINATION" (tcpt, 26 October 2017, p 144(46)-145(19))
Senior Constable Thomas McKinnon, the police officer who operated the video camera during the execution of the search warrant, was also called to give evidence. Towards the end of his evidence-in-chief, the Crown prosecutor asked the Senior Constable about Mr Ozone, and after being prompted by the trial judge, the Crown prosecutor also asked about the possible planting of drugs by Detective Sergeant Ferfiris and Detective Senior Constable Vanderhelm. The evidence was as follows: "Q. I'd ask you to accept some small packages were found in the bedroom and my question to you is, did you put them there? A. No, I didn't. Q. Did you see any other officer put them there? A. No, I didn't. Q. Did you hear any discussion about placing small items in plastic in the bedroom? A. No, I didn't. Q. Do you know a person by the name of Ozone? A. Ozone? Q. Ozone. A. No, I don't. CROWN PROSECUTOR: That's the evidence in-chief. No, I haven't done the other two. HIS HONOUR: Well, I was going to - yes, it's a bit better if you-- CROWN PROSECUTOR: No, your Honour can do it. HIS HONOUR: I don't want to do it. I was going only to fill in where you'd left off. CROWN PROSECUTOR: All right. Q. Do you know Detective Sergeant Bill Ferfiris? A. Yes, I do. Q. Did you know him back as at 4 April 2012? A. Yes. Q. Was he present at the execution of this search warrant? A. No, he wasn't. Q. Do you know Detective Senior Constable Nadia Vanderheld(as said)? A. Helm. Yeah, I do. Q. Did you know her back as at 4 April 2012? A. Yes, I did. Q. Was she present at the execution of this search warrant? A. No, she wasn't. Q. Have you ever had a discussion with both or one of those persons about the planting of drugs, money or any other item in Mr Amagwula's house at 11 Iluka Crescent, Riverwood? A. No, I have not. CROWN PROSECUTOR: That's the evidence in chief. HIS HONOUR: Mr Amagwula, do you have any questions of the constable consistent with the rulings I have previously given? ACCUSED: Your Honour, in that light, I wish that you continue to answer for me. HIS HONOUR: I have no questions to ask on your behalf because the Crown has put what we have been referring as "the propositions" to the witness. I don't propose to ask any further questions, or indeed any questions of this witness. Do you have any questions of this witness at this moment? ACCUSED: No, your Honour. NO CROSS-EXAMINATION" (tcpt, 26 October 2017, p 149(20)-150(37))
Detective Senior Constable Nadia Vanderhelm also gave evidence that day. The following extract contains the questions asked by the Crown prosecutor in relation to Mr Ozone and Detective Sergeant Ferfiris: "Q. Do you know a person by the name of Ozone? A. Yes. Q. Did you, alone or together with Detective Sergeant Bill Ferfiris, suggest to - well, first of all, did you yourself, alone or acting with Detective Sergeant Bill Ferfiris, put that red make-up bag in the roof cavity of that house? A. No. Q. Did you, alone or with Detective Sergeant Ferfiris, put the denominations of money, that being the Australian cash, 1,300, the South African rand being around 14 and the American dollars being around six six, into the main bedroom of that house? A. No. Q. Did you, alone or with Ferfiris, place small plastic satchels containing powder in the main bedroom of that house? A. No. Q. Did you, alone or with Ferfiris, arrange for Ozone to do that? A. No. Q. Did you ask any police officer to do that? A. No. CROWN PROSECUTOR: That's the evidence-in-chief." (tcpt, 26 October 2017, p 153(18)-153(42))
When asked by the trial judge whether the appellant had any questions for this witness, he said: "ACCUSED: Your Honour, I wish to say again that I stand by what I said in relation to Ozone and the warrant and the whole operation against me. I also stand by what I said about Detective Ferfiris and Detective Vanderhelm. However, I am not able to ask questions at this time." (tcpt, 26 October 2017, 153(41)-153(50))
The trial judge did not ask Detective Senior Constable Vanderhelm any questions.
Thereafter, the trial judge foreshadowed that the Crown prosecutor should give a final address (although the Crown case had not yet closed). The following is the relevant exchange: "CROWN PROSECUTOR: I accept that. If I was to ask your Honour to be able to address the jury - and I want Mr Amagwula to hear that, I do not have of right in a case of a self represented accused, it's a discretionary matter-- HIS HONOUR: As presently advised, I propose to grant you that right. CROWN PROSECUTOR: But I propose to limit myself to making it in the Crown's submission, not to go through a single issue and that is, "Did this man have possession?" And say, "There would seem to be no evidence that it wasn't for the purpose of supply when one looks at how it was constituted", I won't get into chapter and verse. HIS HONOUR: Let's not go down that track at this stage when the evidence is incomplete. CROWN PROSECUTOR: But there are things I need to address the jury to protect the accused. HIS HONOUR: Yes. CROWN PROSECUTOR: It's become apparent to me by reading in fine detail the log. I couldn't start just having things disappear. For instance, and I bring this to Mr Amagwula's attention, there is what's called an AFP criminal check. Now I know why that was done, because Mr Amagwula was getting himself his interpreter's licence, doesn't mean - I need to tell the jury it's specifically what the Crown relies upon in what was found in its case and it doesn't rely on other things such as a $40,000 term deposit that had been hanging around in some form since 2008. HIS HONOUR: That's why I propose, Mr Crown, to give you the right to address the jury. CROWN PROSECUTOR: And I will. HIS HONOUR: And I'm not proposing to place any a priori limitations on that. CROWN PROSECUTOR: I hear your Honour." (tcpt, 26 October 2017, p 155(37)-156(23))
On the fifth day of the trial, the issue of the fingerprint evidence was discussed again. The Crown prosecutor confirmed that Constable Beldon was unable to be called, and proposed that the statement of the Constable with regard to the taking of the 2012 fingerprints be tendered. The Crown prosecutor also stated that the only officer that could be called to give evidence in relation to the taking of the fingerprints of the appellant was Sergeant Poitevan - that is, the officer who took the 2008 fingerprints.
The trial judge was critical of the absence of Constable Beldon. His Honour took the view that, on the proposed evidence so far, there was an evidentiary gap arising from the absence of Constable Beldon. On that basis, his Honour suggested that the evidence of any fingerprints could well be excluded (tcpt, 30 October 2017, p 157(23)-160(02)) (I interpolate that such a development would obviously have significantly damaged the Crown case).
On the same day, a voir dire was held with regard to the evidence of the wife of the appellant, Mrs Amagwula. That was with regard to whether or not she should be called upon to give evidence against her husband, in accordance with s 18 of the Evidence Act 1995 (NSW). During the voir dire, the trial judge advised the appellant to give consideration to questions he may wish to ask Mrs Amagwula in cross-examination. Specifically, his Honour said: "HIS HONOUR: In the course of this trial Mr Amagwula, when the Crown case is over you will be given an opportunity of giving evidence if you wish. But also, as you've been given the opportunity before of cross-examining each of the Crown witnesses, you will be given the opportunity of cross-examining your wife. So, if you want to put evidence to the jury in the defence of your case through questions you want to ask her and the answers that you think she might give, you might want to do that when she's in the witness box. So, you might want to think about what questions you want to ask her about anything to do with this case, including the various sums of money. I'll give you some examples in the absence of the witness. IN THE ABSENCE OF THE WITNESS I've just asked your wife to wait outside Mr Amagwula because in a trial where the judge is having a discussion with the representatives about what a witness' evidence might be, it's usually a good idea for the witness to be outside so that he or she doesn't hear the discussion, so it doesn't influence what their answers might be. But what I was saying is that if you think that you could ask questions of your wife and you think her answers might provide some legitimate explanation for the presence of the Australian dollars or the United States dollars or the red bag in the roof, you might ask her those questions so that the jury can hear her answers." (tcpt, 30 October 2017, p 174(41)-175(13))
Following on, the appellant explained to the trial judge that Mrs Amagwula would be able to explain the presence of the US dollars, and referenced a "document" in the "Western Australia airport" in support. The Crown indicated that a photocopy of that document was obtained as part of the search. The trial judge told the appellant to do the following: "HIS HONOUR: Well, Mr Amagwula, we're about to break for lunch. If you think there is a document in Western Australia that might help to explain the presence of the US dollars, you might want to write out on a piece of paper the name of the airport, the type of document it is, where do you think it is, whether it's with immigration or with border security or whoever you think is responsible for this, and the Crown can make some enquiries as to whether or not that material can be produced before this trial finishes." (tcpt, 30 October 2017, p 183(31)-183(37))
The Crown was able to assist the Court and confirmed that enquiries with the Department of Immigration and Border Control (the Department) were made that confirmed that the appellant entered Western Australia through the Perth Airport in 2005, and completed a Passenger Arrival Card, declaring that he had currency of over AUD $10,000: tcpt, 30 October 2017, p 187(1)-187(18).
The trial judge then directed that the Crown to issue a short service of subpoena upon the delegated officer of the Department: tcpt, 30 October 2017, p 187(20)-187(21)
Following the evidence-in-chief of Mrs Amagwula, the appellant stated he did not have any questions. In the absence of the jury, the trial judge asked if the appellant wished his Honour to ask Mrs Amagwula about the use of the American dollars for household expenses. The appellant stated that he did wish his Honour to ask such questions, and his Honour did so despite the Crown's objection. The following is the relevant extract: "IN THE ABSENCE OF THE JURY AND WITNESS HIS HONOUR: Mr Amagwula, before lunch, you said that in relation to the American money, that your wife was aware of it, and that you drew on it to pay for household expenses, including the buying of a motor car. Do you remember saying that? ACCUSED: Yes. HIS HONOUR: Is there any reason you don't wish to ask your wife about that, because she has said to the jury, consistent with what she said on the video tape, that she knows nothing about the money, which is inconsistent with what you said before lunch. ACCUSED: Yes. HIS HONOUR: I was proposing to ask your wife about that money myself. ACCUSED: Yes. HIS HONOUR: Along the lines that you suggested. ACCUSED: Yes. HIS HONOUR: But I wondered, there may have been a reason why you withdrew and didn't ask her that question, and therefore I don't want to ask a question which may in some way embarrass your defence. So I ask you, is there some reason you haven't asked her about the use of the money for the payment of household expenses, when you said she knew about it? ACCUSED: Yeah, okay. Thank you, your Honour, I appreciate. What happened is that as I said earlier, the reason that I didn't want to ask her is my wife had told me many times that she was going to kill herself if we did not - if it wasn't for our children. And that's why I want her to give evidence, but I want her to do it when I can be there to see her and be with her and make sure that I know what she is doing and where she is, to protect her. The other thing - the other reason is that I don't know enough to ask all the questions that will get out the answers that will present my defence case in a proper way. That is, that is the other, that is the other reason. But those things that I said, if your Honour wants to take them into account and ask the questions, as you know a lot better than I do, you can ask the questions, your Honour. HIS HONOUR: You are content for me to ask her questions consistent with what you told me before lunch? ACCUSED: Yes, your Honour. HIS HONOUR: Thank you. Mr Crown, what's your attitude to-- CROWN PROSECUTOR: I don't know if I am, your Honour, because this is something that he can pinpoint with some specificity and these are not difficult questions. HIS HONOUR: No, but even so, does the Crown have any objection? CROWN PROSECUTOR: Well, I do, because the jury's going to-- HIS HONOUR: And the basis of the objection would be what? CROWN PROSECUTOR: Well, the jury's going to ponder where your Honour was seized of this information to put very specific propositions to the witness? HIS HONOUR: They'd probably make a fair inference it was from what Mr Amagwula has said in court in their absence. CROWN PROSECUTOR: I know this is circular; poses the question why can't he simply ask the questions himself? HIS HONOUR: He wishes the questions to be asked, that's the short point. CROWN PROSECUTOR: That is true and I'm-- HIS HONOUR: He wishes the questions to be asked. CROWN PROSECUTOR: I agree, and I'm not prepared to ask them, so-- HIS HONOUR: No, I don't think you should. I'll try to ask them in a neutral way. Does that suit you, Mr Amagwula? ACCUSED: Yes, your Honour. HIS HONOUR: Then I shall do that." (tcpt, 30 October 2017, 197(1)-198(2))
Before the trial judge commenced questioning Mrs Amagwula, his Honour gave the following direction to the jury explaining why a judge might question a witness in the trial of an unrepresented accused: "Ordinarily, the judge in a criminal trial doesn't ask any questions, or if any questions, they're really quite limited to either repeating something the judge didn't hear or trying to get the witness to clarify something if the judge didn't understand it, but where in a criminal trial an accused person doesn't have a lawyer, sometimes the judge asks questions not because of the usual reasons but because it might be in the interest of the accused for the questions to be asked." (tcpt, 30 October 2017, 199(5)-199(11))
The trial judge then questioned Mrs Amagwula in conformity with what his Honour had foreshadowed; that is, with regard to possible sources for the cash other than dealing in prohibited drugs.
After Mrs Amagwula gave evidence, the Crown in the absence of the jury raised the issue of the fingerprint evidence again. The Crown explained that another police officer took the appellant's fingerprints in 2009 (the 2009 fingerprints), with regard to charges of which he was ultimately acquitted.
The Crown sought to remedy the "evidentiary gap" with which the trial judge was initially concerned. The Crown prosecutor submitted that the 2009 fingerprints matched the 2008 fingerprints, and that the police officer from 2009 could identify the appellant in court as having been the person he took the fingerprints from on that earlier occasion.
However, the trial judge did not accept that the police officer could make an identification after eight years. His Honour maintained the view that the fingerprint evidence as it then was remained inadmissible, as follows: "IN THE ABSENCE OF THE JURY … CROWN PROSECUTOR: The issue is, is at the moment, I can't lead fingerprint evidence-- HIS HONOUR: That's correct. CROWN PROSECUTOR: --and that's the evidence that I've got. HIS HONOUR: What else is in the Crown case? There's the drug experts. Crown PROSECUTOR: There's the DAL people, but they were after the fingerprint people and I've got my officer-in-charge chasing around after two documents that I now understand are not the documents in question - that's my fault, I should have checked with Mr Amagwula. But that's not the main point. The main point is this. HIS HONOUR: Please take a seat, Mr Amagwula. There's one person on their feet at a time, the way we work. CROWN PROSECUTOR: It appears that my fingerprint expert has done a subsequent statement last week. Now, that's with the comparison of the Poitevan - can I call them the Poitevan fingerprints? HIS HONOUR: Yes. CROWN PROSECUTOR: But on very, very close analysis, the issue that your Honour raised this morning could be problematic. I haven't spoken to Sergeant Poitevan deliberately until I have all the evidence. The fingerprints that were submitted under his name and date and the appropriate H charges did not include a signed endorsement by Mr Amagwula, which ordinarily accompanies. Now, that's not the end of the story. HIS HONOUR: Might be close to it. CROWN PROSECUTOR: No, it's not. There's another chapter. Please hear my final chapter. HIS HONOUR: Well, keep reading. CROWN PROSECUTOR: So, that's Poitevan in 208(as said). In 209(as said), an officer also arrested Mr Amagwula, but I put this on the record straight away, the charges for which he was arrested, he was acquitted. But this time, this officer was from the drug squad, and my understanding, did things more completely and so my fingerprint expert is currently going to storage to get those 209 prints. He's not on statement because he hasn't been contacted until this morning. HIS HONOUR: Well, I'm not going to allow it. CROWN PROSECUTOR: Please, your Honour, it's critical evidence. HIS HONOUR: Well, it's critical evidence; this aspect of the Crown case should have been properly prepared." (tcpt, 30 October 2017, 202(1)-203(6))
On the sixth day of the trial, the Crown prosecutor tendered on the voir dire a statement of Detective Senior Constable Luke Stibbard, the police officer who took the 2009 fingerprints. The Crown also tendered on the voir dire a report of the fingerprint expert that compared the 2009 fingerprints and the fingerprints found on the bag.
