[The above quotation is taken from pages 158 and 159 of the paper as reproduced in the volume: "Jesting Pilate" , a compilation of Dixon CJ's extra-curial papers and writings.]
102 The relevant passage in the Chesterton work is:
"Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death."
103 The origins of the present appeal are, in my opinion, a paradigm example of the dangers against which, in their different particular ways, both Dixon CJ and Chesterton were warning. For if it be asked why the existing and well-entrenched norm of "one indictment, one jury" should now be swept away at, so to speak, a stroke of the curial pen, then the frank answer is that to sweep away the norm would rescue the amour propre of whoever it was who decided, for reasons which nobody was able to propound for this Court in any way whatsoever, to depart from the norm. I can envisage, for my own part, no more unconvincing, no more unjustifiable, a basis upon which to disturb a fundamental norm of a criminal trial in our system of criminal justice.
104 This Court should, in my opinion, reaffirm in the plainest terms that the "one indictment, one jury" principle is a fundamental norm in a criminal trial in New South Wales; and that if there is to be an abrogation of that fundamental norm, then that abrogation should be accomplished by informed, thoughtful and measured legislative amendment, and not by yet another curial moving of the relevant goal posts in response to an adventitious administrative decision.
105 It should be affirmed in addition, in my opinion, that the "one indictment, one jury" principle does in fact have a practical value. An insistence upon the observance of the principle will entail, in the nature of things, that the Crown or other prosecuting authority must think through carefully, and then express in a clear and convenient form precisely what charge(s) it is proposed to bring to trial in a particular hearing before a particular Judge and jury. If two or more accused are to be tried jointly, then a single indictment will make that fact completely clear to the jury. If it is proposed to lay before the jury some alternative(s), then a single indictment will make that fact completely clear to the jury.
106 It has been remarked elsewhere that an indictment is not merely a sheet of paper containing writing. Indeed it is not. It is the statement, the formal tender of which commences correctly a criminal trial of a citizen. Clarity and precision are the minimum requirements of any charge(s) thus preferred against a citizen. Compliance with the established norm will achieve them. That is a deeply-rooted principle grounded in centuries of experience. In my respectful view this Court should resolutely say so.
107 As to Question 2, I can see no answer to the proposition that, as the relevant law currently stands, the relevant departure from the relevant fundamental norm has resulted in a trial procedure, but in a trial procedure so flawed as to be a nullity. The relevant supporting authorities are examined by the Chief Justice and I have no need to add anything to that discussion by his Honour.
108 As to Question 3, I would answer that question, simply: no.
109 If, as I believe, the "one indictment, one jury" principle is a fundamental norm of a criminal trial; then the proviso cannot authenticate the penal consequences of a trial process that has been a nullity. The reasoning of Brennan, Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365 at 373, which reasoning is quoted in paragraph [52] of the reasons of the Chief Justice, seems to me to be conclusive of the point.
110 The reasoning of the Chief Justice draws attention to three recent decisions of the High Court of Australia. I, with respect, do not understand them, or any of them, to alter the law as stated in Wilde (supra).
111 In Weiss v The Queen (2005) 224 CLR 300, the High Court took as the relevant starting point this proposition:
"36. By hypothesis, when the proviso falls for consideration, the appellate court has decided that there was some irregularity at trial. If there was not, there is no occasion to consider the proviso."
112 The High Court went on to explain that in a case in which the use of the proviso might hypothetically cure some irregularity at trial, - for example, an irregularity in the form of the erroneous admission at trial of prejudicial evidence, that being the actual irregularity with which Weiss was concerned, - then the Court which is asked to apply the proviso must make its own independent assessment, in the manner explained by the High Court, of the trial evidence.
113 In my opinion Weiss is of no practical assistance in the present case. This Court is dealing, in my perception of things, not with an irregularity in a trial in which the established norms going to the root of the concept of a fair, lawful trial have been observed. This Court is dealing, rather, with a purported trial that was in truth a nullity by reason of a failure to observe one of those established norms.
114 In Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 two Justices, Gummow and Hayne JJ, say at paragraph [36], and speaking of the proposition which I have previously cited from Wilde:
"It is not necessary to explore the boundaries of this proposition or to attempt to identify circumstances in which it could find application. To do so would require close attention to what is meant by 'essential requirements of the law' and 'the root of the proceedings'. These notions may reflect what has been said by some members of the Court respecting aspects of 'due process' discerned from Ch III of the Constitution. However that may be, in the context of a criminal trial it may be open to doubt whether some requirements of the law are properly to be dismissed as inessential or whether some requirements are to be classified as radical and others not."
115 It seems to me, with respect, that those observations are obiter dicta. That seems to me to follow from what is said by their Honours in paragraph [37]:
"In the present case, the proposition that the incompetence of the appellant's counsel went to the root of his representation is either self-evident or circular. If all that was meant was that counsel was incompetent, the addition of reference to the root of the appellant's representation is superfluous. If it was intended to convey that the incompetence of representation at trial led to a miscarriage of justice, it is a proposition that does not add to the considerations examined earlier in these reasons."
116 A speculation that Wilde, or aspects of it, might be reconsidered by the High Court on some future occasion does not entail, in my respectful opinion, that this Court either can or should disregard Wilde now.
117 In Darkan v The Queen (2006) 80 ALJR 1250, the Court was concerned with a trial in which there had been a serious error of law in the directions given to the jury. The aspect of the decision that has potential bearing upon the present appeal is best dealt with, in my opinion, by attending to what is actually said in paragraphs [94] and [107] of the joint majority judgment of Gleeson CJ, Gummow, Heydon and Crennan JJ:
"[94] In Weiss v The Queen this court put aside questions relating to two particular kinds of defect in a trial. One was whether the proviso could be applied when there had been 'a significant denial of procedural fairness'. This does not arise, because the trial was procedurally fair. The other was whether the proviso could be applied where there had been a sufficiently 'serious breach of the presuppositions of the trial'. This was a reference to a trial which had 'so far miscarried as hardly to be a trial at all' or 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings'. Neither defect existed in relation to the trial so far as it concerned the first appellant."
"[107] It is true that the error went to an element in the case advanced against the second appellant at trial (unlike the position with the first and third appellants, in respect of whom there were other paths to conviction unaffected by the error). However, the second appellant's complaints about the summing-up had a double aspect. One was that no direction at all should have been given; the other was that the direction was wrong in its terms. It is relevant that counsel did not ask the trial judge not to give, or to withdraw, the direction. It is true that if a direction were to be given, justification could be found for the form of the words used by the trial judge in R v Hind . But that case did not mandate that any direction be given. It was open to counsel to request that the direction not be given, or that it be withdrawn. The proposition that no direction should have been given was rejected above, but the failure of counsel to request that it not be given or that it be withdrawn suggests that counsel did not perceive the direction as especially damaging to the second appellant's interests. It is also relevant that the error affected only the degree of probability required. The trial judge repeatedly referred to the concept of probability; his error was to speak of a real or substantial possibility or chance, rather than a level of probability below the balance of probabilities. The fact is that whatever the meaning of 'a probable consequence', the circumstances engineered by the second appellant fell within the expression. The complaints of the second appellant in particular about the direction appear to have been formulated after the conviction for appellate purposes. Even though they go to an aspect of the crime's charges in one of their elements, their nature is not such as to suggest that there was in truth no trial at all."
118 I would say, yet again, that the present appeal is not dealing with an irregularity, even a serious one, at trial. It is dealing, in my view, with a failure to observe a fundamental norm or "presupposition" of a fair, lawful criminal trial upon indictment.
119 As previously indicated, I concur in the making of the orders proposed by the Chief Justice.
120 SIMPSON J: I have read in draft the judgment of the Chief Justice and also those of McClellan CJ at CL, Sully and Howie JJ. In my opinion, in each case, the appeal ought to be allowed, and the conviction set aside. What follows are my reasons for that view. I do not propose to restate the background.
121 Two classes of case arise:
· the first is where two or more individuals, charged on separate indictments, are prosecuted in a single hearing;
· the second is where one individual is charged with multiple offences on two or more indictments all of which are prosecuted in a single hearing.
122 Both are here relevant. Henry was prosecuted, in one trial, with four others. A separate indictment was presented against each accused. In another trial, Swansson was arraigned on two separate indictments.
123 On appeal, Henry pleaded a single ground, challenging the validity of a trial so conducted. Swansson, having pleaded other grounds of appeal, sought to join that challenge.
124 The appellants relied upon a line of authority to which the Chief Justice has referred, and to which I will return. The effect of the line of authority is pithily encapsulated in R v Tagaras, unreported, NSWCCA, 9 April 1974 as "'one indictment' - 'one jury'". The line of authority is said (on behalf of the appellants) to establish, as an inflexible rule of law, that any criminal proceeding may proceed only on a single initiating process, and that any criminal proceeding which purports to proceed otherwise, involving more than one indictment (whether against a single accused, or against multiple accused), is necessarily invalid to the point of being a nullity. The Crown recognised the apparent weight of the authority that supports that proposition, and thus the inevitability of the outcome of this ground, unless it could persuade this Court of one or more of the following propositions:
· that the line of authority is of less weight than would at first appear, and is not binding upon this Court;
· that this Court can and ought to decline to follow the line of authority;
· that, even if there exists a rule (whether of law or of practice), that a trial may only proceed on one indictment, the consequence of any departure from the rule is not necessarily the nullification of the trial, but may be less dire.
· that, if the rule exists, it is open to this Court, by the application of the proviso to s6 of the Criminal Appeal Act 1912, nevertheless to dismiss the appeals.
125 It was because of the Crown's intention to argue that this Court ought not to follow its own, and other, precedents, that a five judge bench was convened.
126 I propose to proceed to deal with the questions as I perceive them to arise. Although the cases recognise the distinction between multiple accused charged on separate indictments and an individual accused charged with separate offences on multiple indictments in a single proceeding, that distinguishing feature has not ever been seen to create a relevant difference.