[2005] NSWCCA 2 and R v Janceski (2005) 64 NSWLR 10
[2000] HCA 13
Bounds v R [2006] HCA 39
80 ALJR 1380
Braysich v The Queen (2011) 243 CLR 434
[2011] HCA 14
Byrnes v The Queen (1999) 199 CLR 1
Source
Original judgment source is linked above.
Catchwords
[2005] NSWCCA 2 and R v Janceski (2005) 64 NSWLR 10[2000] HCA 13
Bounds v R [2006] HCA 3980 ALJR 1380
Braysich v The Queen (2011) 243 CLR 434[2011] HCA 14
Byrnes v The Queen (1999) 199 CLR 1[1999] HCA 38
Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693[1904] HCA 35
Coleman v Power (2004) 220 CLR 1[2004] HCA 39
CSL Australia Pty Ltd v Formosa [2009] NSWCA 363261 ALR 441
CSR Ltd v Eddy (2005) 226 CLR 1[2005] HCA 64
Director of Public Prosecutions v CurrieDirector of Public Prosecutions v Daniels (a pseudonym) [2021] VSCA 272
FX v RGX v R [2020] NSWCCA 189
Jago v District Court of New South Wales (1989) 168 CLR 23[1989] HCA 46
JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320[2014] NSWCA 228
Likiardopoulos v The Queen (2012) 247 CLR 265[2012] HCA 37
Masson v Parsons (2019) 266 CLR 554[2019] HCA 21
Maxwell v The Queen (1996) 184 CLR 501[1996] HCA 46
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
[2002] HCA 11
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
[2015] HCA 37
O'Reilly v Commissioners of the State Bank of Victoria (1982) 153 CLR 1
[1983] HCA 47
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1
[2018] HCA 4
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
[1998] HCA 28
R v Cockrell [2015] QCA 73
250 A Crim R 364
R v Halmi (2005) 62 NSWLR 263
[2005] NSWCCA 2
R v Janceski (2005) 64 NSWLR 10
[2005] NSWCCA 281
R v Swannson
R v Henry (2007) 69 NSWLR 406
[2007] NSWCCA 67
Ravarotto v The Queen [2012] VSCA 263
Re Wakim
ex parte McNally (1999) 198 CLR 511
[1999] HCA 27
Rizeq v Western Australia (2017) 262 CLR 1
E Bartley (Appellant)
D Staehli SC
R Glover (Respondent)
Judgment (13 paragraphs)
[1]
Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Cockrell [2015] QCA 73; 250 A Crim R 364
R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2
R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281
R v Swannson; R v Henry (2007) 69 NSWLR 406; [2007] NSWCCA 67
Ravarotto v The Queen [2012] VSCA 263
Re Wakim; ex parte McNally (1999) 198 CLR 511; [1999] HCA 27
Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
Selim v R [2006] NSWCCA 378
Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204
Taylor v Attorney-General for the Commonwealth (2019) 268 CLR 224; [2019] HCA 30
The Queen v The Justices of Kent (1873) LR 8 QB 305
Texts Cited: S Pack, "Judicial review of decisions not to prosecute" (2020) 49 Australian Bar Review 440
Category: Principal judgment
Parties: Mehmet Ozgen (Appellant)
Regina (Respondent)
Representation: Counsel:
T Woods; E Bartley (Appellant)
D Staehli SC; R Glover (Respondent)
[2]
Solicitors:
Mitchell & Co Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2014/00351853
Publication restriction: Nil
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 07 August 2019
Before: Pickering SC DCJ
File Number(s): 2014/00351853
[3]
Judgment
LEEMING JA: Mehmet Ozgen appeals from his convictions on two counts on an indictment presented on behalf of the Commonwealth Director of Public Prosecutions charging him with jointly attempting to possess unlawfully imported border controlled drugs contrary to s 307.5 read with ss 11.1 and 11.2A of the Criminal Code. Those two counts related to some 655 kilograms and 1383 kilograms, respectively, of pure methylamphetamine and 3,4-methylenedioxymethamphetamine (MDMA) which had been replaced by inert substances as part of a controlled operation. The indictment also contained a third count, namely, the supply of a relatively trivial quantity (some 55 grams) of MDMA contrary to s 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW). The trial judge (Pickering SC DCJ) directed the jury not to return a verdict on that count. Even so, it is the third count which is central to the main ground of this appeal, which involves a question of law alone and is therefore available as of right: Criminal Appeal Act 1912 (NSW), s 5(1)(a).
[4]
Overview of factual background
The appellant and three others, Philip Ian Bishop, Solomone Vukici and Jason Victor Drollet, were jointly charged on counts 1 and 2 of the same indictment. The Crown case was that the drugs the subject of those counts were imported from Germany in a shipping container, before being intercepted by Australian Border Force officials and replaced, on 11 November 2014, with an inert substance. The shipping waybill described the contents of the container as 260 packages of "used household goods and personal effects", and the Crown tendered emails to a German freight company (Transport Krumpf GmbH) from a man who claimed he was relocating from Hamburg to Sydney. The waybill described the consignee as Chess Moving Sydney. The container arrived in Sydney later in November, and was transported to Chess Moving's yard in Blacktown. The premises had a bonded yard but at some stage the container appears to have been moved outside that yard, while still remaining in Chess Moving's premises.