Before proceeding to hear evidence from Detective Senior Constable Stibbard on the voir dire, the trial judge gave the following explanation to the appellant: "HIS HONOUR: ... What the Crown is trying to do at the moment, Mr Amagwula - just wait a minute please - is this. When you were arrested on 4 April 2012 in connection with the charges before the jury at the moment, your fingerprints were taken by Constable Beldon, and the Crown case is that the fingerprints taken on your arrest match the fingerprints found on the plastic bags which were found in the red case in the ceiling of your house. That material was served on you as part of the Crown case some time ago, and therefore you have known as you've approached the trial that there was, as part of the Crown case, fingerprint evidence connecting you, it would seem, with the drugs found in the roof of your home. The Crown opened its case to the jury on the basis that there was fingerprint evidence of the kind I have just stated. Nothing was said by the Crown before that opening that there was any problem in relation to the fingerprint evidence, from which I would infer the Crown was unaware that there was any problem with the fingerprint evidence. Last Thursday I think it was - it might have been Wednesday, but I suspect Thursday - the Crown informed the Court that the police officer who took your fingerprints on 4 April 2012 would not be available to give evidence. No explanation has ever been given to the Court as to why that is so. It was in those circumstances that that white folder was given to me marked "Voir dire exhibit 1." A copy was given to you last Thursday. Over the weekend, I had an opportunity of reading that material and as you've probably gathered from what has been said in court yesterday, because Beldon was not coming to give evidence, I would not allow his statement to be given to the jury. In the voir dire exhibit 1 there was also a purported comparison undertaken by a fingerprint expert, Ms Gordon, who said that by looking at the fingerprints taken by Beldon and the fingerprints found on the plastic bags, she said that they were one and the same and they were yours. Yesterday I told the Crown that because Beldon wasn't coming to prove the fingerprints, that comparison could not be given to the jury. In voir dire exhibit 1, the Crown had a fallback position. The Crown suggested, or indicated, it wished to put to the jury some fingerprints allegedly taken by Sergeant Poitevan of you in 2008. Those fingerprints were problematic, and I indicated to the Crown that I would not let that evidence go before the jury, not least because there was a procedural irregularity concerning the taking of those fingerprints, namely you never signed them as being yours. Therefore I would not allow that evidence to go to the jury, nor would I allow any comparison which Ms Gordon might subsequently make of those fingerprints with those on the plastic bag. So the point was reached yesterday where on the voir dire material - and a voir dire is simply an exercise in the absence of the jury where the judge decides whether or not evidence can go before the jury, that's all a voir dire is - so the point was reached yesterday where on the material then available to me, there would be no fingerprint evidence in this case going before this jury - notwithstanding the Crown had opened on it - and I was intending to give the jury a direction to completely ignore that aspect of the Crown's opening. Overnight, the Crown has sought to reconstruct its fingerprint evidence case against you. What the Crown has now done is to get some fingerprints that were taken from you in 2009 when you were arrested in relation to other drug charges at or about Croydon Park. You were taken from Albert Street, Croydon Park, back to a police station, and the statement of Luke Stibbard, which you and I have been given this morning, of 17 September 2009, at paragraph 23 the police officer gives evidence that he took your fingerprints and that you signed the appropriate form. Unfortunately the police officer in his statement does not attach a copy of the fingerprints or the form you allegedly signed. Those fingerprints and your signature, however, do appear behind the second document that you and I have been given this morning, that is that statement from Ms Fitzroy. She is being offered as a witness in substitution, it would seem, for Ms Gordon. CROWN PROSECUTOR: No, they're one and the same, she's married in the interim. HIS HONOUR: Thank you. Ms Fitzroy is now going to, the Crown says, give evidence of a comparison between the fingerprints found on the plastic bag in the roof of your house with the fingerprints taken not by Constable Beldon when you were arrested in 2012, but by Constable Stibbard when you were arrested in 2009. What is now going to happen is that the Crown is going to call, in the absence of the jury, Senior Constable Stibbard to seek to prove that what is attached to Ms Fitzroy's statement is the fingerprints referred to in paragraph 23 of his statement. The effect of the evidence, if it is admitted, would be to the same effect as if Constable Beldon had been here, that is in substance, nothing new is being advanced again you, the Crown says. I will give you an opportunity after the evidence of Constable Stibbard to address me as to whether or not there is any prejudice that you can see to the variation in the Crown's case by putting, instead of putting before the jury the fingerprints taken of you in 2012 with the fingerprints taken from you in 2009. In that regard Mr Amagwula, I would wish to be satisfied by the Crown that if they led evidence from Constable Stibbard, and that's part of the purpose of the voir dire, I will want to know the context in which it is sought to be told to the jury that your fingerprints were taken in 2009. If I see any prejudice to you in the circumstances in which the 2009 fingerprints were obtained, the evidence will not be admitted. You'll have an opportunity over the next few minutes to think about what I've said, whilst Constable Stibbard is brought into court. The purpose of this exercise is first of all to address that evidentiary gap, but also, Mr Crown, I want to hear what it is you intend to ask this witness as if the jury were here. Because as I say, if I get a whiff of prejudice, the evidence will be out." (tcpt, 31 October 2017, p 212(4)-213(46))
The appellant objected to the admission of fingerprint evidence, and said the following: "ACCUSED: Yes your Honour, what I have to say is that what the Crown is saying - excuse me - this - me being charged in 2012 and the officer who took the fingerprints, the, the Court hasn't been told why that officer cannot be able to give evidence and what that could have to do with the, the, the case itself as it is. And also, the things that happened, the Crown has tried to bring in my fingerprint that was taken in 2008. That did not work, and then the Crown now goes to 2009 to try to bring in something that happened in 2009. None of those has anything to, to do with this matter. So I think that if what the Crown is saying is that these things happened in 2012, the Crown should be able to prove its case based on the 2012, instead of connecting me or connecting things that happened in 2009 that has nothing to do with this, whereas this in itself, the problems that it could have, which also is this fingerprint of 2012 and the person who took it and why or why they are not here, might have something to do with it. So I would like your Honour to make the finding that the Crown should establish its case based on 2012 and not anything else." (tcpt, 31 October 2017, p 224(20)-224(34))
The trial judge nonetheless eventually ruled that the fingerprint evidence was admissible, and it was ultimately placed before the jury in the way foreshadowed; that is, with regard to the April supply of 2012, the jury came to know that the appellant had had his fingerprints taken on an entirely separate occasion, some years before in 2009.
On the seventh day of the trial, the trial judge gave the following direction to the jury in relation to the fingerprint evidence: "HIS HONOUR: Just before that happens, members of the jury - pardon me for just one moment. Members of the jury, earlier in the trial you were shown a video of a search warrant being executed at the premises of Mr Amagwula. And at that time I gave you a direction that you were not to speculate as to why it was that that search warrant was being executed at that time. I want to give you another similar sort of direction about non-speculation now. You are not to speculate as to why it was in 2009 that fingerprints were taken of Mr Amagwula. Fingerprints can often be taken in investigations which do not result in any matters coming before the Court. They can be taken in relation to matters which are investigated, which go to a court, and which there are findings of not guilty. They can also be taken by the police for a range of purposes not connected with criminal investigations, for example some forms of government employment. So you must not speculate as to why it was that Mr Amagwula's prints were taken by police in 2009. We'll have the witness now, thank you." (tcpt, 1 November 2017, p 302(36)-303(1))
Detective Senior Constable Vanderhelm was re-called, and at the end of the evidence-in-chief, the appellant made a reference to Mr Ozone as he had done before: "ACCUSED: Your Honour I have no questions consistent with your rulings, however I stand by what I said in relation to Ozone, Detective Ferfiris and Detective Vanderhelm." (tcpt, 1 November 2017, p 310(50)-311(2))
At the close of the Crown case, the trial judge asked the appellant whether he was proposing to give evidence in his own case. He confirmed that he would not: "ACCUSED: Your Honour, I have witnesses and I have evidence to present. However, because of the situation in which I find myself, those witnesses are not able to be brought forward by me and the evidence, I'm not able to bring them forward, also because of the same situation. And the evidence - so, I don't know what to do about that your Honour. I, I will need to get a lawyer's advice. But based on your Honour's ruling, there is nothing that I can do. HIS HONOUR: You told me that you are not calling any witnesses. Are you yourself going into the witness box? Bearing in mind that you have a right of silence and that the jury could not hold it against you if you exercise the right of silence which you and every person in this courtroom has in connection with any criminal trial. But if you do go into the witness box, as I've explained to you before, the Crown Prosecutor would have an opportunity of asking you questions. Do you wish to give evidence to this jury? ACCUSED: Because I'm not legally represented, I wish to not give evidence at this stage. NO CASE FOR ACCUSED" (tcpt, 1 November 2017, p 315(41)-316(9))
Shortly after that, the trial judge said the following to the appellant in relation to his closing address: "But if you're going to address the jury tomorrow Mr Amagwula, you might want to concentrate on what the questions are that the jury has to consider. If you've got anything to say to them as to whether the evidence which they have heard goes to those questions, you can say that tomorrow. But one thing you cannot do tomorrow is to make a statement which constitutes evidence. That moment has passed. I'll give you some latitude as to what you say tomorrow but strictly speaking, what you can only say to the jury is whether the Crown's case has been proved and you can do that by concentrating on the questions that are set out in MFI 5, the jury question trail." (tcpt, 1 November 2017, 320(25)-320(33))
Before the appellant gave his closing address, the trial judge gave the following direction to the jury, directing them to disregard any "evidence" the appellant may give from the Bar table: "The first address is always given by the Crown Prosecutor. When he has finished his address, Mr Amagwula will have an opportunity, if he wishes, to address you. That is not evidence. If he says something to you in the course of this trial after the Crown Prosecutor has spoken from the bar table where he is currently seated, whatever he says to you is not evidence. He cannot use that as an opportunity as a substitute for not giving evidence. What I imagine, if he does address you, he might address you as to whether or not the evidence given proves the Crown case against him." (tcpt, 1 November 2017, 316(14)-316(21))
The Crown prosecutor gave his final address. The following is an extract from the final address, with the portions that form one of the particulars of the second ground of appeal in bold: "So, ladies and gentlemen, when it comes to the issue of possession, the Crown says that there is an overwhelming conclusion, and the only rational conclusion short of going off with the fairies, that the person who possessed this item with those prohibited drugs in there was the accused. As I said, the onus shifts. This is one of the rarities in the criminal law. I won't get into the philosophy of it; it does not matter. The law is once you are satisfied that a person possessed a prohibited drug, in this case each of the four above 3 grams, the onus shifts to them to call evidence or to point to evidence in the Crown case to say, "Well, look, if you look at that rationally it's more likely than not that I didn't have it to supply". There is no such evidence in this case. It does not exist, and whilst I'm on that point another fundamental in a criminal trial is lots of questions can be asked and in this case lots of questions were asked, particularly of each of the officers who were in attendance at the search and, indeed, the officers that had overview of that matter, that is, Ferfiris and - I always get that last bit wrong; please don't - Vanderhelm - I'll get it right. Those questions posed interesting propositions of potential fabrication of evidence, of a conspiracy theory, but the questions are not the evidence. It's the answers that are the evidence in this trial, and in relation to each of those propositions put to those various witnesses they were rejected, "No, that did not happen". "No, I did not put an item here". "No, I did not see anyone else do it". "No, there were not other people running around in the background who weren't filmed", et cetera, et cetera, et cetera. So there is no evidence at all of any fabrication. There is no evidence at all of any diabolical conspiracy. If, as again in a fit of fantasy, you want to look at it, come back to reality and look at Detective Sergeant Laverdure's conclusion in his expert statement. The big three - he's left out methorphan or whatever it is - he's given an evaluation of the methylamphetamine, the cocaine and the heroin. Let's just take it at wholesale, although there's scales and other substances. Let's just take it at wholesale, 260,000to 355,000 worth of product in that little bag, that's a lot of money to go to set up an innocent person, ladies and gentlemen, an awful lot of money. The Crown says, indeed, the deeming provision applies and it has not been met but, moreover, there is some pretty good evidence that the person that possessed that bag, and we say that's the accused, had it for the purpose of supply. Number 1, the electronic scales disguised as a CD - what do you need those for - the sheer magnitude, the amount, of the drugs, the value of the drugs, the fact that heroin and cocaine were found in small amounts in the bedroom occupied by the accused independent of what's in that red bag and, indeed, that sedative, alprazolam or whatever it is, also found in the bedroom, three of the five substances in the bag are found in the bedroom in minute amounts. How can that be? Is that just an uncanny coincidence or part of a Mossad style setup to, as it were, layer the false evidence? How were the fingerprint found on the bags, plural? Again, one is only left to ponder but, when one looks at things in the cold hard light of day, the cash - the cash is there in significant amounts - significant amounts. You'll remember one of the officers looks at his wallet, that is, Mr Amagwula's wallet, and sees there's $260. Again, so what? " (tcpt, 2 November 2017, p 4(9)-5(14))
The appellant then gave his closing address. In a nutshell he asserted the following: the appellant was innocent; Mr Ozone was involved with Detective Ferfiris and Detective Vanderhelm in framing the appellant; the Crown was withholding evidence from the jury; the fingerprint evidence was unreliable, especially because the Crown did not present the fingerprint evidence from 2012; the appellant was not able to properly prepare the defence case because he did not have a lawyer; and the seized cash from the appellant's house was legally obtained and was for family expenses.
Immediately after the appellant concluded his final address, the trial judge reiterated that the jury were to disregard any assertions made by the appellant unsupported by evidence: "After the morning tea adjournment I will give you some general directions which will include a direction that you are to disregard so much of the address as was made to you today by Mr Amagwula which constituted assertions of fact not proved by any witness in the witness box." (tcpt, 2 November 2017, 12(1)-12(5))
On the eighth day of the trial, the trial judge provided the jury with his summing-up. During it, his Honour directed the jury to arrive at verdicts strictly on the evidence that was before them. A further direction was given to ignore assertions made by the appellant throughout the trial that did not constitute evidence, including the assertion that Mr Ozone was a police informer.
The relevant extract is as follows: "You are going to make your decision, members of the jury, on the evidence which was given in this trial: that means the answers to questions which witnesses gave, and the physical objects which have become exhibits - all of which will be with you in the jury room. If you want a transcript of the oral evidence, if you send me a note from your representative, three copies of the evidence will be sent in to you. But you must not speculate about issues or matters which were not the subject of evidence. For example, you must not speculate, as you were invited to by Mr Amagwula, as to whether or not he was the subject of fingerprinting in 2012. You must not speculate that, if he were the subject of fingerprinting in 2012, why the person who took the prints is not here. That is quite impermissible, and to the extent that Mr Amagwula made statements in his address to you today, with one exception which I will almost immediately come to, you will disregard those alleged assertions of fact because they were not given to you as evidence on oath from the witness box. For example, he has asserted that the man, Ozone, is a police informer. There is no evidence of that assertion; you will disregard it. He asserted that there was phone recorded evidence withheld by the Crown. There is no evidence of that fact; you will disregard it. They are just two examples but you will yourselves know that there were other assertions which he made which he himself did not tell you from the witness box and which was not the subject of any question, let alone an answer, by any witness called in the Crown case. The one exception to that is Mr Amagwula's assertion from the bar table today that, when he came to Australia (his wife told you it was five or six years before the search warrant), he had brought in excess of AUD$10,000 (or the equivalent thereof) into the country. The Crown concedes that fact. The Crown, in your absence during the morning tea adjournment, quite properly informed me that it had been an oversight on his part not to make that concession to you. That does not mean the Crown is conceding that any of the money found in the house was part of whatever it was that was brought in in excess of AUD$10,000 five to six years before 2012. So you must not speculate about what witnesses who were not called might have said or why they were not called." (Summing-up, 2 November 2017, p 5-6)
The trial judge also directed the jury to give consideration to the submissions made by the appellant that the police officers and Mr Ozone were involved in a conspiracy against the appellant. The trial judge said: "As part of your determination, you will need to give consideration to the reliability of the witnesses who gave evidence before you here in Court. In this regard you will not ignore that part of Mr Amagwula's address to you today in which he made a very clear, unambiguous assertion. He asserted that this case against him is a conspiracy by police officers and a man called Ozone. You may think that that assertion may have been made by Mr Amagwula earlier in this trial in your absence and that that explains why "the propositions", as I have been referring to them, were put to each of the officers who participated in the execution of the search warrant those propositions being: "Did you put the drugs in the roof?" "Did you see any other officer put the drugs in the roof?" "Did you put the money in the bedroom?" "Did you see any other officer do it?" "Did you put the sachets of drugs in the bedroom?" "Did you see any other officer do it?" "Have you had any discussion with other officers associated with the case to do that or to know that that was going to be there?" "Do you know the man, Ozone?" They are "the propositions" that were put to each of the officers associated with that search warrant. And they were put by me because of things that Mr Amagwula had told me. It was in fairness to him and fairness to those witnesses that the propositions be put to them. He says to you, in effect, through his submissions today that the answers that those officers gave were lies. You will need to take that into account. It is not something that you would sweep aside. You would give consideration to that. You would look at the totality of the evidence to see if there is anything in the evidence that caused you to doubt the accuracy of the answers that each and every one of them gave on oath to you." (Summing-up, 2 November 2017, p 8-9)
Following on, the trial judge also directed the jury to take into account the criticisms by the appellant of the fingerprint evidence: The Crown also relies on the fact that within the bag were a number of plastic bags which contained Mr Amagwula's fingerprints. Mr Amagwula says that he has been "framed" in that respect as well. He has not precisely identified how that might have happened. That does not mean you should discount it. As a matter of common experience it may be, if he is right, that a police officer obtained his prints on a plastic bag in some other way and put the drugs in it and put it in the roof - but that was not put to any police officer that that is what they did. Mr Amagwula has made criticism of the fingerprint evidence and you will need to carefully look at that evidence because he complains about it. You will disregard his submission concerning what may or may not have happened in 2012 regarding fingerprints. You will look carefully at the evidence of Mrs Fitzroy to see how she says she compared two sets of prints, a set of prints taken in 2009 with prints found allegedly on the grey plastic bags in the red bag. You will take Mr Amagwula's criticisms into account and you will look carefully at what her evidence is. (Summing-up, 2 November 2017, p 17)
The jury then retired to consider its verdicts and later that day returned verdicts of guilty on all four counts.

