Ground 2: The failure of counts 13 and 14 to aver the mental element relied on by the Crown to prove the charges, gave rise to a miscarriage of justice warranting intervention by the Court of Criminal Appeal.
100 Section 178BB of the Crimes Act reads as follows:
"(1) Whosoever, with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years.
…"
101 The indictment included a cover sheet which indicated that there were two counts under s 911(b)(1) of the Corporations Act (Cth), four counts under s 1041F Corporations Act (Cth) and eight counts under s 178BB Crimes Act. Counts 13 and 14 were two of the counts under s 178BB. Although counts 7 to 12 were correctly pleaded counts 13 and 14 omitted any reference to the mental element of the offence.
102 Count 13 was pleaded as follows:
"… with intent to obtain for himself or another person, namely Progressive Investments Securities Pty Limited or Capital Investments Group (Aust) Pty Limited, a financial advantage, namely the opportunity to earn commission by selling financial products offered by [the wholesaler], did make a false statement to [the wholesaler], namely that he, or companies associated with him, held a valid and operative licence or authorisation under Corporations Act that permitted him to sell those financial products."
103 Count 14 followed the form of count 13 but pleaded, "did concur in making a false statement" rather than "make a false statement."
104 Accordingly, the pleading for counts 13 and 14 did not include any reference to the "knowledge" of the appellant or his alleged "reckless disregard" of the truth of the statement made. The omissions were plainly an oversight which was not appreciated by the judge or counsel at the trial. The other six counts under s 178BB were pleaded as "reckless disregard" by the appellant as to the truth or falsity of the relevant statements. Although not pleaded in this form counts 13 and 14 were addressed by counsel and the trial judge in similar terms to counts 7 -12. No one at the trial was under any misapprehension as to the charges the appellant actually faced or the case presented by the prosecution in support of those charges. However, on appeal it was submitted that the defect rendered the indictment void with respect to counts 13 and 14 and the trial on those counts a nullity and for that reason the convictions on counts 13 and 14 should be quashed.
105 An indictment is defective at common law and liable to be quashed if objection is taken before trial, if it fails to identify an essential factual ingredient of an offence. Contemporary Australian statements of the relevant principles can be found in John L Pty Ltd v The Attorney General for the State of NSW (1987) 163 CLR 508 at 519-520 and Lodhi v R [2006] NSWCCA 101; (2006) 65 NSWLR 573.
106 In R v Mai (1992) 26 NSWLR 371; Hunt CJ at CL said (at 377):
"… the indictment … must identify the nature of the offence and the manner in which it had been committed. 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.
…
It must identify the essential factual ingredients of the offence charged" (see also R v Saffron (1988) 17 NSWLR 395 at 445; Lodhi v The Queen (2006) 199 FLR 303 at [78]-[94], [97]-[109].
107 However, the common law has long accepted that in some circumstances the jury's verdict will cure a defect in the indictment. Before the trial process was addressed in any detail by the Parliament the courts recognised that, although there may be a deficiency in an indictment and for that reason an injustice may have occurred, if the elements of the offence were correctly identified during the trial and after proper instruction the jury returned a verdict of guilty, that verdict would not be quashed on appeal.
108 In Heymann v The Queen (1873) LR 8 QB 102 the indictment alleged a conspiracy to breach the Debtors Act. The offence was complete if the defendant had agreed with another to remove his goods in contemplation that he may be declared a bankrupt. The indictment, although pleading a breach of the Debtors Act, did not plead that the asserted agreement was made in contemplation of a declaration of bankruptcy.
109 The court held that the guilty verdict cured the defect. Although finding that a demurrer to the indictment may have been upheld Blackburn J speaking for the court said at p 105:
"Where an averment which is necessary for the support of the pleading is imperfectly stated, and the verdict on an issue involving that averment is found, if it appears to the court after verdict that the verdict could not have been found on this issue without proof of his averment, then, after verdict, the defective averment, which might have been bad on demurrer, is cured by the verdict."