It was not suggested that the appellant was involved in the placing of illicit drugs in the boxes in Germany, or the transport of those boxes by sea to Australia. The Crown case was that the appellant was involved in the unpacking of the container at the Blacktown premises and transport of the boxes (now containing an inert substance) to another warehouse.
Late on the night of 28/29 November 2014, a convoy of vehicles, including a Honda Accord owned by the appellant, drove to Chess Moving's yard. The container was opened, and the 113 boxes were replaced with dummy boxes acquired from Bunnings Warehouse and filled with clothes purchased from a charity store. The 113 boxes were taken by a Thrifty hire truck to a warehouse in Smithfield, with the appellant driving four of the men to that location in his Honda Accord. There the boxes were unloaded. At around 3.15 that morning, Australian Federal Police arrested the appellant and Messrs Vukici and Drollet at the Smithfield warehouse. The fourth co-accused, Mr Bishop, was an employee of Chess Moving.
There was evidence that some of the CCTV footage at Chess Moving, including the camera facing the doors of the container, had not been recorded. Even so, a deal of evidence connected the appellant to the operation. In addition to the appellant's car, which was pictured in tollway cameras and arriving at Chess Moving's premises at 12.49am on 29 November, there was the following:
1. a key ring with the appellant's key, a tag for his gym and a key to the Smithfield warehouse was found in a bag at Smithfield;
2. the appellant's iPhone contained searches for Bunnings, boxes, and shipping containers, and
3. a Blackberry device with traces of the appellant's DNA was found in the same bag as his key ring, and it contained numerous text messages suggesting a high level of awareness of the offence.
[5]
Ground 1 - were the trial and the convictions nullities?
Ground 1 of the appeal is that:
"The trial and the convictions are nullities because the indictment upon which the trial proceeded was not a valid indictment."
On 2 August 2019, during the summing up after a trial lasting some seven weeks, Mr Staehli SC, who appeared for the Crown at trial and in this Court, informed the District Court that the third count could not proceed because the officer who signed it purportedly "for and on behalf of the New South Wales and Commonwealth Directors of Public Prosecutions" was not in fact authorised by the former.
Section 126 of the Criminal Procedure Act 1986 (NSW) relevantly provided:
"(1) An indictment shall be signed -
(a) by the Attorney General, the Solicitor General or the Director of Public Prosecutions, or
(b) for and on behalf of the Attorney General or the Director of Public Prosecutions by -
(i) a Crown Prosecutor,
(ii) a Deputy Director of Public Prosecutions, or
(iii) a person authorised under subsection (2) to sign indictments.
(2) The Director of Public Prosecutions may, by order in writing, authorise a person to sign indictments for and on behalf of the Director."
The District Court and this Court were each told that the indictment originally presented at an earlier trial of the appellant and his co-accused had been signed by another officer within the Office of the Commonwealth Director of Public Prosecutions, an Assistant Director, who had been specifically named in an authorisation issued by the New South Wales Director of Public Prosecutions pursuant to s 126 of the Criminal Procedure Act. The first trial was aborted. A fresh indictment was presented, apparently because of some handwriting on the original indictment. The original indictment was not made available to this Court, but there is no reason to doubt that it was, like the second, a single page document identical in every respect including a blank date, save for the identity of the officer signing it, as indeed Mr Staehli stated without objection from the Bar table. The Assistant Director was on leave and her replacement was acting in her position. The consequence was said to be that although her replacement was authorised by the Commonwealth Director of Public Prosecutions, she was not authorised by the State Director of Public Prosecutions.
It is unclear on the material provided to this Court on what basis the conclusion of want of authority was reached. In particular, it is unclear whether that conclusion took into account s 49(8) of the Interpretation Act 1987 (NSW), which deems the person for the time being acting in an office to be the delegate in certain cases. It is also unclear whether it took into account reasoning such as that which persuaded a majority of the High Court in O'Reilly v Commissioners of the State Bank of Victoria (1982) 153 CLR 1; [1983] HCA 47, where a notice was not issued by the Commissioner of Taxation or his expressly authorised delegate, but by another officer in the department generally authorised to do so. A recent illustration in a criminal context of the operation of these principles is Director of Public Prosecutions v Currie; Director of Public Prosecutions v Daniels (a pseudonym) [2021] VSCA 272. The Victorian Court of Appeal held that a requirement that a notice of appeal in a Crown appeal be "signed by the [Director] personally" was satisfied notwithstanding that the Director did not herself apply pen to paper, but instead authorised her Associate to affix her electronic signature to the document.