Grounds of appeal

In support of the application for leave to appeal against conviction, the following grounds were notified and pressed at the hearing: Ground 1: The trial was a nullity as the appellant was not properly arraigned. Ground 2: There was a miscarriage of justice arising from:

the appellant proving unable to conduct his defence as a result of being unrepresented;
the refusal to arrange for Mr Ozone to attend court to be examined and cross-examined;
the introduction into evidence of fingerprints and photographs taken whilst the appellant was in police custody for a prior matter, suggesting prior bad character;
the content of the Crown Prosecutor's summing up [sic];
the remarks of the trial judge toward the appellant, and about his closing address.

Ground 1: The trial was a nullity as the appellant was not properly arraigned.

Submissions of the appellant

In written submissions on behalf of the appellant, it was simply said that statute (in the form of ss 154 and 155 of the Criminal Procedure Act 1986 (NSW) (CPA), understood in the light of the common law) is to the effect that, when arraigned at the commencement of a trial by jury, the plea of not guilty must come personally from the accused. Those sections are as follows: 154 Plea of "not guilty" If an accused person arraigned on an indictment pleads "not guilty", the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly. 155 Refusal to plead If an accused person who is arraigned stands mute, or will not answer directly to the indictment, the court may order a plea of "not guilty" to be entered on behalf of the accused person, and the plea so entered has the same effect as if the accused person had actually pleaded "not guilty".
It was said that the procedure adopted here - whereby, as I have shown, the trial judge simply "entered" pleas of not guilty on behalf of the appellant, without permitting him to plead himself to the indictment - was without power, unless the accused had failed to answer properly to the counts. Here, however, the appellant was given no chance to answer to the counts at all.
As for any proposition of the Crown that the appellant had been validly arraigned months beforehand in February 2017, before Judge Culver, it was said that the operative arraignment was that which occurred in the presence of the jury panel. Whether things had been done correctly months beforehand, in the absence of the jury, and by way of an arraignment on a different indictment, was said to be neither here nor there.
It was accepted by senior counsel that this question in one sense "goes only to the technicalities of the trial". It was also accepted that there can be no doubt but that the appellant did indeed wish to plead not guilty and contest the charges. Still and all, it was said that an essential precondition to the exercise of jurisdiction by the District Court of New South Wales - a court the jurisdiction of which does not go beyond that conferred by statute - meant that the entirety of the trial was a nullity.
Reference was made to the well-known decisions of R v Halmi (2005) 62 NSWLR 262; [2005] NSWCCA 2 and R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 for the general proposition that, in criminal proceedings, so-called "technicalities" can nevertheless be important; in particular, they can be important with regard to the question of the valid initiation of criminal proceedings. It was said that the refusal by this Court to countenance what were otherwise unimpeachable proceedings in those two decisions on the basis of a defect in the indictment - whereby a person not authorised to sign it had done so - argues by analogy for nullification in this case.
Reference was also made to the judgment of Kirby P in R v Birlut (1995) NSWLR 1 at 5 for the general proposition that there are sound policy reasons why insistence on observance of formalities in criminal proceedings should be maintained.
Finally, it was said that decisions of other jurisdictions pertaining to other statutes dealing with different criminal procedures may be of little assistance: here, the CPA speaks clearly and unmistakably of what is required in order to validly commence a criminal trial by jury in New South Wales.
In oral submissions, and in resistance to a submission by the Crown prosecutor, the point was developed that, in truth, the indictment upon which the appellant was arraigned at the commencement of the trial was not identical to the indictment upon which he had been arraigned before Judge Culver: not only was it not the same physical document, but also the spelling of the particular of one of the prohibited drugs had been altered.
It was said that R v Halmi is authority for the proposition that the focus must be upon the presentation of the particular indictment, and the arraignment of the accused upon it, which commences the trial, not any earlier interlocutory process.
It was said that, if there were to be some reliance on the previous indictment, that could not be called in aid by the Crown here, because leave had never been sought pursuant to s 20 of the CPA to amend it, or to substitute it by a further indictment.
In oral submissions the point was embraced that, without a properly conducted arraignment in accordance with the CPA at the commencement of a trial by jury, the District Court simply has no jurisdiction to embark upon such a trial.
Finally on this ground, it was accepted that one can readily think of answers by an accused person to an arraignment that are not strictly responsive by way of being "guilty" or "not guilty", and that would nevertheless not deprive the District Court of jurisdiction. But I understood the point to be that s 155 of the CPA covers such a situation. And in any event, the point was made that such analogues are not apposite here: in this case, in the presence of the jury, the appellant was simply not permitted by the trial judge to respond to the arraignment at all.
In oral submissions in reply, senior counsel made it clear that his primary submission is that, in the absence of the appellant having been given an opportunity to answer orally at the arraignment at the commencement of his trial, the District Court lacked jurisdiction to conduct it, and that trial should be quashed as a nullity. In the alternative, if what occurred here could somehow be characterised as amendment of, or substitution for, a previous operative indictment (propositions that were of course resisted), the way that occurred was so defective as to amount to a miscarriage of justice.