110 The Queen v Rebecca Goldsmith (1873) Law Rep 2 Cr 74 was a case in which it was alleged that the defendant obtained goods by false pretences. The indictment did not set out the alleged false pretence. The pleading followed the form of the statutory offence and for that reason it was held that the conviction was sound. However, the court accepted that the common law as expressed in Heymann would also cover the situation.
111 Bramwell B said:
"The objection here raised is that the indictment shows no offence. In strictness the objection was taken at the wrong time. A question as to an indictment may be raised by demurrer, by motion to quash, or by motion in arrest of judgment. Had the present objection been taken on demurrer or motion to quash, I am not prepared to say the count would have been good. But upon principle, the defect, if any, is cured by verdict. The rules is laid down in Serjeant Williams' note to Stennel v Hogg : 'Where there is any defect, imperfection, or omission in any pleading, whether in substance or in form, which would have been a fatal objection upon demurrer; yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission is cured by the verdict by the common law.' In the present case, if on the trial of the principal offender, false pretences had been proved amounting only to future promises or the like, is it to be supposed that the judge would have allowed the case to go to the jury? The case of Rex v Mason has been cited; but I agree with the remark of Mellor J, in Heymann v The Queen , that that case and the others like it are virtually overruled.
We must take it that the objection raised at the trial was made with a continuando, so as to be available as a motion after verdict in arrest of judgment; otherwise we should have no jurisdiction. My ground of decision is that the defect, if any there be, is cured by verdict. If the matter were one in our discretion I should not arrest the judgment." (citations omitted)
112 In The Queen v Stroulger (1886) LR 17 QBD 327 the defendant was charged with corrupt practices in relation to a general election. It was proved at the trial that he had promised money to two voters to induce them to vote. The proven facts constituted a breach of the Corrupt and Ilegal Practice Prevention Act 1883. However, beyond alleging that the defendant was guilty of corrupt practice no particular offence was pleaded.
113 The majority of the court (Lord Coleridge CJ, Denman, Day and Mathew JJ) agreed that the pleading was defective. If objection had been taken before trial it would have been quashed. However, Lord Coleridge CJ, Field and Mathew JJ held that the defect was cured by the verdict. The Chief Justice said:
"But the further question remains, whether this conviction can stand. It is familiar knowledge that there are many cases is which the conviction will stand, though there is an objection to the indictment, which, if taken in time, would have been fatal. The reasons for this are well stated in the notes to the case of Stennel v Hogg where it is said: 'With respect to the former case it is to be observed that, where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection on demurrer, yet, if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission, is cured by the verdict by the common law; or, in the phrase often used upon the occasion, such defect is not any jeofail after verdict.' It seems to me that the principle there laid down covers a case like the present, where, an offence being charged in general terms which include various specific offences, the case proceeds, in fact, on one particular charge, and the jury find a verdict of guilty; and that it may be presumed in such a case that the jury found the verdict on the charge actually preferred, and that the judge would not have directed the jury to give, and the jury would not have given, the verdict, unless there had been satisfactory proof at the trial of such charge. It seems to me that, as the prisoner has been found guilty of 'corrupt practices,' and that is a term which includes the offence of which he was really accused, for which he was in fact tried, and on which the jury in truth gave their verdict, all the elements necessary to sustain such a conviction after verdict were present, and therefore that the conviction should be affirmed."
114 The Queen v Aspinall (1876) 2 QBD 48 also involved an alleged conspiracy. The conspiracy proved at trial was to defraud persons buying shares in a company. However, the indictment contained no averment of an intention to injure anyone beyond an intent to deceive the Stock Exchange.
115 Brett JA (with whom Mellish LJ concurred) applied Heymann and held that the verdict cured the defective averment in the indictment. However, he emphasised that it was only an averment that was imperfectly stated which would be cured:
"The rule is not applicable to the case of the total omission of an essential averment. If there be such a total omission, the verdict is no cure. And when it is said that the verdict could not have been found without proof of the averment, the meaning is, the verdict could not have been found without finding this imperfect averment to have been provided in a sense adverse to the accused.
