BOUJAOUDE, Elia Elrob v R

Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364; Chanthaboury v R [2007] NSWCCA 229; Director of Public Prosecutions v Bhagwan [1972] AC 60, HL; Director of Public Prosecutions v Parmenter (1992) 1 AC 699; Griffiths v The Queen (1977) 137 CLR 293; Johnson v Miller (1937) 59 CLR 467; Kahatapitiye v The Queen [2004] WASCA 189; (2004) 146 A Crim R 542; Knaggs v Director of Public Prosecutions [2007] NSWCA 83; John L Pty Ltd v Attorney-General for New South Wales (1987) 163 CLR 508; Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303; ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153; McConnell Dowell Contractors (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) NSWCCA 24; CASES CITED : Preston v Donohoe (1906) 3 CLR 1089; R v Aldridge (1993) 67 A Crim R 371; R v Ayres (1984) 1 AC 447; R v Browne (1987) 30 A Crim R 278; R v Cameron (1983) 2 NSWLR 66; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 13; R v Mai (1992) 26 NSWLR 371; R v MAJW [2007] NSWCCA 145; R v Molyneux (1980) 72 Cr App R 111; R v Puciarello, CCA, 4 June 1990 unreported; Rockdale Beef Pty Ltd v Industrial Relations Commission [2007] NSWCA 128; S v The Queen (1989) 168 CLR 266; Stanton v Abernathy (1990) 19 NSWLR 656; Taylor v Environment Protection authority [2000] NSWCCA 71

PARTIES: Elia Elrob Boujaoude - Appellant The Crown - Respondent

COUNSEL: A J Bellanto QC & C Nash - Appellant J A Girdham - Respondent

SOLICITORS: Ford Criminal Lawyers - Appellant S Kavanagh, Solicitor for Public Prosecutions - Crown

LOWER COURT DATE OF DECISION: 15 February 2007 (Summing-up); 15 February 2007 (judgment); 5 April 2007 (judgment); 10 May 2007 (report to CCA)

IN THE COURT OF CRIMINAL APPEAL CCA 3229/07 DC 05/11/0943

GILES JA HISLOP J PRICE J

Friday 29 February 2008 Elia BOUJAOUDE v REGINA Judgment 1 GILES JA: The appellant was tried before Williams DCJ and a jury on an indictment charging that he - "On 9 May 1987 at Sydney in the State of New South Wales did supply not less than the commercial quantity of a prohibited drug, namely 279 grams of heroin." 2 The trial commenced on 5 February 2007. On 15 February 2007 the jury returned a verdict of guilty. 3 The proceedings were adjourned for sentencing. Prior to sentencing the appellant applied for a stay pending the statement of a case under s 5A of the Criminal Appeal Act 1912, proposing by the stated case to raise whether the trial had proceeded on a valid indictment. In reasons given on 5 April 2007 the judge declined to state a case, but stayed the sentencing proceedings in order that the appellant might appeal against conviction under s 5 of the Criminal Appeal Act. 4 By a certificate dated 10 May 2007 the judge certified (probably unnecessarily, see s 5(1)(b) of the Criminal Appeal Act) that the case was a fit case for an appeal. On 16 May 2007 he provided a report to the Court of Criminal Appeal (see s 11 of the Criminal Appeal Act). 5 On 15 June 2007 the appellant filed a notice of appeal against conviction. The appeal was on the sole ground that "The verdict of the jury was not in accordance with the law." The ground as explained challenged the validity of the indictment. 6 The return of a verdict of guilty generally itself amounts to conviction of the offender, without formal pronouncement of conviction by the presiding judge, and this Court has jurisdiction to entertain the appeal notwithstanding that the appellant has not been sentenced: Griffiths v The Queen (1977) 137 CLR 293; R v MAJW [2007] NSWCCA 145. It appears that an extension of time is required for the appeal. No application for an extension of time was made, but nor did the Crown suggest that an extension if required should not be granted. The circumstances clearly warrant an extension of time, and it should be granted.

The difficulty with the indictment 7 The appellant was arrested on 9 May 1987. He was charged with supplying a prohibited drug, namely 279 grams of heroin. The charge according to its terms was pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 ("the Drug Act"). 8 As at May 1987 s 25 of the Drug Act relevantly provided - " Supply of prohibited drugs 25(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.

(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.

(3) Where, on the trial of a person for an offence under subsection (2), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1), and the person shall be liable to punishment accordingly.

(4) … " 9 There were distinct offences under s 25(1) and s 25(2). The maximum penalty for the s 25(1) offence was a fine of $200,000 or imprisonment for 15 years, or both. The maximum penalty for the s 25(2) offence was a fine of $500,000 or imprisonment for life, or both. As at May 1987 the commercial quantity of heroin was 1 kilogram. The charge of the s 25(1) offence of supplying a prohibited drug was the appropriate charge. 10 The appellant was released on bail. He did not appear to answer his bail, and on 25 August 1987 a warrant was issued for his arrest. He was overseas for some years. He was arrested on 3 February 2005. 11 Committal proceedings were held, and on 22 September 2005 the appellant was committed for trial on the charge of supplying a prohibited drug. It appears that when the matter was before the Chief Judge on 18 November 2005 an indictment in terms of that charge was filed in the District Court. 12 On 23 November 2005 there was filed in the District Court a Notice of Alteration to Indictment. The form used referred to reg 9(5) of the regulations made under the Criminal Procedure Act 1986 ("the CP Act"). The then current Criminal Procedure Regulation 2005 did not have a reg 9(5), and the reference must have been to reg 9(5) in the previous Criminal Procedure Regulation 2000. The 2005 equivalent was reg 7, concerned with changes to a draft indictment proposed to be presented. The indictment filed on 18 November 2005 was then presented (District Court Rules 1973, r 10D), and could only be amended in accordance with s 20 of the CP Act. It appears not to have been a situation of alteration of a draft indictment. No point was taken in this respect. 13 The Notice of Alteration to Indictment relevantly stated - "The indictment filed in this matter on 18.11.05 has been altered.

Attached is a copy of the indictment presently proposed.

The following alteration/s have been made to the charges set out in the previous indictment.

CHARGE ALTERATION Supply Prohibited Drug: Act 226 1985 s 25 Supply not less than Commercial Quantity of a Prohibited Drug: Act 226 1985 s 25(2) "

14 The "indictment presently proposed" was in the terms of the indictment presented at the commencement of the trial on 5 February 2007. 15 Between May 1987 and November 2005 the Drug Act had been amended by the Drug Misuse and Trafficking (Amendment) Act 1988. The amendments included reduction of the commercial quantity of heroin from 1 kilogram to 250 grams. A separate offence was created of supplying not less than the large commercial quantity of a prohibited drug, in the case of heroin the large commercial quantity being 1 kilogram. Section 25(1), (2) and (3) remained in the same terms, but the maximum penalty for an offence under s 25(2) was reduced to a fine of 3,500 penalty units or imprisonment for 20 years, or both and higher penalties were prescribed for supplying not less than the large commercial quantity of a prohibited drug. 16 It appears that someone in the Office of the Director of Public Prosecutions thought that, the quantity of heroin in the charge against the appellant being in excess of 250 grams, the proper charge was the s 25(2) offence of supplying not less than the commercial quantity of a prohibited drug, without appreciating that the alleged supply pre-dated the amendments to the Drug Act. 17 The Crown case at the trial was that the appellant had supplied the heroin to an undercover police officer. The jury was directed that a commercial quantity of heroin was "anything more than 250 grams". In circumstances not appearing clearly from the appeal papers, at a late stage a question arose whether the quantity of heroin supplied (if the jury accepted that there was a supply) was the 279 grams or some lesser quantity, and the jury was directed - " … that if you are satisfied that a supply of a prohibited drug occurred but you are not satisfied that it was 279 grams, it was some other lesser amount than 250 grams, you would find the accused not guilty of this offence but you could find him guilty of an offence of just supplying a prohibited drug … ". 18 This direction was in accordance with s 25(3) of the Drug Act. The jury found the appellant guilty of the offence under s 25(2), and thus must have found that the quantity of heroin supplied was in excess of 250 grams. 19 The difficulty with the indictment (to use a neutral word) was that at the time the appellant supplied the heroin to the police officer supply of 279 grams of heroin did not make out the s 25(2) offence of supplying not less than the commercial quantity of a prohibited drug. The commercial quantity of heroin was then 1 kilogram. Yet with the alteration to the indictment in November 2005 the indictment charged that the appellant supplied not less than the commercial quantity of a prohibited drug. 20 The Court was informed that "[t]he instructing solicitor for the appellant only became aware of the earlier legislation and the subsequent amendment sometime after the jury had returned with a verdict of guilty". The stay application earlier mentioned was then made. It is not clear why the appellant's solicitor was singled out. It seems that all concerned were not conscious of the difficulty with the indictment until after the jury had returned their verdict.

The competing positions 21 The appellant submitted that the indictment presented on 5 February 2007 was invalid and the conviction therefore could not stand. He submitted that the indictment did not disclose an offence known to the law, because supply of 279 grams of heroin could not in May 1987 make out the offence of supplying not less than the commercial quantity of a prohibited drug. He said that the indictment should have charged him with the different and lesser offence of supplying a prohibited drug, and that in charging him with the offence of supplying not less than the commercial quantity of a prohibited drug it was fatally flawed. 22 The Crown accepted that an indictment which did not disclose an offence known to the law was invalid and that any conviction thereunder could not stand. It accepted that the indictment was defective, but it did not accept that it was invalid. It submitted that the indictment did disclose an offence known to the law, on alternative bases. 23 Initially the Crown submitted that the indictment disclosed the s 25(1) offence of supplying a prohibited drug. According to the submission, because the indictment stated as the quantity of a prohibited drug the 279 grams of heroin, the issue at the trial was the supply of that quantity of heroin; and because 279 grams of heroin could not be in excess of the commercial quantity of 1 kilogram as the Drug Act stood in May 1987, the words "not less than the commercial quantity of" in the indictment could be disregarded and had no effect on the validity of the indictment. It said that supply of a prohibited drug was (in the words of the Crown's written submissions) "an essential ingredient in the proof of the s 25(2) offence, that it was a necessary step towards establishing the major offence that the commission of the lesser offence be proven". In its submission, the jury had necessarily found that the appellant had supplied heroin, indeed more than 250 grams of heroin, and pursuant to s 7(2) of the Criminal Appeal Act this Court should substitute for the jury's verdict a verdict of guilty of the offence of supplying a prohibited drug. 24 The Crown came to put the alternative submission that the indictment charged the s 25(2) offence of supplying not less than the commercial quantity of a prohibited drug, with the words "namely 279 grams of heroin" as "a mere particular". The indictment was defective, not because the particular was factually incorrect but because 279 grams of heroin could not be in excess of the commercial quantity of 1 kilogram as the Drug Act stood in May 1987, but that defect did not detract from the charging of the s 25(2) offence or invalidate the indictment. Again invoking s 7(2) of the Criminal Appeal Act, the Crown said that although commission of the s 25(2) offence had not been proved, the jury had necessarily found that the appellant had supplied more than 250 grams of heroin and this Court should substitute for the jury's verdict a verdict of guilty of the offence of supplying a prohibited drug.

An indictment 25 By s 5(1) of the CP Act an offence "must be dealt with on indictment" unless under that or any other Act it is permitted or required to be dealt with summarily. By s 5(2), an offence may be dealt with on indictment if it is an offence that under that or any Act is permitted to be dealt with summarily or on indictment. 26 Section 8 of the CP Act provides - " Prosecution of indictable offences "(1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions.

(2) Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment.

(3) This section does not apply to offences that is [sic] required to be dealt with summarily.

(4) This section does not affect any law or practice that provides for an indictable offence to be dealt with summarily." 27 Section 11 of the CP Act provides - " 11 Description of offences

The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law." 28 The CP Act does not otherwise lay down what may or must be stated in an indictment, nor was it suggested that other legislation or delegated legislation relevantly directed how an indictment for presentation in the District Court should be framed. 29 Section 130(1) of the CP Act provides that the court "has jurisdiction with respect to the conduct of the proceedings on indictment as soon as the indictment is presented and the accused person is arraigned". 30 The indictment is the process by which the criminal proceedings are commenced and which founds the court's jurisdiction. As was said of an information in John L Pty Ltd v Attorney-General for New South Wales (1987) 163 CLR 508 at 519-20 per Mason CJ and Deane and Dawson JJ, the words being equally applicable to an indictment - "The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence" ( Ex parte Lovell ; Re Buckley (1938) 38 SR(NSW) 153 at 166).

If an information is invalid for the reasons that it failed sufficiently to identify the ingredients of the actual offence, it will be inadequate to satisfy a statutory requirement … that proceedings be commenced by information since, as a matter of ordinary construction, such a requirement can only be satisfied by a valid information." 31 This function has been reiterated, in relation to an indictment, in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [53], [55] per Spigelman CJ, [205] per Wood CJ at CL and [216]-[219] per Howie J (with whom Hunt AJA and Johnson J agreed). In R v Mai (1992) 26 NSWLR 371 Hunt CJ at CL, with whom Enderby and Allen JJ agreed, said at 377-8 - "Like an information, the indictment at common law must disclose an offence punishable by law, and it may be quashed if it does not, for it is the indictment which founds the jurisdiction of the court to which it is presented: cf John L Pty Ltd v Attorney-General for the State of New South Wales (1987) 163 CLR 508 at 519." 32 There are statutory provisions curing or precluding reliance on a defect in an indictment. Relevantly to an indictment presented in the District Court, s 16(1) of the CP Act provides that an indictment "is not bad, insufficient, void, erroneous or defective on any of the following grounds", and in subsequent paragraphs states a number of grounds. 33 Section 17 of the CP Act provides -

" 17 When formal objections to be taken (1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn.

(2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect." 34 No submissions were directed to the significance, if any, of s 17 to the appellant's challenge to the indictment by way of appeal after conviction. In R v Janceski Howie J said at [277] that insofar as the operation of s 17 relies upon waiver of a patent defect by the actions of the accused in pleading to the indictment - " … I do not understand how the invalidity of an indictment can be waived. Invalidity goes to the very operation of the indictment to give the court jurisdiction." 35 The Crown did not submit that any of the paragraphs in s 16(1) of the CP Act applied in the present case. However, they are not exhaustive of the circumstances in which a defective indictment may nonetheless be valid. As Spigelman CJ said in R v Janceski at [79] - "79 … the scope of [ss 16 and 17 of the CP Act] is so wide that it can support the proposition that Parliament did not intend that every other defect, however or whenever occurring, should deprive an indictment of its character as such for purposes of other sections of the Act." 36 Many cases consider the necessity for an indictment to identify the legal elements of the offence and the essential factual ingredients, and the distinction between the essential factual ingredients and particulars required to ensure that the accused is able to prepare his or her defence; they also consider the effect of s 11 of the CP Act upon the common law requirement that the indictment identify essential factual ingredients of the actual offence alleged to have been committed. Reference may be made to John L Pty Ltd v Attorney-General for New South Wales [2000] NSWCCA 71; (2000) 50 NSWLR 48, Stanton v Abernathy (1990) 19 NSWLR 656; Taylor v Environment Protection Authority [2000] NSWCCA 71; (2000) 50 NSWLR 48; McConnell Dowell Contractors (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) NSWCCA 24; Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303, Rockdale Beef Pty Ltd v Industrial Relations Commission [2007] NSWCA 128 at [27-[28]; and Knaggs v Director of Public Prosecutions [2007] NSWCA 83. 37 It is unnecessary to go to these cases, because 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; nor did the Crown rely on s 11 of the CP Act. The appellant's case was that the indictment was fundamentally defective, and so invalid, because it did not disclose an offence known to the law. For this the appellant took the words "namely 279 grams of heroin" as part of the statement of the ingredients of the actual offence, and asserted internal inconsistency in that proof of the supply of 279 grams of heroin could not make out the offence of supplying not less than the commercial quantity of a prohibited drug.

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.