Crown submissions regarding this ground

In written submissions, the Crown focused upon the arraignment that had occurred months before the arrival of the jury panel, on 6 February 2017. It was said that, in truth, "the trial proceedings had commenced" on that date. It was said that the seeming spelling error committed in February 2017 did not invalidate that indictment, and could be cured in any event by s 16 of the CPA.
It was said that the appellant had been "correctly arraigned on the February indictment", and that the District Court had thereby been seized with jurisdiction from that point on to conduct his trial.
In short, the Crown placed a great deal of weight on the asserted ameliorative fact that the appellant had been validly arraigned months before the commencement of the trial, albeit on an indictment that was physically a separate document, and textually different.
As for what actually occurred on 23 October 2017, whereby pleas of not guilty were merely "entered", it was accepted that it was "attended by procedural irregularity". Having said that, various cases were referred to in support of the proposition that it was of little moment, and certainly would not lead one to characterise the subsequent trial as a nullity.
The procedural history of R v Halmi was relied upon by the Crown in an effort to distinguish that case, on the basis that in that matter, although a number of indictments had been presented, the accused had in fact only been arraigned on the admittedly defective one.
The written submissions of the Crown concluded with the proposition that here there was not the slightest prejudice to the accused; nor any question but that he was insisting that he was not guilty; nor any lack of clarity about the counts upon which he was to be put on trial. It was said that, having been arraigned months beforehand, there was no "statutory or other requirement for the appellant to be re-arraigned in the presence of the jury". The proposition that the admitted procedural irregularity must lead to nullification was rejected.
In oral submissions, the point was emphasised that there had been a valid arraignment of the appellant upon an indictment months before the procedural irregularity occurred. It was said that it was at that stage that the appellant had "put himself on the country for trial", and that those "trial proceedings" were never "discontinued".
It was also said that the alteration in the spelling of the name of one of the prohibited drugs averred - whether one characterised that process as an amendment or a substitution for the purposes of s 20 of the CPA - was in truth unnecessary. After all, the name of the drug is merely a particular, and its misspelling would lead to "effectively no consequences".
The point was also made that, if in truth the process that took place before the jury panel was not a valid one, then it could hardly be said that one indictment had been substituted for the other, with the result that the indictment of February 2017 remained "operative".
It was said that the fact that the "physical document", a copy of which was provided to the jury, was not quite the same as the document upon which the appellant had been arraigned in February 2017 constitutes a procedural irregularity, but does not nullify the trial.
As for the point made for the appellant that his pleas should have come from his own mouth, it was said that, if that were a procedural irregularity, the previous arraignment would "fix it". In truth, it was said, what occurred at the commencement of the trial was "really a re-arraignment and it was unnecessary, in terms of seizing the court with jurisdiction".
Finally, various decisions of various courts were pointed to for the proposition that various procedural irregularities in criminal trials, including with regard to arraignment, do not render a trial a nullity.