[6]
Validity
Turning first to the anterior question of validity, the issue is whether the effect of the conceded non-compliance with s 126 rendered the indictment invalid to confer jurisdiction on the District Court. That is a question of construction, turning on an analysis of the text and purpose of the Criminal Procedure Act. The requirement that the indictment be signed by an authorised person is imposed by statute, and the consequences of its breach are determined by statute. It follows that the present is not a case where reliance can be placed on the outcomes in Halmi and Janceski. Indeed, Mr Woods, who appeared in this Court but not at trial for the appellant, properly and candidly conceded that Halmi and Janceski would be decided differently today, in light of the enactment of s 16(1)(i). The real question posed by the reasoning in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 is whether the Criminal Procedure Act - now including s 16(1)(i) - evinces an intention to invalidate an indictment signed in circumstances such as the present by an officer within the Commonwealth Office of Public Prosecutions who has not been authorised by the State Director.
On the one hand, the inclusion of paragraph (i) marks a signal relaxation of what had been held to have been an indispensable requirement of criminal process. That tends to favour the proposition that what in many ways is a less significant defect in authorisation such as occurred in the present case should not be treated as fatal.
On the other hand, as Mr Woods submitted, given the insistence of the criminal law upon punctilious compliance with formalities in this area, s 16(1)(i) supports the conclusion that the present non-compliance with s 126 led to invalidity because the exception in s 16(1)(i) should not be construed any broader than it is. In effect that is an expressio unius argument, bolstered by the general insistence on strict compliance with formality in prosecutions for indictable offences.
To my mind, the resolution of this point would involve an analysis of the proper scope of the remedial purpose evinced by s 16(1)(i); cf Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 which also concerned amending legislation designed to overturn the effect of a particular decision. But full submissions were not exchanged on this issue, and it is unnecessary to resolve whether s 16 in the form it took following the insertion of s 16(1)(i) has the effect that the indictment was valid to confer jurisdiction on the District Court to try all three counts notwithstanding the noncompliance with s 126.
[7]
Severability, not validity
Rather, in light of the fact that the appellant was only convicted on the first and second counts, the principal submission advanced by the Crown was that there was no defect in authority in relation to those counts. That amounts to a submission that the conceded defect in respect of the State offence in count 3 is severable from the Commonwealth offences in counts 1 and 2.
Against this, the appellant submitted that the indictment was nonetheless a nullity by reason of the non-compliance with s 126:
"The fundamental submission I'm making is that an indictment really must be entirely valid as to authority. I regret that I haven't been able to locate very much material which addresses a situation like this because it's unusual."
As it turns out, there is authority, including appellate authority squarely on point.
The appellant emphasised that the want of authority was "jurisdictional". This was a reference to s 130(2) of the Criminal Procedure Act, which connects the presentment of the indictment (scil, a valid indictment) with the court's jurisdiction:
"The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial."
Prior to the enactment of s 130, the District Court's jurisdiction in a criminal matter only arose upon the presentation of an indictment: Jago v District Court of New South Wales (1989) 168 CLR 23 at 36; [1989] HCA 46; JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228 at [15].
No such issue concerning the severability of an indictment arose in R v Halmi or R v Janceski. In those cases, the person who signed the indictment was not authorised to sign any of the counts. Nor did the issue arise in R v Swannson; R v Henry (2007) 69 NSWLR 406; [2007] NSWCCA 67, upon which the appellant also relied, notwithstanding the significance attributed in that case to the long established rule of criminal procedure that there can only be one indictment. As the Crown submitted, the applicable legal principles are found in different decisions from those on which the appellant relied. Decisions dealing with invalidity speak to a different, and anterior, issue from that which is raised by the Crown's principal submission.
[8]
More fundamental reasons for dismissing ground 1
I start with statute. Section 21(1) of the Criminal Procedure Act 1986 (NSW) provided that:
"If of the opinion that an indictment is defective but, having regard to the merits of the case, 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."
Subsection (4) confirmed that an order under the section could be made either before trial or at any stage during the trial.
The appellant's attention was drawn to s 21 during the hearing. If s 21 permitted an amendment to the indictment to delete count 3, then that would tell against the appellant's submission that the presence of count 3 at the time the indictment was presented rendered the entire trial a nullity. That led to the appellant submitting that s 21 could not be available in a case where one of the counts on an indictment was not authorised.
As Johnson J explained in FX v R; GX v R [2020] NSWCCA 189 at [163], s 21 was formerly s 64 of the Criminal Procedure Act and before then was s 365 of the Crimes Act 1900 (NSW). These provisions ultimately derive from the legislation known as Sir John Jervis' Acts adopted in New South Wales in 1850 (by 14 Vic No 43) which conferred inter alia a general power of amendment to cure defects of form. The legislation as initially enacted was directed to summary procedure, but now is framed in terms of "indictments" which are defined widely to include "any other process or document by which criminal proceedings are commenced": s 15(2).