Another rule is, that in considering an indictment on a writ of error, and, therefore, after verdict, it is not necessary for, and it is not open to, the Court to inquire what facts were proved at the trial. The question is, whether assuming the facts which are accurately alleged in the indictment to have been proved as alleged, and the facts which are imperfectly alleged to have been proved in a sense adverse to the accused, the charge would be supported. If it could, the indictment, on error after verdict, is sufficient. But if, assuming both the above-mentioned allegations of facts, the perfect and imperfect allegations, to be proved respectively as before stated, the charge would not be supported for want of the existence of some other allegation, affirmative or negative, which has been totally omitted, then the indictment is bad notwithstanding the verdict. The verdict is only to be taken as conclusive evidence that the facts alleged in the indictment accurately and inaccurately were proved in a sense adverse to the accused. If those facts so proved would not support the charge, the indictment is bad on a writ of error."
116 Heymann was considered and applied in this Court in R v Morris (NSWCCA Gleeson CJ, McInerney and Ireland JJ, 25 November 1996, unreported) where Gleeson CJ said (at p 12) "the test is whether or not the verdict which the jury reached must have included a finding on the element which the Crown failed to allege".
117 Heymann was also applied without discussion by this Court in R v Gervaise; R v Preece (NSWCCA, Smart, Grove and Studdert JJ, 13 November 1997, unreported).
118 The English cases were again considered by this Court in R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407 where the jury returned a verdict of guilty in respect of a number of counts on an indictment alleging that the appellant had sexual intercourse with a person above the age of 10 years and under the age of 14 years. For at least part of the period in which the offences were allegedly committed the offence was defined as having intercourse with a person above the age of 10 years and under the age of 16 years. The Crown alleged that at any relevant time the complainant was aged less than 14 years.
119 The Crown relied on the English cases in support of a submission that any defect pleaded in the counts had been cured by the verdicts of guilty, because the jury must have been satisfied on each of the counts that all the elements of the offence charged had been proved. This Court held that because the counts pleaded the actual age of the complainant, which was always less than 14 years, the pleading was not defective. However, the court also accepted that the jury's verdict could cure any defect in the indictment because the jury must have been satisfied that all the elements of the offence had been proved (at [25]).
120 The common law adopted a strict attitude to the pleading of both civil and criminal cases. The harshness of the common law was exemplified by the lack of any capacity to amend an indictment (see Sir Matthew Hale, The History of Pleas of the Crown (1736) vol 2 at 193; William Eden, Principles of Penal Law, 2nd ed (1771) at 181-182; Joseph Chitty, A Practical Treatise on the Criminal Law (1816) vol 1 at 169-170).
121 However, the common law approach has been significantly ameliorated by statute. Statutory provisions allowing the amendment of defective indictments in New South Wales were first introduced by the Criminal Law Amendment Act 1883. It followed legislation enacted in England in 1853, referred to as the Criminal Justice Amendment Act (1853). In New South Wales similar provisions are now found in Part 2 of the Criminal Procedure Act 1986 ("the Act"). Section 16 of the Act confines the deficiencies in a pleading which may void an indictment. Subsection (1) is concerned with all criminal proceedings, subsection (2) is limited to those dealt with summarily. The section is in the following terms:
"(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:
(a) for the improper insertion or omission of the words "as appears by the record", "with force and arms", "against the peace", "against the form of the statute" or "feloniously",
(b) for want of an averment of any matter unnecessary to be proved or necessarily implied,
(c) for want of a proper or perfect venue or a proper or formal conclusion,
(d) for want of any additional accused person or for any imperfection relating to any additional accused person,
(e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence,
(f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name,
(g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,
(h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened,
(i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions - for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director.
(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:
(a) any alleged defect in it in substance or in form, or
(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.
Note. An adjournment may be obtained under section 40 where there is a variance between the evidence adduced and the offence charged in the application or order."
122 Section 16(2) is the statutory re-enactment of s 65(1) of the Justices Act 1902 (NSW) which was in turn taken from the Juries Act in England which was designed to limit the objections which could be taken to the initiating process in a summary criminal trial. It is not of present relevance.
123 The statute confines the opportunity for a formal objection to be taken to an indictment where there will be trial by jury (s 17). It also provides that an indictment may be amended (s 20). Provided it can be amended without injustice "the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case" (s 21). The order for an amendment may be made at any stage during the trial (s 21(4)).