Determination of Ground 1

The first step towards resolution of this ground is identification of the effectual arraignment, of which any procedural criticisms are able to be made. I say that because of the submission of the Crown that any asserted defect in the arraignment before the jury panel can be "cured" by consideration of the arraignment that occurred eight months before that time.
It is certainly the case that, over the past 30 years or so, a system of "pre-trial arraignment" has developed by way of statute and practice note in the superior courts of New South Wales. That was done for at least three reasons: to ensure that the trial court has jurisdiction for the purpose of making binding case management orders; to ensure that pre-trial voir dires and other legal determinations are well-founded; and, as a matter of practicality, to ensure that matters committed for trial from the Local Court did not administratively "fade into obscurity".
It is also true that, for some purposes at least, pre-trial arraignments are to be equated with the arraignment of the accused in the presence of the jury panel: see generally R v Nicolaidis (1994) 33 NSWLR 364.
Still and all, in my opinion the "true" arraignment whereby the accused puts himself or herself "on the country" (to use the archaic phrase that continues to appear in s 154 of the CPA), and thereby exercises his or her right to trial by jury, is the one that occurs in the presence of the jury panel. To give but one example, were it otherwise, an accused person who was arraigned months before the date on which the trial is proposed to commence could complain that he or she is not having his or her right to that mode of trial immediately respected. In similar vein, it would be absurd to suggest that an accused person who has pleaded not guilty at a pre-trial arraignment is thereby estopped from subsequently electing for trial by judge alone before he or she is arraigned at the true commencement of the trial.
In short, I consider that the process of pre-trial arraignment that occurs in the District and Supreme Courts of New South Wales undoubtedly serves to seize those courts with jurisdiction. But those arraignments cannot be thought of as substitutes for the requirement that, at the commencement of a trial by jury, an accused person is to be arraigned in the presence of the jury panel upon the indictment upon which the jury will be asked to return its verdict.
Quite apart from that, I believe that the analysis of this Court in R v Halmi, especially at [51] and [52], maintains the primacy of the indictment upon which an accused person is actually arraigned, with due formality, in the presence and hearing of the jury panel. After all, that is the indictment that is the centrepiece of the commencement of the proceedings before the judges of the facts; it is the indictment by reference to which the verdict is returned at the end of the trial; and it is the indictment that, once endorsed by a trial judge, itself becomes the record of arraignment, empanelment, verdict, conviction, and sentence.
And in my opinion, the analysis in R v Halmi is not dependent upon the procedural attributes of the prior indictments upon which the Crown relied in that appeal, in the sense of whether there had been leave granted for substitution, whether the appellant had been arraigned upon one or more of them, and so forth. To the contrary, it is based upon the simple primacy of the indictment upon which an accused person is arraigned in the presence of the citizens who will become his or her judges as to the facts.
It follows that, in my opinion, if there was a procedural failing in the arraignment in the presence of the jury panel, it cannot be cured for all purposes by a prior pre-trial arraignment, even if that earlier exercise was procedurally perfect. And that is quite apart from the undeniable facts that the earlier indictment was not the same document as the one upon which the trial proceeded, and indeed was textually not quite identical.
It also follows that I respectfully reject much of what was said by the Crown in this Court in resistance to ground one.
In short, the first step in my reasoning is that the focus of consideration with regard to this ground must be the second arraignment that occurred on the morning of 23 October 2017, that occurred in the presence of the jury panel, in response to which the appellant said nothing, and at which the trial judge simply entered pleas of not guilty, and provided an explanation for doing so to the jury panel.
The second step towards resolution is to identify what was actually occurring procedurally when an indictment that was not the same as the one that was before Judge Culver was presented at that latter arraignment.
It will be recalled from my conspectus above that, after the conclusion of the trial of the severed count, an indictment containing the four remaining counts was presented on 6 February 2017, which spoke wrongly of "Methorpan". The appellant was arraigned in an orthodox and unexceptionable way on that indictment before Judge Culver.
Subsequently, on 23 October 2017, a separate indictment (by that I mean, a different piece of paper) was presented that contained the same four counts, but spoke of "Methorphan". As I have shown, that indictment was used to arraign the accused in the absence, and thereafter in the presence, of the jury panel on the date upon which the trial commenced.
Section 20 of the CPA is as follows: (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.
It is noteworthy that that section did not exist in the CPA as originally made in 1986. It was inserted on 18 April 2001 by the Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001 (NSW), by which time the procedure of pre-trial arraignment had well and truly commenced, and was originally in the following form and location: 63A Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecuting authority: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 64. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.
In my opinion, what occurred here cannot be characterised as the amendment of an indictment. In my experience, that has always been understood as being a notation (often initialled by the Crown prosecutor or the trial judge or both) to the actual piece of paper, presented by a prosecutor, averring counts against a named accused person, that has been placed on the court file, whether the accused has been arraigned on it or not, and whether any such arraignment has occurred in the presence of a jury panel or not.
In my opinion, what occurred here must be thought of as a substitution of one indictment for another (that is, substitution of the prior indictment first presented on 6 February 2017, with the indictment presented on 23 October 2017, and upon which the appellant was ultimately arraigned before the jury panel).
On that analysis, it was incumbent on the Crown by statute to be granted leave before that process occurred. And it is true that, with respect, neither the Crown prosecutor nor the trial judge adverted to that necessity.
But in my opinion, that slip cannot be relevant to the disposition of this appeal: all that was being corrected was a trivial spelling error; after all, if it had been detected after the trial had commenced, it inevitably would have been the subject of amendment of its particular, as opposed to a successful application for a verdict by direction. And it is inconceivable that the trial judge would not have granted the necessary leave, if asked to do so at any stage.
In short, the second step in my reasoning is that what occurred here was a substitution of an earlier indictment with a subsequent one; there should have been an application for a grant of leave with regard to it; but that procedural slip takes the ground no further.
The third step is to determine whether what occurred here was indeed at the least a procedural irregularity.
As for that, senior counsel for the appellant is correct: since time immemorial, the practice in New South Wales and England and Wales has been that, at the commencement of a trial by jury on indictment, the plea of not guilty (or guilty) must come personally from the mouth of the accused. The following secondary sources support that proposition (I shall turn to the primary sources in the form of decisions of superior courts shortly).
LexisNexis Butterworths, Criminal Practice & Procedure NSW, vol 1 (at service 126) [7.150] states that the accused is required to plead to the indictment personally. If the accused remains mute, the court may enter a plea of not guilty. Further, the accused is to be put on trial on the indictment upon which he or she was arraigned.
Similarly, Watson, Blackmore and Hosking in Criminal Law New South Wales at [154.20] state that the defendant must plead personally, and that the plea cannot be made through his or her counsel. The authors note the exceptions if the accused is "deaf or dumb or insane or refusing to plead".
In Halsbury's Laws of England, vol 27, at [373], it was recently said that "[t]he defendant must enter a plea himself; it is not sufficient for his counsel to do so on his behalf, or to indicate that the defendant wishes to plead guilty" (footnote omitted).
It has also been recently said in Halsbury, vol 27, at [354] that "[i]f he stands mute of malice, or will not answer directly to the indictment, the court may order a plea of not guilty to be entered on his behalf, and he must then be treated as having pleaded not guilty." (footnotes omitted).
In Sir Stephen Mitchell QC, Archbold: Criminal Pleading, Evidence & Practice (67th ed, 2019, Sweet & Maxwell) at [4-167] it was said, "except in a few special cases (e.g. where the defendant is a deaf mute, or refuses to plead) the initial arraignment must be conducted between the clerk of the court and the defendant. The defendant must plead personally - the plea cannot be made through counsel or any other person on his behalf".
Leaving the present state of affairs in England and Wales and New South Wales, almost 140 years ago Sir James Stephen wrote with regard to the former jurisdiction: "the history of indictments is a branch of the history of the law of special pleading. It would extend this work beyond all limits if I were to attempt to enter upon the subject at length. It is enough to say that in all common cases the pleadings in a criminal trial have always consisted, and still consist, of an indictment engrossed on parchment, and a plea given by the accused person orally in open court, of guilty or not guilty" (Emphasis added) (Sir James Fitzjames Stephen, A History of the Criminal Law of England (1883, Macmillan and Co) at vol 1, 275.)
Later in the same work, when discussing pleas available to an accused person, the author spoke of the procedure whereby the accused was called upon himself or herself to enter the plea. In similar vein, Sir James Stephen went on to discuss the process of peine forte et dure or pressing, which (in my opinion) itself constitutes a demonstration of the extreme importance placed upon a plea being entered from the mouth of the accused in earlier times.
Of course, by the time Sir James Stephen was writing in the late 19th century, an accused person in England could be represented by counsel with regard to trials on indictment of treason, felony and misdemeanour. And yet the emphasis on an oral plea from the accused personally remained.
Finally, in William Blackstone, Commentaries on the Laws of England (2016, Oxford University Press) at chapters 25 and 26, the whole discussion of the process of arraignment proceeds on the assumption that it is the accused himself or herself who will enter the plea (having said that, at chapter 27, the author spoke of the "settled rule at common law" as it was then that, although the Crown could be represented by counsel at trial of any capital crime, the accused could not be, except to argue a point of law).
In short, the third step in my reasoning is that what occurred here was prima facie a procedural irregularity, at the least. That is because secondary sources show that, over centuries, a trial on indictment in England and Wales and New South Wales has commenced by way of a plea of not guilty from the mouth of the accused, except in most unusual circumstances. As can be seen, one such circumstance is when the accused person insists on "standing mute". Another circumstance is when the accused will not answer sensibly or with reasonable directness to the indictment. Indeed, I proceed on the inference that, since trial by jury was introduced in New South Wales in the 1830s, an oral answer to an arraignment has always been the orthodox commencement of trial by jury.
The fourth step is to consider whether the procedure adopted here could be said to fall within the exception; by that I mean, could it be said that things had reached a point at which it could be predicted that the appellant would not answer to the indictment appropriately? After all, it was conceded by senior counsel before us that, over a period of well over five years, the appellant had markedly failed to engage constructively with the criminal justice system. And it is also noteworthy that, seemingly minutes before the arraignment in the presence of the jury panel, the trial judge and the appellant had been "talking over each other".
In my opinion, it is quite possible that the trial judge adopted this most unusual procedure of "entering pleas on behalf" of the appellant for fear that the accused would answer non-responsively in the presence of the jury panel, perhaps thereby derailing the trial by jury before it had even commenced.
I respectfully think that that may well be the case. But to be weighed against that is the fact that, according to the transcript, the unrepresented appellant was given no chance at all to plead in the presence of the jury panel. And if he had answered non-responsively, it would not have been a difficult thing for the trial judge to instruct the jury panel to disregard his non-responsive words completely.
In short, the fourth step is my opinion that, although the procedure adopted may have been for understandable abundant caution, I am respectfully of the view that it was not appropriate. It could not be said to fall within the exceptions to be found in s 155 of the CPA.
It follows that the concession of the Crown before us that a procedural irregularity occurred by way of the appellant not being permitted to respond to the indictment personally in the presence of the jury panel is soundly based.
The fifth step in my reasoning is to consider whether the procedure adopted deprived the District Court of jurisdiction, and thereby rendered the trial a nullity. Again, I consider that the approach to the question in other jurisdictions is illuminative; in other words, I respectfully reject the proposition of senior counsel for the appellant that nothing is to be gained from looking at judgments of other jurisdictions that have considered this question or similar questions. I discuss those judgments in broad chronological order.
In R v Heyes [1950] 2 All ER 587, the accused was arraigned on counts of stealing and receiving, and entered pleas of not guilty. After the opening of prosecuting counsel, he indicated through recently appointed defence counsel that he wished to change his plea to guilty. Although no note was made of it, it was subsequently agreed that the plea had indeed come from his own mouth. The presiding Recorder wrongly believed that no verdict needed to be taken from the jury. Ultimately, the accused was convicted and sentenced.
On appeal, the English Court of Criminal Appeal remarked at 588 that "the shorthand note of the proceedings does not indicate that the appellant himself was asked to plead. It merely contains a statement that his counsel said that he wished to plead Guilty. That is not enough. A prisoner must himself plead. … [O]nce a prisoner is in charge of a jury he can only be either convicted or discharged by the verdict of the jury."
A little later it was said with regard to the failure of the jury to return a verdict at 588: "the trial was a nullity, and we could set aside the proceedings and order a re-trial or venire de novo." In the event, the court exercised its discretion not to do so.
This case is supportive of two propositions: first, that, once an accused person is in the charge of the jury, absent statutory modification such as s 157 of the CPA, the jury itself must return a verdict; and, secondly, that any plea on indictment, whether it be guilty or not guilty, must come from the mouth of the accused.
In R v Boyle [1954] 2 QB 292 an indictment containing a number of counts had been read to the appellant "as a whole". He pleaded guilty seemingly globally, and was convicted and sentenced to imprisonment. The appeal to the English Court of Criminal Appeal focused on whether in truth one of his convictions was sound, based as it was on "constructive breaking". After finding that it was indeed sound, the Court went on disapprove the process of pleas being entered to indictments "globally", or as a whole. The Court said at 296: "The court desires to say that in its opinion the right practice is that when the indictment contains more than one count, each count should be put to the prisoner separately, and he should be asked to plead to each particular count. It should be remembered that every count in an indictment is equivalent to a separate indictment; the prisoner can be tried on one or all of the counts. The verdicts have to be taken separately, and the right practice is that he should be asked to plead to each count as each count is read to him."
This case is supportive of the proposition that the pleas to each count on a multi-count indictment must not only come from the mouth of the accused, but also must be an answer to each individual count.
In R v Ellis (1973) 57 Cr App Rep 571, the appellant had been arraigned by the Clerk of the Court on a count of burglary. When asked whether he pleaded guilty or not guilty, his counsel intervened, and himself indicated that the plea was guilty, but accompanied by a dispute about quantum. What appears to have been proceedings on sentence with regard to the disputed facts concluded with the facts being found in the favour of the appellant. He was convicted and sentenced to imprisonment.
On appeal it was submitted that the appellant "was never tried at all and that neither conviction nor sentence" could stand.
After referring to Heyes, the English Court of Appeal in its Criminal Division referred to the unreported case of Tasamulug (29 April 1971), in which the same Court was untroubled by an alteration of plea from not guilty to guilty during the course of a trial, despite the fact that it did not come from the mouth of the accused himself. Having said that, in that decision it had been said that "[i]t is an almost universal and very salutary rule that a plea of Guilty should not be accepted except from the mouth of the accused…".
To the contrary of that statement, in R v Ellis it was said at 574: "But we take the view that those words do not impinge upon the rule that before a criminal trial by judge and jury can be properly launched there must generally be an arraignment of the accused of the offence charged and he must personally answer to it, and that this cannot be done through counsel or any other person on his behalf."
It was also said that the rule is a "salutary one", not least because there can be no dispute as to whether or not a plea entered by counsel is the result of misunderstanding or crossed wire with his or her client.
Later it was said that it "is an invariable requirement that the initial arraignment must be conducted between the Clerk of the Court and the accused person himself or herself directly". It was also confirmed that, if the indictment contains more than one count, there must be a plea that responds to each of them individually.
Reference was also made in R v Ellis to the unreported decision of Young and Young (8 June 1967), in which husband and wife were arraigned on joint charges of stealing, to which both pleaded not guilty. When the trial proper commenced at a later stage, the husband was provided with a copy of the indictment, and said "Guilty to all the stealing charges". The wife was not arraigned again, and it was wrongly assumed that her husband had spoken for the both of them.
Unsurprisingly, the English Court of Appeal held in Young and Young that: "[t]hese questions of pleas must be dealt with formally. It was never put to her and she out of her own mouth never pleaded Guilty. The only plea that remained on the record was the plea of Not Guilty… In those circumstances she has never been tried… And the proper course in the opinion of this Court is in her case to quash the conviction."
In the event, in the appeal of R v Ellis the conviction was set aside, and the matter stood over for further trial.
This case is an example of judicial emphasis upon the plea coming from the mouth of the accused personally, even in the case of a plea of guilty, and even in a case in which there is no suggestion of a crossed wire.
In R v Williams (Roy) (1977) 64 Cr App Rep 106; [1978] QB 373, the accused entered the dock and was (in effect) called for trial in a way familiar to criminal procedure in New South Wales. Before he could be arraigned, both counsel spoke of the trial needing to be adjourned. It was adjourned, and the Court record was endorsed to that effect, along with "Plea N.G." In truth, no such plea had been formally taken.
On the next occasion, the accused was again called for trial. The trial judge and both counsel then appearing had not been present on the previous occasion, and were unaware that the accused had not been previously arraigned.
In light of the wrongful notation on the court file, he was never arraigned. The jury was empanelled, sworn, and the accused was placed in its charge. In a way familiar to us, that charge spoke of the accused having been arraigned, of him having pleaded not guilty to the count, and of the jury being called upon to determine his guilt or otherwise.
The trial concluded with a verdict of guilty, conviction, and imprisonment.
On appeal, the English Court of Appeal gave short shrift to an argument that the conviction should be quashed on the basis that the accused had never been arraigned, and therefore the proceedings were a nullity.
The authorities that spoke of the rigours of the necessary formalities in the context of a plea of guilty - especially after an initial plea of not guilty - were distinguished. Indeed it was said that "no qualification of or deviation from the rule that a plea of guilty must come from him who acknowledges guilt is thus permissible".
In contrast, however, it was said that "it does not seem to this Court, at any rate at the present day [1976], that the same fundamental objection exists where a plea of not guilty is precariously offered or tacitly conveyed. It is difficult to conceive what possible prejudice to an accused person could derive from such a procedure."
The Court went on to contrast the modern position with that spoken of by Stephen in 1883: at 379.
In short, the Court concluded that there had probably been a "pre-trial irregularity". Still and all, it was said that "the proceedings … had all the elements of a duly constituted trial by jury and followed in all particulars the course of such a trial. … There was a mutual assumption between Crown and the defendant that the prosecution were put to proof of their accusation so that a trial of the issues was necessary."
In the event, what had occurred was characterised as "unfortunate and regrettable, [but] it did not, in the peculiar circumstances of this case, have the result of vitiating the trial as such", with the outcome that the appeal was dismissed.
This English case is suggestive of a modern movement away from the formalistic emphasis on the need for a plea at the commencement of a trial on indictment to come from the mouth of the accused, so long as there is no suggestion of a miscarriage of justice having occurred.
In R v Kepple [2007] EWCA Crim 1339, the accused was charged with unlawful wounding after an altercation at a hotel. He was arraigned pre-trial and pleaded not guilty. On the morning of the trial sometime later, Crown counsel informed defence counsel that he proposed to add a count of wounding with intent. The accused was present at court, and his counsel informed him that the prosecution would apply to amend the indictment. Shortly after that, the accused and his witnesses disappeared.
An application by the prosecution for trial on indictment of the accused in his absence - alien to our way of thinking in New South Wales - was granted. His solicitor and counsel continued to represent him. The indictment was amended to include the more serious count. More than once during the trial, defence counsel sought unsuccessfully to have the jury discharged, on the basis that the accused had not been arraigned on the new count. In the event, the jury returned a verdict of guilty on that count, the accused was subsequently arrested, and he was sentenced to imprisonment (and for his breach of bail).
The English Court of Appeal in its Criminal Division allowed the appeal and ordered a retrial, but on grounds unrelated to this aspect.
After reviewing some of the authorities to which I have referred, the Court held that "the Appellant waived his right to an arraignment under the count in respect of the offence under s 18, [that is, the count upon which he had never been arraigned at any stage], just as he had waived his rights in respect of his attendance at the trial."
Again, I think that this English decision must be understood as an example of the movement away from formalism, admittedly in the context of a procedure for trial by jury in the absence of the accused that is almost completely alien to us.
In Caruso v R [2012] VSCA 138, the appellant was convicted of the murder of his wife in the Supreme Court of Victoria. He had been arraigned before a jury panel, and pleaded not guilty to one count of murder. After the trial judge excused a number of potential jurors, an insufficient number of them remained for a jury of 12 to be confidently empanelled. The panel was supplemented by way of further potential jurors being brought into the courtroom. The appellant was never arraigned before that latter group of potential jurors. Nor were those further potential jurors provided with the various particulars of the indictment, such as the name of the alleged deceased, the date of the alleged offence, and so forth.
The Victorian Court of Appeal was untroubled by what had occurred, noting that the accused had suffered no unfairness from the fact that some members of the jury panel were not present when he had pleaded not guilty, and that no request had been made that he be re-arraigned in the presence of the further potential jurors. The Court said that "we did not think that there was any benefit to be derived by the accused uttering two words before the jury panel."
Separately, the decision of the English Court of Appeal in R v Williams (Roy) was noted, and emphasis given to the passage in which it had been said: "Insistence on an express plea of not guilty by the defendant himself is no longer a necessary safeguard of justice where that is the intended plea, and where the ensuing proceedings are precisely what they would have been if the accused himself had made the plea in plain terms.
Again, this decision is an example in our own country of a movement away from formalism.
Turning now to decisions of this Court, in Kamm v R [2007] NSWCCA 201, the appellant had been arraigned at the commencement of a trial by jury on a sexual offence that did not in fact exist at the time of its alleged commission. Once that was discovered, over objection of his then-counsel he was re-arraigned on a count pleaded in accordance with the correct offence-creating provision, and personally pleaded not guilty in the presence of the trial jury. He was not, however, formally put in charge of the jury with regard to that new count.
On appeal, senior counsel for the appellant accepted that the defective count was amenable to amendment pursuant to ss 20 to 22 of the CPA (I interpolate that, with the utmost respect, I am not convinced that the concept of amendment of a count on an indictment in a trial that is already underway is so broad as to permit substitution for it by a different offence brought pursuant to a different offence-creating provision, but nothing turns on my uncertainty). It was also conceded that, in truth, re-arraignment on the "amended" count was not really necessary. The nub of the appeal was the return of a verdict of guilty on that count, despite the fact that the appellant had not been put in the charge of the jury with regard to it.
This Court (Hodgson JA, with the agreement of Simpson J as her Honour was then, and Grove J) was untroubled by the absence of that formality with regard to the "amended" count. Hodgson JA said that "[e]ven if there had been a procedural irregularity in this case, it would in my opinion have been immaterial. However, for the reasons I have given, I do not consider there was any irregularity." (Citation omitted.)
In my opinion, this case must be understood generally as another example of the modern movement, this time within our own jurisdiction, away from formalism with regard to indictments and arraignments and counts being put in the charge of the jury.
In R v Halmi, as I have said, a trial that was conducted upon an indictment that had been signed by counsel not authorised to do so was held to be a nullity. But as I have also said, I do not regard that decision as an expression of formalism; quite the contrary.
In similar vein, in R v Janceski, it was discovered that an indictment had been signed by a person who was not, in truth, authorised by statute to do so. Although the trial betrayed no other failing, the conviction was quashed and a new trial ordered. A five judge bench of this Court engaged in an extensive consideration of the question of statutory construction, pursuant to the seminal decision in Project Blue Sky In v Australian Broadcasting Authority 194 CLR 355; [1998] HCA 28 of whether Parliament had intended that failure to comply with the strictures of the statute would result in invalidity, and determined that it had indeed so intended.
Finally, turning to decisions of single judges, in Fell v Chenhall [2018] NSWSC 1574, I recently discussed the question of whether a failing in the initiation of criminal proceedings (in that context, with regard to a wholly summary offence prosecuted in the Local Court) rendered the proceedings a nullity, with the result that any subsequently commenced proceedings would be captured by the well-known statute of limitations pertaining to wholly summary offences.
I emphasised the movement away from excessive formalism effected here and in England and Wales by a series of statutory amendments in the 19th and 20th centuries. I concluded that the failing in that case - commencing proceedings in the "wrong" Registry of the Local Court without the necessary leave - did not lead to invalidation. A stay of the substantive proceedings in order to permit an interlocutory appeal against my decision was refused: Fell v Chenhall [2018] NSWCA 260.
I draw from the preceding conspectus of judgments of England and Wales, Victoria, and New South Wales the following. There certainly was a procedural irregularity here. But I do not believe that it denied the District Court jurisdiction to hear the matter. Nor do I believe that it constituted a miscarriage of justice. I say that for the following reasons.
First, even in its strictest form, the orthodox procedure admits of pleas of not guilty being entered without that plea coming from the mouth of the accused; for example, when the accused wilfully stands mute.
In similar vein, if an accused refuses to plead to a count entirely "correctly" - for example, perhaps by pleading "I am innocent" - it is impossible to accept that the rigidity of the formalities of arraignment mean that the subsequent trial must be a nullity. Senior counsel for the appellant did not suggest otherwise.
Both of those aspects show that, even at its highest, the requirement of an oral plea of "not guilty" to commence validly a trial by jury is not absolute.
Thirdly, the movement over the past few centuries has been away from procedural formalism in criminal law, and towards a focus on matters of substance.
Fourthly, that is not just the result of statutory reform (of which examples such as s 16 remain collected in our CPA as at today). It can also be discerned from the movement in the tide of judicial approach over the years in the cases that I have summarised above: away from ritualism and towards questions of substance and justice.
Fifthly, here there can be no question of the pleas of not guilty being the result of a crossed wire between the appellant and the trial judge. To the contrary: over the preceding 5 ½ years, the appellant had made it clear to countless judges that he was insisting that he was not guilty.
Sixthly and finally, the analysis in R v Halmi and R v Janceski was very much a question of whether the failing identified there was, as a matter of statutory interpretation, to be understood as so grave as to lead to invalidation. But, in my opinion, that failing is readily to be distinguished from this: in those cases, the simple fact is that a person had exercised the legally and socially significant powers of a Crown prosecutor who was not, in truth, entitled to do so.
In other words, in my respectful opinion, the decisions in R v Janceski and R v Halmi are not examples of emphasis on empty formality by the criminal justice system; rather, they are a vindication of important choices that had been made by Parliament about empowerment of some persons as opposed to others within that system.
In short, in my opinion what occurred here was contrary to long established practice, and was a procedural irregularity. But it did not deprive the District Court of jurisdiction to conduct the trial that followed it. Nor can it be characterised as a miscarriage of justice, in light of the fact that it was clear that the appellant would never admit his guilt of these counts, and in light of the fact that the procedure adopted occasioned no prejudice to the appellant.
It follows that I would not uphold ground one.