There was no amendment of the indictment in the present case. Rather, after rejecting an application to discharge the jury (a decision not challenged on appeal), the trial judge directed the jury not to return a verdict. But it was prima facie open to the Court to amend the indictment by deleting the third count, subject to questions of prejudice insofar as evidence had been adduced relevant only to that count. Subsection 21(4) confirmed that the power was available even so late as the judge's summing up.
The point of referring to the unexercised power to amend is that it undermines the submission that the presence of count 3 in the second indictment was a defect infecting the entire indictment. The premise of s 21 is that the indictment is defective. I see no basis to conclude that s 21 would not have been available in the present case. The notion of a broad power to amend the indictment by removing the defect is inconsistent with the indictment being incapable of conferring jurisdiction on the District Court in respect of any of the charges. It is consistent only with indictments being severable.
[9]
The District Court was exercising federal jurisdiction
Hitherto I have acceded to the approach taken by the parties and put to one side the federal aspect of this trial and this appeal. But the federal character of the prosecution is in fact the starting point. "[A] fundamental question necessary to be considered in every case [is] the identification of the character of the jurisdiction being exercised by the court - whether State or federal": CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; 261 ALR 441 at [22].
I think there was a single matter in the exercise of federal jurisdiction invested in the District Court of New South Wales pursuant to s 77(iii) of the Constitution (I return to this below). The investment was effected primarily by s 68(2) of the Judiciary Act 1903 (Cth), which provides:
"(2) The several Courts of a State or Territory exercising jurisdiction with respect to:
...
(c) the trial and conviction on indictment;
…
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth."
Thus s 68(2) invests the "like jurisdiction" with respect to the trial and conviction of the appellant of offences contrary to the Commonwealth Criminal Code as that Court had in relation to the trial and conviction of offences against New South Wales statutes. Section 166 of the District Court Act 1973 (NSW) provides that that Court has the criminal jurisdiction conferred or imposed on it by, inter alia, the Criminal Procedure Act 1986 (NSW), and s 46(2) of the latter statute provides that the District Court has jurisdiction in respect of all indictable offences, save for those prescribed by the regulations. Hence s 68(2) applied.
It was on that basis that s 68(1) of the Judiciary Act made applicable State laws to the prosecution in the District Court. That subsection relevantly provides:
"The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
...
(c) their trial and conviction on indictment;
...
shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section."
[10]
Proposed ground 2
Proposed ground 2 is that the guilty verdict on count 1 is unreasonable. The ground is that Crown had failed to exclude a reasonable hypothesis of innocence, "namely that the applicant was fully aware of the MDMA the subject of Count 2 but unaware of the methamphetamine and therefore not party to an agreement in relation to Count 1". This ground requires leave, but I shall continue to refer to the appellant.
For the purposes of this argument the appellant accepted that there was ample evidence of his awareness of and participation in an attempt to possess a large quantity of MDMA. This was summarised above. The appellant's vehicle was photographed as part of a convoy driving from the location of the container to the warehouse, a keyring with a key to the appellant's vehicle and a key to the warehouse was found at the latter, his personal iPhone was found at the warehouse, in flight mode (suggesting a desire to disguise its location), and it contained searches for Bunnings, boxes, and topics relating to shipping containers.
Hundreds of unencrypted messages were tendered, extracted from a Blackberry device which had traces of the appellant's DNA on it. There are difficulties relating to some of these messages, including whether the "handle" was one used by the appellant, and limitations upon the use of others in light of the evidentiary rulings. For present purposes, it will suffice to observe that the appellant submitted that "the messages suggest that [he] was expecting to be able to access significant quantities of MDMA in the coming days". The appellant was referring to messages such as "Won't have the m till the door fee is paid brother so will be a few days. Probably midweek next week"; "I can get m to get us started if u can sell pills straight away ??" and "Not gonna have this m tonight. Can get from a mate. Half is 1500". The appellant submitted that this was "consistent with his guilt on Count 2, but says nothing about Count 1".
The appellant maintained that there was no evidence which excluded the possibility that "his culpable involvement was limited to the drugs the subject of Count 2".
The appellant acknowledged that it was not necessary for the Crown to establish knowledge in relation to the specific identity of the drug. That concession was correctly made. However, the appellant maintained that:
"[I]t was incumbent upon the prosecution to establish agreement in respect of the two separate charges of Commonwealth offending. The charges particularized different drugs. The prosecution had to establish either one agreement about two separate quantities of drugs or two separate agreements. On either basis the jury must have had a reasonable doubt as to the applicant's guilt in relation to the drugs the subject of count 1."
[11]
Proposed ground 3
Proposed ground 3 is that the primary judge erred in declining to leave to the jury the defence under s 307.5(4) of the Criminal Code, namely, that the appellant did not know that the drugs were unlawfully imported. Application to do so was made at the conclusion of the evidence, both on behalf of the appellant and on behalf of a co-accused, Mr Vukici. Mr Vukici had given evidence that he did not have any knowledge of or intent to deal with any illegal drug at all. The appellant did not give evidence at trial.