124 There are some circumstances in which a defect in an indictment is such that it cannot be cured by an amendment or the jury's verdict. These issues were discussed by this Court in R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 and subsequently in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10. In both cases the appellant had been convicted on an "indictment" which had not been signed by a person holding the relevant authority as required by s 126 of the Criminal Procedure Act. This Court on each occasion held that the "indictment" was invalid. The requirement in s 126 that an indictment be signed by a person holding the appropriate authority is an essential element of the validity of every indictment in that it invests the relevant court with its jurisdiction. The requirements of s 126 are strict: Halmi at [2]; Janceski at [98].
125 Two members of the court in Janceski considered whether the doctrine of waiver was available to save the conviction. Janceski had pleaded not guilty and without objection was tried on the "indictment". Wood CJ at CL and Howie J held that waiver was not available "where the court's jurisdiction was conditional on the existence of a valid indictment" (Wood CJ at CL [209]). Invalidity of an indictment cannot be waived (Howie J at [277]).
126 In Rockdale Beef Pty Ltd v The Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 the Court of Appeal considered the situation where charges were laid under s 10(2) of the Occupational Health and Safety Act 2000 but the charge failed to allege all of the essential matters relevant to the offence. The charge was said to be defective in that it failed to assert a critical element of the offence, namely that the plant was controlled by the defendant "in the course of a trade, business or other undertaking" (s 10(3)(d)). The critical issue was whether this defect in the pleading invalidated the proceeding.
127 Basten JA with whom Mason P agreed concluded that the defect did not deny the court jurisdiction.
128 Spigelman CJ was of a different view. His Honour held that because the charge omitted an essential legal element of the offence the proceedings were not proceedings for "an offence against the relevant Act and the Industrial Court accordingly had no jurisdiction to hear and determine the charge: Rockdale [34]. The Chief Justice relied on this Court's decision in Lodhi v R (2006) NSWCCA 121; (2006) 199 FLR 303. Lodhi was concerned with a challenge to an indictment brought before the jury was empanelled. Although Lodhi had entered a plea of not guilty the trial had not proceeded and no verdict had been entered.
129 Rockdale Beef was of course a summary proceeding and s 16(2) of the Criminal Procedure Act was engaged. However, the majority reasoning is of more general application. Of particular significance for present purposes is the conclusion Basten JA expressed at [123] to the effect that a failure to plead the elements of an offence does not always make an information invalid and the proceedings may not be a nullity. His Honour said (from [122]):
"122 At a time when the trial court lacked an express power to amend an information, there was an important distinction to be drawn between the provision of particulars (which could be ordered) and amendment of the information itself. That distinction is no longer of importance and s 16(2) should not be read down as if it were. Rather, the relevant principle is that there may be defects which are capable of remedy and defects which are not. The appropriate classification should be considered on a principled basis, and not by use of labels, seeking to distinguish between "essential legal elements" and "essential factual particulars". Cases where an objection in relation to the specification of an essential element of an offence has been upheld, in circumstances where a legislative regime exists, equivalent to that under the Criminal Procedure Act , were not identified in the course of the present proceedings. None of the cases discussed so far was such a case. However, an example, referred to by Sperling J in Taylor , was Ex parte Thomas; Re Otzen (1947) 47 SR(NSW) 261. That case involved an offence under the National Security Regulations, by supplying a declared service at a price exceeding the maximum permitted under the regulation. The Full Court held that the charge of supplying bottled beer together with corkage for an undivided remuneration (at a rate above the maximum rate) was not an offence under the regulation. Jordan CJ stated (p 263):
"It was sought to get over this by appeal to s 65 of the Justices Act , 1902, and a contention that there had been a mere variance. But it has been decided over and over again that a person cannot be convicted upon an information that does not charge an offence, and that s 65 does not meet such a case: Ex parte Lovell … . The proper course, when this occurs is to amend the information so as to make it allege an offence known to the law and triable before the magistrate; and for the magistrate then to allow any adjournment reasonably necessary to give the defence an opportunity of meeting the charge."