Ground 2: There was a miscarriage of justice arising from:

the appellant proving unable to conduct his defence as a result of being unrepresented;
the refusal to arrange for Mr Ozone to attend court to be examined and cross-examined;
the introduction into evidence of fingerprints and photographs taken whilst the appellant was in police custody for a prior matter, suggesting prior bad character;
the content of the Crown Prosecutor's summing up;
the remarks of the trial judge toward the appellant, and about his closing address.

Submissions of the appellant regarding this ground

In written submissions, senior counsel for the appellant conceded that the appellant came to be self-represented as a result of his own choices. However, it was emphasised that this Court should not focus on such choices - in the sense of ascribing blame - in determining whether there was a miscarriage of justice.
Senior counsel referred to various cases that emphasise the imperatively "heavier burden" upon trial judges to ensure the fairness of the proceedings when the accused is not legally represented: for example, MacPherson v R (1981) 147 CLR 512 at 546. Senior counsel submitted that the relevant question is whether, on the whole, there was a miscarriage of justice, not whether the accused is to blame for it: see Frawley (1993) 69 A Crim R 208 at 212.
Turning to specific aspects of the trial, senior counsel for the appellant delineated four distinct matters that either individually, or collectively, gave rise to a miscarriage of justice. Failure to call Mr Ozone
The first matter senior counsel relied on was the failure to call Mr Ozone to give evidence in the trial. The appellant had told the trial judge that Mr Ozone had "everything" to do with the drugs - however, to repeat, his Honour ruled that Mr Ozone should not be called: "Ozone is not going to be called to give evidence. I'm not persuaded he has any legitimate relevance to this case on what you've told me so far." (tcpt, 24 October 2017, p 24(31)-24(33))
Senior counsel submitted that the allegations against the police witnesses that the appellant sought to make would have required substantial skill and tact (even for experienced defence counsel). Absent legal representation, the appellant was not in a position to do so, which was exacerbated by the refusal of the trial judge to have Mr Ozone called.
As a result, therefore, the appellant repeatedly told the trial judge (even in the presence of the jury) that without the assistance of a lawyer, he felt he could not effectively cross-examine any witnesses. As a result, the trial judge himself put the allegations of corruption to the police witnesses.
As exemplified above, the police witnesses simply denied the allegations. In addition, the trial judge directed the jury not to speculate about matters upon which there was no evidence before them.
It was submitted that, in these circumstances and absent cross-examination of the person alleged by the appellant to be responsible for the drugs, the appellant could not, in a practical manner, establish a reasonable doubt with regard to the Crown case.
It was contended that, instead, the trial judge should have ensured the attendance of Mr Ozone at the trial so that the hypothesis that Mr Ozone was responsible for the drugs could be properly put before the jury.
Senior counsel for the appellant contingently argued that what should have happened was this: as soon as it became clear that a fair trial could not be conducted, the trial judge should have discharged the jury and set a new trial date. That would have allowed the appellant to obtain legal representation, or at least the opportunity to subpoena Mr Ozone.
In oral submissions, senior counsel responded to a Crown submission that it would be difficult to determine that the absence of Mr Ozone played a role in a miscarriage of justice when it is not clear what evidence Mr Ozone would have given.
Senior counsel for the appellant contended that the appellant made "abundantly clear" during the trial that Mr Ozone was "responsible" for the drugs in the ceiling cavity.
Senior counsel further submitted that Mr Ozone was not simply "plucked out of thin air" by the appellant - Mr Ozone was initially charged with regard to the January supply, but seemingly later became a registered source. Senior counsel conceded that it was not clear whether Mr Ozone was actually called as a prosecution witness in the trial for the January supply. Nonetheless, it was submitted that, as a registered source, Mr Ozone might reasonably be considered to be criminally involved in some way.
Secondly, in response to the Crown submission that the appellant did not place any evidence before this Court concerning the evidence that Mr Ozone could have potentially given, senior counsel submitted it was not worthwhile to obtain an affidavit from Mr Ozone, due to the realistic expectation that Mr Ozone would not co-operate with the legal team of the appellant.
Thirdly, senior counsel submitted that the appellant had wanted Mr Ozone to be called in the prosecution case, and that the submission concerning Mr Ozone boiled down to the failure of the Crown prosecutor, or the trial judge, or both, to call Mr Ozone - such failure constituting a miscarriage of justice.
Senior counsel reiterated that Mr Ozone's status as a registered source in the January supply trial meant inevitably that he would have been called, but for the severance of the counts relating to the April supply.
It was submitted that, if the appellant had been legally represented, defence counsel would have readily made an application to have Mr Ozone called in the prosecution case, and it would in all likelihood have been facilitated.
Senior counsel contended that it is instructive that the trial judge was at first not satisfied with the Crown prosecutor refusing to call Mr Ozone, and that the trial judge invited the appellant to provide a list of people to be subpoenaed - that was said to show that the trial judge had formed a view that there was some substance in what the appellant was seeking.
Fourthly, senior counsel conceded that the appellant's references to Mr Ozone were "many and oblique", and that this Court should "infer" from the context of the references that their "net effect" was that Mr Ozone was responsible for the drugs in the ceiling cavity.
In oral submissions in reply, senior counsel responded to the Crown's oral submission that calling Mr Ozone would have been a "forensic disaster". Senior counsel posited that such "forensic disaster" was within the prerogative of the appellant to create, and that in any event there was substance in the appellant's insistence that Mr Ozone be called. Fingerprints from 2009
In written submissions, the second matter raised by senior counsel was the ruling by the trial judge that the taking of the 2009 fingerprints be admitted into evidence.
The decision of the trial judge to admit the 2009 fingerprints was a result of his Honour's rejection of evidence of the 2012 fingerprints. Senior counsel for the appellant recounted that the trial judge considered that the Crown must be put to strict proof against an unrepresented accused. Senior counsel accepted that that was not unusual, but noted that his Honour did not require such stringency for proof of the "weights" and "quantities" of the drugs (tcpt, 1 November 2017, 319(48)).
Senior counsel conceded that the trial judge was minded to ensure fairness to the appellant, and on that basis, did not allow evidence of any fingerprints to be admitted if the police officer who took them was not available to be cross-examined. The police officer who took the 2009 fingerprints was available to give evidence. Nevertheless, it was submitted that the ruling by the trial judge required the Crown to rely on the 2009 fingerprints resulted in a miscarriage of justice.
Senior counsel provided three reasons for that: first, the 2009 fingerprints tended to prove "bad character" by suggesting that the appellant had, in the past, been of interest to the police; secondly, significant attention was given to the issue of the fingerprints, (the evidence took up one day of a relatively short trial); and lastly, the direction given by the trial judge to the jury that they should not speculate about the origin of the 2009 fingerprints only served to highlight the issue, and to reinforce the inevitable prejudice against the appellant.
In oral submissions, senior counsel did not go beyond a summary of the points made in the written submissions. The closing address of the Crown prosecutor
In written submissions, senior counsel for the appellant contended that the Crown prosecutor made a number of remarks that exceeded the boundaries of appropriate conduct for prosecutors.
Senior counsel explained that the direction given by the trial judge to the Crown prosecutor that he should deliver a final address was not being impugned - rather, it was the Crown prosecutor's comments to the effect that the defence case was so lacking that it was "going off with the fairies", indulging in "diabolical conspiracy" theories, and would involve accepting a "Mossad-style" operation that was the subject of complaint.
Senior counsel contended that, whilst the Crown prosecutor had the right to present the Crown case firmly, the Crown prosecutor instead transgressed the second, fifth, and eighth principles outlined by this Court in Hughes v R (2015) 93 NSWLR 474: "Secondly, a Crown prosecutor should never use language designed or calculated to inflame the jury: see Livermore v The Queen [2006] NSWCCA 334; 67 NSWLR 659 at [24]. … Fifthly, on the other hand, the Crown prosecutor must not belittle or ridicule either an accused person, or his or her evidence, or his or her case: see Livermore at [31]. … Eighthly, speaking generally, no advocate in criminal or civil proceedings should place his or her personal opinion before the tribunal of fact or law, because it is irrelevant: see KNP v R [2006] NSWCCA 213 at [53] (McClellan CJ at CL, with whom James and Hall JJ agreed); R v Liristis [2004] NSWCCA 287 at [95] (Kirby J, with whom Studdert J and Hislop JJ agreed); and Rugari at [60]."
In oral submissions, senior counsel said that, as there was in truth no evidence adduced by the appellant relating to "conspiracies", it was not appropriate for the Crown prosecutor to refer to the appellant's theories of "conspiracies" in his final address.
More generally, senior counsel impugned the content of the final address of the Crown prosecutor insofar as it was belittling and included statements bordering on insults.
It was also contended that in accordance with Libke v R (2007) 230 CLR 559; [2007] HCA 30 it was inappropriate for the Crown prosecutor to express his "personal opinions", such as that the appellant was "off with the fairies" and that he was alleging "Mossad style setups". The remarks of the trial judge throughout the trial and in the directions to the jury
With regard to this factor, senior counsel accepted that the trial judge faced a difficult task in dealing with an unrepresented accused who repeatedly asserted that he could not have a fair trial, and who repeatedly sought an adjournment of the trial in the face of an adverse ruling.
However, senior counsel contended that the appellant should not have been held to the same standards as counsel, and that the trial judge should not have rebuked the appellant, at least not in the presence of the jury.
Senior counsel relied upon the following remarks of the trial judge throughout the trial: "If you do it again, I will, in front of the jury, answer those allegations. The answers will not be helpful to you" (tcpt, 25 October 2017, p 61(4)-61(5)) "For present purposes, I'm not going to be lured into that trap by you" (tcpt, 25 October 2017, 77(49)) "HIS HONOUR: Mr Amagwula, consistent with my earlier rulings, do you have any questions at this moment of this witness? ACCUSED: Your Honour, I need to get legal advice and to instruct a lawyer to represent me. HIS HONOUR: The question I asked you I will repeat, and you have just crossed the threshold. I gave you a warning earlier this morning about what would happen if you said again what you have said. I'll ask you one more time before I tell the jury what I said I would tell them if you did that again. I will ask the question again. Do you have any questions at this moment for Detective Senior Constable Sharma?" (tcpt, 26 October 2017, 131(11)-131(22))
Senior counsel contended that these remarks would have raised in the minds of the jury suspicion of a "nefarious intent" on the part of the appellant, or that something negative about the appellant was being hidden from the jury.
Senior counsel argued that, as a matter of fairness, the trial judge should have firmly warned the appellant in the absence of the jury. It was said that the effect of these rebukes in their presence belittled the appellant, made him appear untrustworthy, and rendered the defence case of the appellant ineffective.
In relation to the directions of the trial judge, senior counsel stated that the trial judge did not clearly delineate the boundaries of what the appellant could and could not say in his closing address (the relevant extract is at [182] of this judgment) - with the predictable result that the appellant overstepped the permissible boundaries, attracting disapprobation from the trial judge in the subsequent directions to the jury.
Senior counsel then submitted that on at least four separate occasions, the trial judge directed the jury to disregard matters the appellant raised from the Bar table.
In particular, senior counsel referred to the directions before the appellant gave his closing address and immediately after, as extracted above at [183], [186] and [188].
Since the police witnesses were questioned (albeit by the trial judge) as to whether they had been complicit with Mr Ozone in putting the drugs in the roof, senior counsel contended that the appellant could have dealt with this issue in his closing address. It was further submitted that the appellant had the right to have the jury consider this hypothesis, but that the directions of the trial judge denied him that right.
In oral submissions, senior counsel acknowledged that no mala fides on the part of the trial judge was being alleged in this Court. It was conceded that the trial judge was entitled to interrupt the appellant when he repeatedly raised matters not in evidence, but the manner and form of the words used by the trial judge were impugned.