Section 307.5(4) provides that the offence in s 307.5(1) does not apply "if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported". It was accepted that s 307.5(4) is a "true" defence, placing an onus upon the accused person in accordance with s 13.4, although he or she need only establish absence of knowledge on the balance of probabilities: see s 13.5.
The appellant relied both at trial and in this Court upon the following matters:
1. In 300 or so messages on the Blackberry said to have been used by the appellant, including numerous messages showing clearly that he was involved in the supply of drugs, there was not a single mention of anything about the importation of drugs;
2. There was evidence that the drugs in question are both manufactured in large quantities in Australia and transported covertly within Australia;
3. The container to be accessed was not in a bonded warehouse (that is, restricted by customs or immigration);
4. There was nothing on the appellant's iPhone to establish any knowledge of the fact the drugs had been imported; and
5. Mr Vukici gave evidence that there were never any discussions among the alleged perpetrators (including the appellant) that the goods were imported or that the container contained anything from overseas.
The appellant emphasised with respect to the messages on the Blackberry, that one would expect that there would be messages regarding the fact of the importation if that had been known to him, particularly having regard to the nature and extent of the messaging between the parties involved.
The primary judge observed, in his reasons declining to leave this defence to the jury, that:
"You cannot establish a positive state of mind of Mr Ozgen, even on the low threshold that is required to get over that evidentiary and legal burden by pointing to an absence of evidence. It proves nothing about Mr Ozgen's state of mind to simply say that there are not messages in the BlackBerry device that talk about importation. That cannot establish anything in relation to what he was thinking at that time specifically in relation to the statutory defence. It is simply the different nature of what you have to, as an evidentiary onus, achieve in a trial."
[12]
Orders
For those reasons, while there should be grants of leave in respect of grounds 2 and 3, the appeal must be dismissed.
PRICE J: I agree with Leeming JA and the orders he proposes.
HAMILL J: I have had the considerable benefit of reading in draft the reasons for judgment of Leeming JA. I agree that the appeal against conviction must be dismissed, essentially for the reasons provided by Leeming JA, but in particular at [1]-[11], [15]-[16], [19], [21], [27]-[41] and [52]-[56] (with respect to ground 1), [64]-[69] (with respect to ground 2) and [75]-[79] (with respect to ground 3).
In relation to ground 1, the appellant's submission rose or fell on the interrelated contentions that (i) the indictment was wholly invalid, (ii) the proceedings were a nullity in their entirety, and (iii) the absence of authority in the officer of the Commonwealth Director of Public Prosecutions (CDPP) to sign an indictment charging an offence under New South Wales law meant that the District Court lacked jurisdiction to determine any and all of the offences, including the federal offences. That is my paraphrasing of the appellant's submissions under ground 1, rather than the precise terms in which those submissions were couched.
I am unable to accept any of those contentions. This has nothing to do with what counsel described as the "technical" nature of the ground of appeal. In my assessment, the ground is not technical; it is fundamental, albeit that it has nothing to do with the factual merit of the appellant's case. As the cases of R v Halmi, [1] R v Jancesksi, [2] R v Swannson; R v Henry [3] demonstrate, the criminal law guards closely the right of an accused person to a strict adherence to the rule of law, including in terms of the jurisdiction of the trial court and the requirement for a valid indictment to invoke that jurisdiction. However, neither R v Janceski nor R v Halmi is determinative of the present case and the appellant did not suggest otherwise. Neither of those cases involved an indictment containing counts which were otherwise validly brought. Nor does my conclusion rest on the amendment to s 16(1) of the Criminal Procedure Act 1986 (NSW) set out by Leeming JA at [16]. The respondent conceded (correctly in my view) that the amendment could not save the impugned indictment if the appellant's point was otherwise sound.
[13]
Endnotes
(2005) 62 NSWLR 263; [2005] NSWCCA 2.
(2005) 64 NSWLR 10; [2005] NSWCCA 281.
(2007) 69 NSWLR 406; [2007] NSWCCA 67.
[2006] HCA 39; (2006) 80 ALJR 1380.
[2015] QCA 73; (2015) 250 A Crim R 364.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 November 2021
The MDMA which gave rise to the third count was found at the appellant's home, which he shared with his parents and his brother, by New South Wales police officers executing a search warrant later on 29 November 2014.
Mr Drollet was also convicted. The jury could not reach a verdict in relation to Mr Vukici. Unlike the appellant, Mr Vukici gave evidence, including that he did not know the contents of the boxes. Mr Bishop also gave evidence at the trial and he was acquitted. It will be necessary to return to some of the evidence at trial when dealing with the remaining grounds of appeal, but it is convenient to proceed immediately to the appellant's principal submission.
These decisions reflect applications of what Griffith CJ once described as "that very great authority", The Queen v The Justices of Kent (1873) LR 8 QB 305, in which the reasons of each of Blackburn J, Quain J and Archibald J may be summarised thus: "We ought not to restrict the common law rule, qui facit per alium facit per se, unless the Statute makes a personal signature indispensable": Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693 at 701; [1904] HCA 35.
Like so much in this appeal, the question was not argued but was left as an assumption favourable to the appellant. So be it. But this Court's decision today is not authority for the proposition that the acting Assistant Director was not authorised pursuant to s 126(1)(b)(iii) to sign the indictment insofar as it charged the appellant with a State offence. Cases are only authorities for what they decide: Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79]; CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13].
I also pass over the point raised during argument by Hamill J during submissions, namely, that the District Court had jurisdiction to try the appellant on the first indictment, and somehow lost that jurisdiction when a document which according to the appellant was a nullity was later presented. That is a necessary aspect of the appellant's submission, but no reliance was placed upon it by the Crown. This Court's decision is not authority for any proposition concerning the effect of the presentation of an invalid indictment following the presentation of a valid indictment in identical terms.
A somewhat similar position had previously arisen in R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2 and R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281. There the indictments had been confined to State offences, and the member of the private Bar who had signed them was not authorised under s 126(2), although no doubt she was instructed to prosecute. This Court found that the absence of authority to sign the indictment led to the trials and convictions being nullities. In consequence, the Legislature enacted s 16(1)(i) of the Criminal Procedure Act which relevantly provided:
"(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds -
…
(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.
The Commonwealth Director of Public Prosecutions accepted that s 16(1)(i) did not apply to the second indictment in this case. As I understand it, that was because the officer who signed the replacement indictment was not someone who "has been instructed to prosecute the proceedings to which the indictment relates on behalf of the [NSW] Director of Public Prosecutions". I interpolate that one reading of the exchange of letters between the Commonwealth Director of Public Prosecutions and the State Director of Public Prosecutions suggests that the position might not have been regarded as clear beyond argument. Nonetheless, consistently with the stance taken at trial, the argument in this Court proceeded, once again favourably to the appellant, on the basis that s 16(1)(i) did not apply. Once again, this Court's decision is not authority for any proposition as to the construction of s 16(1)(i), and I should not be taken to be expressing a view on the point.
The appellant maintained that the indictment was a "nullity" as a consequence of the acting Assistant Director not being authorised to sign the indictment insofar as it charged count 3. He accepted that the consequence of his submissions finding favour would be a new trial on all three counts. He prayed in aid the fact that the question was one of jurisdiction, that the criminal law has regarded punctilious compliance with indictments as essential, and generally supported the reasoning in Halmi and Janceski. He emphasised that although in the application to the present facts, the submission might be regarded as technical in the extreme, for the quantity of illicit drugs found in his home upon arrest is dwarfed by the very large quantity of illicit drugs which the jury found he believed he was unloading and transporting to a warehouse - some two tonnes - but said that it could just as easily be the other way, and the more serious counts on an indictment signed by an unauthorised officer.
Two points may be made immediately. The first is that these examples go nowhere. The appellant's point is a legal one. If it is good, his convictions will be quashed and there will be a retrial. The success or failure of the appellant's submission has nothing to do with the underlying merit or absence of merit in his case. The orders he seeks - quashing the outcome of an otherwise regular trial - do not turn on factual merit. Rather, they are closely tied to the rule of law in this country, and the importance that those charged with offences be prosecuted by a legally authorised prosecutor in a court with authority to decide those charges. That is why the guilty verdicts in Halmi and Janceski were quashed. That is also why appeals were allowed in Byrnes v The Queen (1999) 199 CLR 1; [1999] HCA 38 and Bond v The Queen (2000) 201 CLR 213; [2000] HCA 13, with the result that those offenders only served sentences which on the merits had been considered sufficiently inadequate to warrant appellate intervention.
The second is that references to "void" and "nullity" tend not to assist legal analysis. Those labels invoke rhetoric rather than analysis, and thereby tend to presuppose the conclusion sought to be established. Although this appeal concerns the decision of an inferior court, rather than an administrative decision, the point made by Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [46] remains apt:
"In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as 'void', 'voidable', ' invalid ', 'vitiated' or, even, as 'nullities'. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision."
If the appellant is right, then his convictions should be quashed because the District Court lacked jurisdiction to try him on the second indictment, and the entry of his convictions and the imposition of sentence were attended by jurisdictional error, and indeed had never been effective, as Gageler J explained in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [63].
There are two distinct arguments bearing upon the validity of the convictions on counts 1 and 2, to which I directed the parties' attention during the hearing. The position resembles litigation which challenges the validity of a statute, or other instrument. In such cases, ordinarily the first issue is whether the statute or instrument is valid, and only if it is not does one examine whether it may be read down or severed.
A closely comparable decision is that of the High Court in Bounds v R [2006] HCA 39; 80 ALJR 1380. Mr Bounds was presented in the District Court of Western Australia on an indictment charging two offences, namely, possession of child pornography, and possession of indecent or obscene articles. He was convicted on both counts but the conviction on count 2 was quashed by the Court of Criminal Appeal, including on the basis that this less serious offence was not triable on indictment (the Courts of Petty Sessions had exclusive jurisdiction over summary offences except in certain limited circumstances, none of which were available in that case). By his further appeal to the High Court, Mr Bounds sought to quash his conviction on the first count. The principal basis on which those submissions rested was that evidence had been admitted relevant to count 2 which would not have been admissible on the trial confined to count 1. However, a separate application was made at the hearing of the appeal which closely bears upon the present facts. The position is described in the joint judgment of Gleeson CJ, Hayne, Callinan and Crennan JJ at [11]:
"At the hearing of the appeal to this court, the appellant sought leave to amend his notice of appeal to allege, in effect, that because count 2 alleged an offence in respect of which the District Court had no jurisdiction, the whole indictment should be treated as a 'nullity'. The proposed ground has insufficient merit to warrant granting the leave that is sought. The leave sought should be refused. It is enough to say of the contention that there is no doubt that the District Court had jurisdiction to deal with the offence alleged in count 1 (the count alleging possession of child pornography). That count alleged an indictable offence. Joinder of a further count, which the parties now agree should not have been joined, would, no doubt, have grounded an application to quash the indictment in so far as it alleged that second count. But in so far as the indictment charged the appellant with an indictable offence, the indictment regularly invoked the jurisdiction of the District Court and, to that extent at least, the appellant's plea of not guilty required trial of the issues raised by the plea by a jury, subject to the accused making no election pursuant to Ch LXIVA of the Criminal Code for trial by judge alone." (footnote omitted)
Thus the High Court treated the Western Australian indictment as severable, sufficient to invoke the jurisdiction of the District Court in respect of the one count which was within that Court's jurisdiction, notwithstanding that the document included another count which was outside that Court's jurisdiction.
In response to the respondent's reliance on Bounds, the appellant submitted that it was about a different statutory regime, and a different kind of defect. "It's, importantly, not about a defect that is latent which the defect in this case is, and that is an important distinction." But the appellant did not articulate how the statutory regime was different in a way that mattered. While it is true that ordinarily it would be difficult for an accused person to know whether an officer who signed an indictment was authorised, the significance of the defect being "latent" as opposed to "patent" (to use the language employed in submissions) was also not articulated, although cf Selim v R [2006] NSWCCA 378 at [18]-[21].
To like effect is the decision of the Queensland Court of Appeal in R v Cockrell [2015] QCA 73; 250 A Crim R 364. The leading judgment was given by Morrison JA, with whom Gotterson JA and Jackson J agreed. There the indictment contained 19 offences, 4 offences under the Queensland Criminal Code and 15 under the Commonwealth Criminal Code. The indictment although signed by a person authorised in respect of both Commonwealth and Queensland counts, had been presented by a person who was not authorised to present the indictment in respect of the Queensland counts. There were other difficulties with the application, which was substantially out of time, and was in fact the second appeal from conviction, which may be passed over. Section 561 of the Queensland Code authorised a Crown Prosecutor or person appointed by the Governor in Council to sign and present an indictment. Morrison JA wrote in [33]:
"There is nothing in the text, or the context, of s 561 which would compel the conclusion that a lawfully signed indictment for joined charges must utterly fail if the indictment is presented by a person who is authorised to present some of the charges, but not others. The presentation of a lawfully signed indictment is the start of the arraignment procedure, as part of which the accused is called upon to plead to the charges presented. If some are not presented, albeit they have been included in a lawfully signed indictment, those particular charges have not been presented, and the accused will not be called upon to answer them." (footnote omitted)
It was not suggested by the appellant that there were any material differences in the statutory regime, and, so far as I can see, there are none. Section 561 is materially identical to s 126 of the New South Wales Criminal Procedure Act.
The Court was also taken to Ravarotto v The Queen [2012] VSCA 263, although it adds little to the above. The Victorian Court of Appeal quashed convictions on two of five counts in an indictment in part on the basis that the two federal counts were not subject to the delegation of authority by the Commonwealth Director of Public Prosecutions pursuant to s 31(1B) of the Director of Public Prosecutions Act 1983 (Cth). This a case where the Crown conceded both grounds of appeal, and it does not appear to have been submitted that the consequence of the failure of authorisation in relation to the federal counts would lead to the total invalidity of the indictment. The decision is not authority for any proposition, but the result is consistent with the Crown's submission.
