Consideration
38 Both the appellant and the Crown relied on the statement in R v Ayres (1984) 1 AC 447 by Lord Bridge, with whose speech Lords Fraser, Scarman, Brandon and Templeman agreed, at 460-1 -
"If the statement and particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described as a nullity, it is obvious that a conviction under that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under that proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant."
39 In remarks preceding this passage Lord Bridge doubted the usefulness of the distinction between "an indictment which is 'a nullity' and one which is merely 'defective'". His Lordship was considering the application of the equivalent to the proviso in s 6(1) of the Criminal Appeal Act. The indictment charged the common law offence of conspiracy to defraud, with particulars that the accused had conspired with his co-defendant and others to obtain money from an insurance company by falsely claiming that a lorry and its contents had been stolen while in transit. It was held that in those circumstances the proper charge was a statutory offence of conspiracy to obtain property by deception, to the exclusion of the common law offence. The proviso was applied, it being said at 462 that the particulars in the indictment "left no one in doubt that the substance of the crime alleged was a conspiracy to obtain money by deception" - that is, that it was a case of intending to charge a known and subsisting criminal offence but pleading it imperfectly.
40 The appellant relied on Lord Bridge's statement for nullity where the statement and particulars of the offence disclosed no criminal offence; that may be accepted, but it is still necessary to decide whether the indictment in the present case did not disclose an offence known to the law. The Crown relied on the statement for validity where there was imperfect framing of a known offence. It referred to application of that notion, with reference to Lord Bridge's statement, in Kahatapitiye v The Queen [2004] WASCA 189; (2004) 146 A Crim R 542 and Chanthaboury v R [2007] NSWCCA 229. In the former case omission from the indictment that the sexual offences were without the complainant's consent was regarded as an imperfection when "the statement of particulars of the offence … could I think be seen fairly to relate to and be intended to charge a known and subsisting criminal offence, that is to say the offence of sexual penetration without consent" (at [22] per Templeman J, Wheeler and Miller JJ agreeing; his Honour referred also to the evidence being seen in the same way, but I respectfully question whether regard can be had to the evidence). In the latter case it was not submitted that the court attendance notice was a nullity (at [10]) and the consideration moved to application of the proviso; limited assistance to the present case is provided.
41 For the Crown's initial submission, the first question is whether it can fairly be understood that by the indictment it was intended to charge the s 25(1) offence of supplying a prohibited drug. The submission rested on the words "namely 279 grams of heroin" as governing the charge. I do not think that should be accepted, and in my opinion the offence charged in the indictment was the s 25(2) offence of supplying not less than the commercial quantity of a prohibited drug.
42 In charging the offence, it was stated that the appellant supplied not less than the commercial quantity of a prohibited drug, with the particular "namely 279 grams of heroin". That the supply was of not less than the commercial quantity of a prohibited drug was an element of the offence under s 25(2) of the Drug Act, distinguishing it from the offence under s 25(1), and the particular that the supply was of 279 grams of heroin identified the prohibited drug and the alleged quantity purportedly to make specific the allegation of supplying not less than the commercial quantity which could be made out by different prohibited drugs with different commercial quantities (see R v Puciarello, CCA, 4 June 1990, unreported). The words "not less than the commercial quantity of" were not surplusage. They were meant to be there, and were meant to state the s 25(2) offence of supplying not less than the commercial quantity of a prohibited drug, an offence distinct from the lesser s 25(1) offence of supplying a prohibited drug. The particular was of a quantity of heroin less than the commercial quantity, but the indictment asserted (wrongly) that it made specific the commission of the s 25(2) offence.
43 Kahatapitiye v The Queen was a very different case, in which the omission of one element of the known offence was a plain enough error. In R v Ayres, and in R v Molyneux (1980) 72 Cr App R 111 to which Lord Bridge referred at 461-2, the statutory conspiracy was misdescribed as a common law conspiracy but the particularised ingredients of the offence remained the same. Here the dominating feature of the indictment was the distinct statement of the s 25(2) offence of supplying not less than the commercial quantity of a prohibited drug.
44 Had the first question been answered in the Crown's favour, it seems that what followed would not have been the application of s 7(2) of the Criminal Appeal Act. Because according to the submission the offence truly charged was the s 25(1) offence, it would have been whether the proviso could be applied. When the jury was directed in terms of supply of not less than the commercial quantity of a prohibited drug, and returned a verdict of guilty of that offence, it may be difficult to see how that could be done. Dismissing the appeal would leave conviction for an offence which, on the Crown's initial submission, was not the offence truly charged.
45 It is not necessary to explore this, since I do not accept the initial submission. In my opinion, however, the Crown's alternative submission should be accepted. There was an offence known to the law in the indictment, the s 25(2) offence of supply of not less than the commercial quantity of a prohibited drug, and the statement that the supply was of 279 grams of heroin was a particular. The indictment was valid, although defectively particularised.
46 The appellant accepted that the words "namely 279 grams of heroin" were a particular. If the evidence conformed to the particular, as it did, a verdict of not guilty of the offence charged would follow. That does not mean that the indictment was invalid; the prospect of failure is not the same as invalidity. The powers to amend a defective indictment in ss 17 and 21 of the CP Act connote that the defective indictment is nonetheless valid, even if it is liable to be quashed, and it remains a valid indictment until quashed (see Knaggs v Director of Public Prosecutions at [50] for like reference to s 21 and a defective court attendance notice).
47 As earlier noted, an indictment founds the court's jurisdiction. The court's jurisdiction was invoked by presentation of an indictment charging the commission of the offence of supplying not less than the commercial quantity of a prohibited drug. It should be repeated that the appellant's complaint was not that the indictment was invalid because it failed to state necessary legal or factual elements of the offence with which he was charged. It was in the conventional form for a charge of an offence under s 25(2) of the Drug Act. Although proof of the particularised supply of 279 grams of heroin could not bring a conviction, it was for the court in the exercise of its jurisdiction to accede to an application which might bring amendment of the particularisation, quashing of the indictment or in due course a direction that the jury acquit. In the present case there was a mistrial because no one appreciated the difficulty with the indictment, but it was still a trial in the exercise of the court's jurisdiction. The remarks of Gleeson CJ and Gummow, Hayne, Heydon and Crennan JJ in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at [13]-[14], although made in a different context, are broadly applicable (and were applied in Knaggs v Director of Public Prosecutions at [35]-36] to the validity of an information) -
" [13] There also is a very real difficulty in characterising proceedings as "invalid". The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules.