Accessory after the fact to robbery with arms or in company
Between 4.24 pm and 4.28 pm on 31.10.2005 at Fairfield
That Vong Phet Chanthaboury on 31st day of October 2005, at Fairfield in the State of New South Wales, did (sic) and it is further charged that Von Phet Chanthaboury knowing the said Ivo Lai to have committed the said serious indictable offence in the manner aforesaid, afterwards, to wit, on 31st day of October, 2005, in the said State, did receive, harbour, maintain and assist, the said Ivo Lai."
15 When the matter came before the sentencing judge, the Crown Prosecutor said:
"Both offenders pleaded guilty to a sequence of attempted armed robberies where first of all there was an attempted armed robbery on a newsagency, which was unsuccessful and subsequently about ten minutes later there was a robbery armed with an offensive weapon at a supermarket … For Mr Chanthaboury he was the accessory to the attempted armed robbery and was also the accessary after the fact to the armed robbery on the supermarket. And also Mr Chanthaboury has a form one matter for drive vehicle speed in manner dangerous and also a section 166 matter for never licensed person …. "(sic)
16 The transcript of proceedings before the sentencing judge records that before turning to consider matters relevant to sentence his Honour said: "Mr Chanthaboury is convicted of being an accessory after the fact to an attempted armed robbery."
17 Section 47 of the Criminal Procedure Act 1986 ("the Act") provides that committal proceedings are to be commenced by a CAN. Section 50(1) of the Act provides that the CAN must be in writing and in the form prescribed by the rules. Section 50(3)(a) requires the CAN to describe the relevant offence.
18 Section 15(2) of the Criminal Procedure Act provides that an indictment includes a CAN. Section 16(1)(b) of the Act provides that an indictment is not "bad, insufficient, void, erroneous or defective":
"for want of an averment of any matter unnecessary to be proved or necessarily implied."
19 The Crown submitted that the word "attempted" did not have to be included in the CAN. Section 162 of the Criminal Procedure Act provides that an alternative verdict of "attempt" is available on any trial for an indictable offence even though no reference to "attempt" is included in the indictment. Accordingly, the Crown submitted that the present CAN was a sufficient foundation for a conviction in relation to the attempt matter.
20 In my opinion this submission cannot be accepted. If the charge in the indictment provided that the charged offence was a completed offence then by reason of s 162, a conviction for the offence of attempting the completed offence would be available. However, in the present case the appellant was charged with the completed offence of being an accessory after the fact to an offence committed by Mr Lai. There was no suggestion that the appellant was to be charged with or convicted of the offence of attempting to commit any offence. The correct description of the principal offence was required if the offence was to be correctly charged.
21 Notwithstanding these difficulties I consider the matter can be appropriately disposed of by the application of the "proviso" provided by s 6(1) of the Criminal Appeal Act. There was a valid indictment which charged the appellant as an accessory to the completed offence although it was intended that he be charged as an accessory to an attempted offence.
22 There can be no doubt that both the appellant and the prosecution intended that the appellant would plead guilty to the "attempt offence." If as should have occurred once the defect had been identified and the CAN had been amended, the power to make that amendment would have been undoubted. Sections 20 and 21 of the Criminal Procedure Act 1986 provides for it. The sentencing judge had before him the CANs relating to both of Mr Lai's offences which were clearly identified as, in one case, the attempted armed robbery offence contrary to s 97(1) and s 344A of the Crimes Act and, in the other case, the completed offence contrary to s 97(1). Conviction of the appellant as an accessory after the fact in either of the offences was dependent on the commission by Mr Lai of the primary offences.
23 The application of the proviso where there is a deficiency in the indictment has been considered on many occasions. It was recently considered by this Court in Swansson v R [2007] NSWCCA 67. It is usual, as was the case in Swansson to consider the issue following conviction after a trial. Counsel have not been able to identify authority directly in point where an accused person has pleaded guilty and later seeks to challenge the conviction because of deficiencies in the indictment.
24 In R v Ayres [1984] 1 AC 447, the House of Lords considered the circumstance where the accused was charged upon indictment with the common law offence of conspiracy to defraud when the relevant section of the Criminal Law Act 1977 required the accused, having regard to the circumstances, to be charged with the relevant statutory offence. The charge of conspiracy to defraud was found to be improper and a material irregularity in the course of the trial. The question of the application of the proviso arose for consideration. As to that question Lord Bridge said:
"In a number of cases where an irregularity in the form of the indictment has been discussed in relation to the application of the proviso a distinction, treated as of crucial importance, has been drawn between an indictment which is 'a nullity' and one which is merely 'defective.' For my part, I doubt if this classification provides much assistance in answering the question which the proviso poses. 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 the 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."
25 Lord Bridge referred, inter alia, to the decision in Reg v Molyneux (1980) 72 Cr App R 111 where the appellant had been convicted of conspiracy to defraud when the true offence proved against him had been conspiracy to rob. The Court of Appeal held that although there was a misnomer in the statement of offence, having regard to the particulars and the summing up there had been no actual miscarriage of justice, and the proviso should be applied.
26 Ayres has been applied in Australia. In Kahatapitiye v The Queen (2004) 146 A Crim R 542 the indictment charged a number of offences of sexual penetration of the complainant, but omitted the words "without her consent." It was apparent that proper directions had been given to the jury and lack of consent was not an issue at the trial. The Court of Criminal Appeal in Western Australia held that the proviso should be applied because it could be said "with confidence that the error in the indictment did not in any way prejudice or embarrass the defendant."
27 In R v Janceski (2005) 64 NSWLR 10 Spigelman CJ identified the functions performed by the initiating process in a criminal trial. The Chief Justice said:
"Most of the functions performed by the process which initiates criminal proceedings, particularly an indictment for serious offences, have been fully satisfied by the precise terms of the charge appearing, as it does, in the same form in the various indictments. These include:
(i) Informing the court of the precise identity of the offence with which it is required to deal ( John L Pty Ltd (at 519)).
(ii) Providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients ( John L (at 519)).
(iii) Enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law ( S v The Queen (1989) 168 CLR 266 at 284, 285).
(iv) Determining the availability of a plea of autrefois acquit and autrefois convict ( S v The Queen (at 284); Walsh v Tattersall (1996) 188 CLR 77 at 90, 110-111)."
28 It may be readily appreciated that each of functions (i), (ii) and (iii) were otherwise achieved or were irrelevant in the present case. However, there remains a question of whether, without the CAN being amended, the appellant is denied a plea of autrefois convict.
29 This Court has not been provided with the court documents of the District Court beyond the defective CAN. However, the only conviction which could be entered in the court's records would be that recorded by the sentencing judge. If a plea of autrefois convict or a plea in bar later becomes necessary the appellant would have the transcript available to prove the charge upon which he has previously been convicted. If it was necessary he could by mandamus require the court to issue a correct record of the proceedings including his conviction.
30 The High Court comprehensively considered the pleas of autrefois convict and acquit and a plea in bar in Pearce v R (1998) 194 CLR 610. Although once strictly confined the more recent recognition that a plea in bar may arise when a person is prosecuted for substantially the same offence with a complementary capacity in the court to restrain an abuse of process contemplates a broader inquiry when the defence is raised. It may involve an examination of the evidence which supported the first charge and that which is proffered to support the second charge.
31 Although a correctly drawn CAN with the orders of the court endorsed on it, thereby perfecting those orders, could be tendered to prove the conviction or acquittal of the offence charged, an accused would not be confined to that means of proving the outcome of previous proceedings. If, as in the present case the transcript provides conclusive proof of the charge upon which the person was convicted, it would be available to support the plea of autrefois or a plea in bar. The determination of the issue contemplated by s 156 of the Criminal Procedure Act 1986 could be made by reference to the certified copy of the transcript.
32 Accordingly, notwithstanding the omission from the CAN, I am satisfied that in all the circumstances no substantial miscarriage of justice has occurred and the appeal against conviction should be dismissed.