Submissions of the Crown regarding Ground 2

In written submissions, by way of introduction, the Crown submitted that in order for the appellant to succeed on this ground, the Court needed to be satisfied that there was some "material irregularity" that affected the outcome of the trial.
The Crown contended that the case against the appellant at trial was "extremely strong, if not overwhelming". However, even by the time of the appeal, the appellant had not proffered any evidence that would have supported the putative defence case at trial.
In relation to the particular matters relied upon by the appellant, the Crown responded as follows. Mr Ozone
It was said that at no point in the trial was the appellant able or willing to tell the trial judge what evidence could actually have been adduced by calling Mr Ozone, or what questions the appellant wished to ask Mr Ozone. The Crown submitted that the assertions by the appellant concerning Mr Ozone were general allegations that Mr Ozone was "framing" the appellant.
The Crown then drew attention to the fact that the trial judge asked the appellant to provide a list of people to be subpoenaed, and in response the appellant requested that Mr Ozone be called. The trial judge refused, on the orthodox basis that Mr Ozone did not have "any legitimate relevance to the case".
The Crown emphasised that even by the time of this appeal, by which time the appellant was content to be represented by senior counsel, the appellant still had not put forward any evidence as to what the testimony of this allegedly crucial witness would have been.
It was also said that the earlier conviction of the appellant was based upon the evidence of Mr Ozone, and therefore the failure to have him give evidence before the jury may have been forensically advantageous to the appellant.
In oral submissions, it was said that, in truth, during the trial the appellant had never clearly stated the legitimate forensic purpose upon which he relied for having Mr Ozone give evidence. In particular, he never bluntly asserted that it was Mr Ozone who was responsible for the prohibited drugs that were found in the roof cavity of the home of the appellant.
Furthermore, in the absence of any evidence from any source even at the time of the appeal, many months after the trial, it would not be possible for this Court to conclude that the refusal of the trial judge to issue a subpoena for his attendance plays any role in the establishment of a miscarriage of justice.
And if, as one might infer, the true intention of the appellant at trial was to "re-litigate" the question of his guilt of the January supply, in the proof of which Mr Ozone had indeed played a part, that would have been nothing more than a "forensic disaster" for the appellant.
Finally, even accepting that the alternative course of bringing Mr Ozone to court and at least hearing what he might have had to say on the voir dire could have been open to the trial judge, it was submitted that the failure to adopt that course could not be said to constitute a miscarriage of justice. Fingerprints from 2009
The Crown submitted that the evidence of the 2009 fingerprints was not evidence of bad character, because there was no evidence of a prior arrest. Further, whilst the voir dire on the fingerprint evidence did take up considerable time, the evidence before the jury did not take up a disproportionate amount of time, especially considering its critical role in the Crown case.
Further, the jury was appropriately directed not to speculate as to the origins of the 2009 fingerprints, and it must be assumed that juries follow the directions of the trial judge about such matters (reference was made to Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13]; and Dupas v The Queen (2010) 241 CLR 237 at [27]-[29]).
In oral submissions, it was said that the evidence of the previous taking of the fingerprints was not that the appellant had been arrested or placed in custody, but simply that his fingerprints had been taken by the police, for whatever reason.
Having said that, the Crown prosecutor did not wish to be heard against the proposition, with regard to the mode of proof ultimately adopted, that "the cure was worse than the asserted disease".
It was said, however, that the direction given by his Honour about the whole topic was sufficient, and that one is entitled to infer that, except in unusual circumstances, juries follow the directions of trial judges to the effect that they should not impermissibly reason in a prejudicial way. The closing address of the Crown prosecutor
The Crown conceded that expressions such as "Mossad-style" and "going off with the fairies" were "unnecessary".
The Crown noted that the appellant had alleged in his final address that Mr Ozone, and Detectives Vanderhelm and Ferfiris were "behind all of this" and that the Crown was withholding phone records. In these circumstances, it was appropriate for the Crown prosecutor to invite the jury to reject the proposition of a "conspiracy" between Mr Ozone, the police officers, and potentially the Crown prosecutor himself.
Further, in light of the lack of evidence of a "conspiracy", the jury would have found the defence case inherently difficult to accept, rather than being affected by any inappropriate descriptors used by the Crown prosecutor.
In oral submissions, it was accepted again that the closing address of the Crown prosecutor included "some unnecessary flourish". It was also accepted that the reference by the Crown prosecutor to some of what the appellant had said as having been "off with the fairies" had a flavour of denigration of an unrepresented accused person.
To be weighed against that, it was submitted, was that the trial judge had appropriately directed the jury to consider the submission of the appellant that there had been a conspiracy against him, and that he had been framed. In fact, it was said, that direction in the summing-up was a generous one, in that, in truth, there was no evidence whatsoever - including from the appellant -upon which those submissions could or should have been based. The remarks of the trial judge throughout the trial and in the directions to the jury
The Crown submitted that, all things considered, the trial judge had conducted the trial in a fair manner, and took appropriate control of the proceedings so as to ensure fairness to the appellant.
The Crown referred to many examples: the explanation by the trial judge about how the Crown case would proceed; the advice his Honour gave to the appellant about the giving or calling of evidence and about cross-examination (including detailed assistance about the cross-examination of the appellant's wife); the advice to give consideration as to whether he wanted to give evidence himself; the exclusion of the search warrant document; the ruling that the appellant's wife should be called, as she could potentially give exculpatory evidence; at the appellant's request, the adducing of this exculpatory evidence by the trial judge; and the assistance afforded by the trial judge to obtain a customs document from Western Australia showing that the appellant had brought a large sum of foreign currency into the country.
The Crown further contended that whilst there were a number of "stern exchanges" between the trial judge and the appellant, the trial judge was nonetheless correct to say that he would not revisit matters that had already been ruled upon, and that the appellant had had earlier opportunities to prepare his case.
It was argued that the warning by the trial judge before the appellant delivered his final address was not a "trap" (as described by senior counsel for the appellant).
It was said that the appellant demonstrated an understanding of the proceedings and the allegations against him, as evidenced by the coherence of the applications he made and of his final address. It was submitted that the appellant had been quite capable of understanding the difference between evidence and submissions.
It was submitted that the direction to the jury to disregard any submissions of the appellant that had no evidentiary foundation was unimpeachable.
The Crown also submitted that the summing-up gave examples of matters that were based in evidence, and others that were not. For example, his Honour told the jury that they should not "sweep aside" the assertion by the appellant that the police officers had lied. The Crown submitted that this was very fair to the appellant, as in truth there was no evidence in the case to found a conspiracy theory.
In oral submissions, with regard to the criticisms made by the trial judge of the appellant purporting to give evidence in his final address from the Bar table, it was submitted that they were entirely orthodox.
The concluding point made about this ground in oral submissions was that one can readily infer from the whole of the transcript of this matter that the appellant is an intelligent person, and was sufficiently capable of conducting this litigation on his own behalf.