[14] Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. . This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court." 48 Particulars might reveal a flaw in the Crown case, but that does not mean invalidity of the basal indictment. The basis of particulars is that procedural fairness calls for the accused to know the case the accused must meet: "For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge" (Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J). It is not necessary that all particulars appropriate for that purpose appear on the face of an information (Preston v Donohoe (1906) 3 CLR 1089 at 1091 per Griffiths CJ; ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 at 170 per Jordan CJ; Knaggs v Director of Public Prosecutions at [72]-[74] per Campbell JA, Mason P and Tobias JA agreeing), nor in an indictment since particulars can be ordered (see generally Johnson v Miller; S v The Queen (1989) 168 CLR 266; Director of Public Prosecutions v Parmenter (1992) 1 AC 699). If particulars are given in the indictment, here the particular "namely 279 grams of heroin" they remain particulars. They can be amended (if necessary with leave of the court under s 20 of the CP Act), or supplemented either voluntarily at the accused's request or by order of the court on the accused's application. 49 The particular "namely 279 grams of heroin" in the indictment could have been amended, subject to questions of procedural fairness, to (say) 2790 grams of heroin had 279 grams been a mis-typing or had the true amount which the Crown believed it could establish had been the greater amount. If the evidence in the Crown case established a quantity of 2750 grams rather than 2790 grams, it would have been open to the jury to convict. The particular did not forever tie the Crown to that quantity of heroin for the offence charged, and departure from a particular in the indictment would not mean failure to make out the offence charged. The underlying indictment remained. 50 I do not think it was contested that, if the indictment was valid, pursuant to s 7(2) of the Criminal Appeal Act this Court can substitute for the jury's verdict a verdict of guilty of the offence of supplying a prohibited drug. In my opinion that can and should be done. 51 Section 7(2) provides -

"(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity." 52 It is necessary that the jury "could on the indictment have found the appellant guilty of some other offence". At common law an alternative verdict could be taken for a lesser offence if its ingredients were included in the greater offence charged, see R v Cameron (1983) 2 NSWLR 66. That satisfies the requirement in s 7(2), see R v Browne (1987) 30 A Crim R 278 at 307. In the present case supply of a prohibited drug was included in the offence of supplying not less than the commercial quantity of a prohibited drug. The jury must have found that the appellant supplied more than 250 grams of heroin. I can see no reason why this Court should not give effect to that finding. Accordingly, while the appellant's conviction must be quashed a verdict of guilty of the s 25(1) offence should be substituted. 53 Section 7(2) provides for this Court to pass sentence on the offender. As earlier described, the appellant has not yet been sentenced. No sentencing hearing has been held. It is not appropriate for this Court to conduct an initial sentencing hearing, and the proceedings must be remitted to the District Court for that to occur.

A jurisdictional question 54 The appellant's submissions included - " … that this matter has come before this Honourable Court by way of a Judge's Certificate, pursuant to s 5A Criminal Appeal Act 1912, for the purpose of deciding a specific question of law, and it is that matter for this Court to decide. The appellant is not precluded from making an all grounds of appeal in the future." 55 The matter came before the Court as an appeal against conviction by the appellant. The judge's certificate was that the case was a fit case for an appeal, not by way of submission of a question of law pursuant to s 5A of the Criminal Appeal Act. The submission is in error.

1. Time for filing the notice of appeal be extended to 15 June 2007. 2. Appeal allowed and conviction quashed. 3. Substitute a conviction for the offence of supplying a prohibited drug. 4. Remit the proceedings to the District Court for sentencing. 57 HISLOP J: I agree with Giles JA. 58 PRICE J: I have had the advantage of reading in draft the judgment of Giles JA which I propose, gratefully to adopt. I wish to add that the facts stated in the indictment disclose an offence under s 25(1) of the "Drug Act" which was a necessary step towards establishing the more serious offence under s 25(2). An alternative verdict of the s 25(1) offence was available by the operation of s 25(3). This is not a case where the facts stated in the indictment did not amount to an offence known to law: see DPP v Bhagwan [1972] A.C. 60, HL. Nor is it a case where the appellant on the indictment could not be convicted of an offence either as an original charge or as an alternative one: see R v Alridge (1993) 67 A Crim R 371. The indictment whilst defective, in my opinion was not invalid. The jury could on the indictment and on the evidence have found the appellant guilty of an offence under s 25(1).

59 I agree with the orders proposed by Giles JA. **********

04/02/2009 - typographical corrections made by his Honour - Paragraph(s) Para 9, third sentence: "offence" added after s 25(2).Para 24, third sentence: delete "of" after "invoking".

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