Determination of Ground 2

Turning to my determination of this ground, the following preliminary points can be made.
First, senior counsel for the appellant neither placed evidence before this Court to the effect that, nor otherwise suggested that, the appellant may have been unfit to stand trial at the time it took place. Such evidence, in my opinion, may have put a very different complexion on this matter. I infer from that course that the approach of the appellant to his trial, and his conduct during it, was the result of wilfulness, recalcitrance, and other characteristics of his personality rather than intellectual disability, or any psychological or psychiatric condition, or any other personal disadvantage beyond his control.
Secondly, it is important that no evidence was placed before this Court as to precisely what Mr Ozone might have been expected to say if he had been called as a witness at the trial. To expand on that: there was neither a proof of evidence from Mr Ozone himself, nor an affidavit from the appellant as to what he would expect Mr Ozone to say, nor evidence from any other source shedding light on the question. It remains a matter of this Court divining from the whole of the transcript what the appellant believed Mr Ozone would say in his favour, just as it was for the trial judge.
Thirdly, in that regard, respectfully contrary to the submission of senior counsel, I do not believe that the appellant was trying to say that, if compelled to give evidence, Mr Ozone would directly or indirectly take responsibility for the prohibited drugs located in the roof cavity. Rather, reading the transcript as a whole, I believe that the appellant was seeking to say that Mr Ozone played a role in the process whereby the police - allegedly wrongfully - obtained the search warrant that was executed at his home. I say that not only because, as my extensive extracts have shown, the appellant never directly claimed that Mr Ozone had placed the drugs in his home. I say it also because I believe that the import of his statements was that Mr Ozone had dishonestly or unfairly or illegally inculpated him, and it was that that led to the issuance and execution of the search warrant.
Fourthly, the inability of the appellant to formulate the basis upon which he wished to have Mr Ozone present - for example, perhaps to establish on the voir dire that, pursuant to s 138 of the Evidence Act 1995 (NSW), the fruits of the execution of the search warrant should be excluded as unlawfully or improperly obtained - was an inevitable consequence of his unwillingness or inability to work with the many sets of lawyers with whom he had been provided over many years.
Fifthly, to the extent that the appellant seemed to have been trying to "go behind" a search warrant on the basis that it had been issued on the basis of evidence that was false or wrong, he was not, as a matter of law, able to mount that argument: see, for a recent analysis of the question by this Court, Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109, in which cases were referred to that confirm the principle with regard to warrants issued pursuant to both Commonwealth and State legislation with regard to both Commonwealth and State offences: see, for example, Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28. And in a large sense, the application of that legal principle to my evaluation of the transcript that that was indeed what the appellant was seeking to do through Mr Ozone destroys much, if not all, of the force of the argument in this Court based on his absence from the trial.
Sixthly, the Crown prosecutor made it clear that he would not call Mr Ozone because, in his opinion, he was completely irrelevant to the trial. In my opinion, nothing has been placed before us to impugn that decision.
Separately, it is true that, in extraordinary circumstances, the trial judge can call a witness: see R v Apostilides [1984] HCA 38; (1984) 154 CLR 563. But it was not suggested to us that that should have happened here.
The objective reality is therefore that, if the trial judge had issued a subpoena for the attendance of Mr Ozone, and if he had been able to be located and brought to court, he would have needed to have been called by the appellant. At the start of that process, at the least, the appellant as calling party would have been required to ask Mr Ozone non-leading questions. And as I have said, even now there is no direct or indirect evidence as to what Mr Ozone would actually have said; at the least, one might expect him to deny wrongdoing on his own part. It is not easy, in short, to see how the failure of that process to take place constitutes a miscarriage of justice, not least because it is not easy to infer that the calling of the witness in that way would have benefitted the appellant.
Seventhly, as part of the orthodox process of explaining to an unrepresented accused the various choices that he or she may make throughout a criminal trial, the trial judge made the appellant aware that he could, if he wished, give evidence on oath or affirmation. He chose not to do so. Almost inevitably, that meant that the final address of the appellant was deprecated by the trial judge as containing much that the jury should disregard, on the basis that it was simply not founded in the evidence. That deprecation was unexceptionable.
To be weighed against all of the foregoing factors that, in my opinion, argue against the success of the ground, it may be accepted that the trial had some very unsatisfactory features; the experienced Crown prosecutor who appeared before this Court did not seek to persuade us to the contrary.
For example, as she accepted, the "cure" with regard to the question of the fingerprints was surely worse than the "disease" that troubled the trial judge. By that I mean, the concern of his Honour about the provenance of the fingerprints found on the crucial items being strictly proven should surely have been seen, with respect, to have been outweighed by the danger of the jury using prejudicially the fact that the fingerprints of the appellant had been taken by the police years beforehand.
For another example, some of the comments made by the trial judge in the presence of the jury would inevitably have led the jury to have an adverse view of the appellant.
For another example, although the appellant seemingly agreed more than once to the procedure whereby the trial judge asked open-ended questions of the prosecution witnesses, thereby in a sense setting out the case for the appellant, even so their inevitable denials of any serious wrongdoing rendered the exercise very largely futile, and indeed disadvantageous to the appellant.
For yet another example, although some of the submissions made by the Crown prosecutor in his final address to the jury were apposite in light of the state of the evidence, some of them went beyond the bounds of the role of a minister of justice, in that they belittled what there was of the case for the appellant, and should not have been made.
Seeking to make an evaluative judgment of all of those factors has a miscarriage of justice been established to have occurred here? The question is finely balanced, I confess. But after reflection, I consider that the responsibility for the undoubtedly defective features of this trial must be laid, very largely, at the feet of the appellant, as follows.
To repeat: the trial was being conducted 5 ½ years after the events upon which it was based. That literally scandalous state of affairs was the result of the approach of the appellant, not the criminal justice system as a whole, nor the trial judge nor the Crown prosecutor in particular.
The fact that the appellant was unrepresented was also, one can infer, the result of his approach to the litigation. Many if not all of the failings in the trial were a function of the simple fact that he was unrepresented. That is not a matter of 'blaming" the appellant for the fact that he appeared for himself at the trial; it is simply a matter of ascribing, to a large degree, causation for how things developed at that trial.
A third aspect of the trial that can be said to have been caused by the approach of the appellant is the fact that he was repeatedly criticised by the trial judge because he insisted on revisiting submissions that had been rejected, and often did so in the presence of the jury. Furthermore, some of his contentions were preposterous: for example, the proposition that the charges would be simply dropped, or that the trial should be adjourned so that he could seek legal representation, in light of the demonstrated futility of that course.
In short, in assessing in this Court whether a defective trial was so defective as to constitute a miscarriage of justice, I consider that the fact that the cause of many of its defects was the conduct of the appellant is not irrelevant.
Separately, despite my concerns about the adduction in evidence of the fact that the fingerprints of the appellant had been taken years beforehand, I think that the general proposition that juries are expected to follow directions against prejudicial lines of reasoning has application here.
More generally, it is easy perhaps to criticise a trial judge who is attempting to deal with the challenges presented by the conduct and approach of an accused person as here, in the context of the wholly unacceptable delays that he had already created before the trial commenced. But due allowance needs to be made, I think, for the practical forensic problems with which the trial judge was confronted; with the benefit of hindsight, a judge sitting in this Court can easily identify ways that he or she might have been able to deal with things better. And in assessing whether this trial as a whole constitutes a miscarriage of justice, I think that due allowance must be made, not as it were for judicial exasperation, but rather for the simple challenge of finding a way to bring the criminal proceedings against the appellant to a conclusion by way of verdicts, in light of his entrenched approach to them.
Reflecting on the combined effect of all of the matters relied upon by senior counsel for the appellant - none of which lacks some validity - I cannot accept that this trial constitutes a miscarriage of justice, with the inevitable consequence that this Court would order a new trial. I believe that its failings were very largely of the appellant's own making. And, as I have said, in light of the absence of any evidence that any factor rendered him unfit to stand trial, I cannot accept the proposition that the whole of the proceedings are now to be set at naught, more than seven years after the prohibited items bearing the fingerprints of the appellant were found in the roof cavity of his home.
In short, I would not uphold ground two.

Contingent role of the proviso with regard to Ground 2?

Finally, I indicate contingently that, if I be wrong in refusing to characterise these proceedings as a miscarriage of justice, I would not dismiss ground 2 on the basis of the "proviso" to be found in s 6 of the Criminal Appeal Act 1912 (NSW). That is because, despite the seeming simplicity and strength of the Crown case that the appellant did indeed possess the prohibited drugs for supply, it is the failings in the process of the trial that found the ground of appeal that themselves make assessment of whether a substantial miscarriage of justice has actually occurred impossible in the circumstances of this case.

Proposed orders

Because I would not uphold either ground of appeal against conviction, I propose the following orders: 1. Leave to appeal to argue ground 2 granted. 2. Appeal dismissed.
LONERGAN J:
I have had the advantage of reading the draft judgments of Basten JA and Button J. The factual and procedural background, circumstances of the arraignment and relevant exchanges between the then unrepresented applicant and the Bench have been set out at relevant length in those judgments and there is no need for me to repeat them.
I agree with both Basten JA and Button J that ground 1 of the appeal - that the applicant was not properly arraigned and thus the trial was a nullity - should be rejected. I specifically agree with and adopt Basten JA's conclusions in [40] and [41] on that issue.
In respect of ground 2, the miscarriage of justice ground, I have carefully and independently considered the transcript of the hearing and the five particular complaints made by the applicant. I have considered each complaint and its effect separately as well as together to assess their cumulative effect on the question of whether there was a miscarriage of justice arising from events occurring in the course of the trial.
I have reached the independent view that there was no miscarriage of justice.
I adopt and agree with Basten JA's analysis of each of these complaints in [42] to [66].
I agree that each of the complaints is without substance, and ground 2 must be dismissed.
I agree with Basten JA for the reasons he states in [67] that there should be a grant of leave with respect to ground 2 but that as both grounds must be dismissed, the appeal should be dismissed.

Endnotes

Tcpt, 23/10/17, p 3(37).
Tcpt, p 5(18).
Tcpt, 06/02/2017, p 3.
Tcpt, p 10.
Tcpt, 13/02/2017, p 4.
Criminal Appeal Act 1912 (NSW), s 5(1)(a).
(2005) 64 NSWLR 10; [2005] NSWCCA 281 at [221].
Ibid.
(1992) 29 NSWLR 242 at 247.
[1990] VR 305.
Tcpt, 23/10/17, p 4(5).
(2010) 79 NSWLR 194; [2010] NSWCCA 230 at [62] (Buddin J and Barr AJ agreeing).
(2019, Thomson Reuters) at [4-167].
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93].
Janceski at [218]-[219].
Williams remains authority for that proposition in the 2019 edition of Archbold: at [4-167].
Williams at 376H.
Williams at 377E.
Williams at 378C.
(1973) 57 Cr App R 571.
Williams at 378F.
Williams at 378-379.
(1883) Vol 1, p 297.
Williams at 379F.
Williams at 382.
Williams at 382D.
[1996] 1 VR 462 at 472 (Winneke P, Charles JA and Southwell AJA).
Tcpt, 23/10/17, p 10(22).
Appellant's written submissions, par 41.
Final submissions, Tcpt, 02/11/17, p 8(25).
Final submissions, p 6(30).
MacPherson v The Queen (1981) 147 CLR 512 at 523 (Gibbs CJ and Wilson J), 534 (Mason J), 543-544 (Brennan J), 537 (Aickin J agreeing with Mason and Brennan JJ); [1981] HCA 46.
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9]-[10] (Gleeson CJ).
Tcpt, p 2(46).
Tcpt, 24/10/17, p 23(40).
Tcpt, p 23(48).
Tcpt, p 24(18).
Tcpt, 25/10/17, p 51.
Appellant's written submissions, par 42.
Appellant's written submissions, par 65.
Appellant's written submissions, par 73.
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26.
Gallagher at 403; see also 399 (Gibbs CJ); cf Brennan J at 410 and Dawson J at 421.
(2017) 262 CLR 565; [2017] HCA 48 at [75].
Final Submissions, 02/11/17, pp 7(5)-8(15), 9(1), (33)-(41).
Summing-up, 02/11/17, p 5.
Tcpt, 02/11/17, p 4(10), (30)-(40).
Tcpt, p 5(8).

Amendments 08 August 2019 - Cover page: Texts Cited: Change "Howie and Johnson, Criminal Practice & Procedure NSW" to "LexisNexis Butterworths, Criminal Practice & Procedure NSW" "Sir" added to James Fitzjames Stephen "Sir" added to Stephen Mitchell and "QC" Decision [78] line 1: "[2]" is deleted and "[73]" inserted [79] line 2: "paragraph 2" is deleted and "[73]" inserted [82] line 2: "[73]" is deleted and "[79]" inserted [87] last line: the name "Osaumadi" is replaced with "Osuamadi" [107] penultimate line: "not" is replaced with "Not" [136] line 2: "permitted" is replaced with "permitting" [144] last line: add full stop at end of paragraph [163] line 2: inserted "the" before "2012" [174] last line: deleted "(tcpt 202(1)-203(6))" and replaced with "(tcpt, 30 October 2017, 202(1)-203(6))" [185] line 3: insert "the" before "fingerprint" [191] line 1: delete "to" [239] line 1: after "England" insert "and Wales" [240] line 1: change "Howie and Johnson in Criminal Practice and Procedure NSW at [7.150] states" to "LexisNexis Butterworths, Criminal Practice & Procedure NSW, vol 1 (at service 126) [7.150] states" [244] line 1: Add "Sir" before "Stephen" and added "QC" after "Mitchell" [245] line 1: add "Sir James" before "Stephen"; in the quote, in the penultimate line delete full stop after "Emphasis added"; add "Sir" in the penultimate line before "James"; and in the last line insert bracket at end of paragraph [246] line 2: add "Sir James" before "Stephen" [247] line 1: add "Sir James" before "Stephen" [268] line 1: add "of" before "Young" [268] line 1: change "(June 8 1967)" to "(8 June 1967)" [311] line 1: after "choices" insert "full stop" and change "however" to "However" [311] line 4: change "--" to " - " [369] last line: change "Prosecutor" to "prosecutor" [385] line 2: change "their" to "the" [406] the heading before para 406 change "ground" to "Ground" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2019

Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001(NSW)

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