What has already been said illustrates the difficulties confronting the appellant merely as a matter of authority. The passage from Bounds reproduced above rejected the proposition that the wrongful joinder of one count on an indictment is fatal to the remainder of the indictment, and upheld the proposition that a regular invocation of the District Court's jurisdiction by a count which was authorised is sufficient to require the trial of issues on that count. On one view that is dispositive of the appeal. The appellant's response to Bounds was to emphasise the summary nature of the reasoning. It is true that it involved the peremptory dismissal of an application to amend the notice of appeal, and perhaps therefore is to be equated to the position of a decision refusing special leave: see Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [52], [112] and [119]. It is not necessary to express a view on this last point.
Even if Bounds were not dispositive, Cockrell is squarely on point. I fail to see any relevant distinction between an officer not being authorised to sign some of the charges on an indictment, and not being authorised to present some of the charges on an indictment. The facts and legislation are otherwise materially identical.
Cockrell is a fully reasoned decision of an intermediate appellate court. It was not suggested that it was plainly wrong. I think, respectfully, that its result is clearly correct. It would be wrong in light of the existing authority bearing upon the point the parties chose to exchange submissions on to conclude that, contrary to the reasoning and outcomes in Bounds and Cockrell, the indictment charging the appellant was wholly bad because of the inclusion of count 3. On that basis, ground 1 should be dismissed.
But it should not be thought that the outcome of this ground of appeal is merely dictated by authority. Its fate rests on more fundamental matters, albeit they were not argued by the parties.
Thus s 68(1) made State laws governing the content of an indictment applicable to the federal charges faced by the appellant. It did so "so far as they are applicable". But it was not necessary for s 68(1) to render applicable s 29 of the Criminal Procedure Act authorising multiple charges in an indictment, because federal law already spoke directly to that issue. Section 4K(3) of the Crimes Act 1914 (Cth) provided:
"Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character."
Unquestionably s 4K(3) authorised counts 1 and 2 to be joined in the same indictment. There is no reason why s 29 of the Criminal Procedure Act might not apply (through being picked up by s 68(1)) so as to authorise the inclusion of a third offence, contrary to New South Wales law, in the same indictment, if it otherwise satisfied the section.
The critical point is this. If as the appellant contends the prosecutor was not authorised to sign and present the indictment insofar as it contained a State offence, that at most was a failure to comply with New South Wales statute. New South Wales statutes only applied to govern the District Court's exercise of federal jurisdiction because federal law made them applicable: Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23; Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 at [30]. How could the non-compliance with New South Wales law produce the result that the indictment authorised by s 4K(3) of the Crimes Act 1914 (Cth) was ineffective to invest jurisdiction in the District Court? How could the failure to comply with a State law which was only applicable through being picked up by s 68(1) somehow invalidate the otherwise effective investment of federal jurisdiction by s 68(2) in respect of the indictment containing two counts authorised by s 4K(3)? To my mind, those questions have only to be asked to appreciate that they have but one answer.
The position might well be different if the prosecutor were not authorised to prosecute the federal offences, but were authorised to prosecute the State offence. The longstanding legislation governing authority to prosecute federal offences is summarised in Taylor v Attorney-General for the Commonwealth (2019) 268 CLR 224; [2019] HCA 30. But that is not this case. A non-compliance with State law could only invalidate an indictment authorised by federal law if some other federal law treated the non-compliance as vitiating. I cannot see how State law could deny the efficacy of the investment of jurisdiction by federal law; if State law purported to do so, it would be inconsistent with federal law and inoperative pursuant to s 109 of the Constitution, and I see no basis for s 68(1) somehow producing a different result.
I introduced this portion of the analysis with my view that there was a single "matter" for the purposes of Chapter III of the Constitution. That is because although the 55 grams of MDMA were located in a different place, and at a different time, from the much larger quantities of inert substances giving rise to counts 1 and 2, they fell short of being a claim which was "completely disparate", "completely separate and distinct" or "distinct and unrelated", to use the language endorsed in Re Wakim; ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [140]. The MDMA in the appellant's possession was found in the immediate aftermath of the appellant's arrest and as part of the same investigation. To my eyes at least, it falls within the same substratum of fact, bearing in mind the broad approach as to "matter" taken in the decisions of the High Court in the 1980s. By way of example, 26 counts of fake trading over a 26 day period constituted a single matter: Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 at [6]. I acknowledge that the ambit of a matter may be a question of practical judgment as to which minds may differ. But if contrary to the above there was a separate matter for constitutional purposes, then that only reinforces the conclusion that the want of authority to sign the indictment in respect of count 3 does not infect the validity of the indictment in respect of counts 1 and 2.
To my mind, these latter considerations of federal jurisdiction are the starting point, not the conclusion. However, they were not the way the matter was argued, and the foregoing reasons do not, accordingly, have the force of a decision on a fully argued point. Had I otherwise been persuaded of the success of the appellant's submissions, I would have directed further submissions on the federal aspects of this ground. On the view I have formed, it is unnecessary to do so.
Ground 1, being the principal ground of the appeal, must be dismissed.
The appellant prayed in aid the vast quantity of inert substance imported. He submitted that "[i]f the quantity of MDMA had not been so large then it would be easier to infer that the applicant must have known about the methamphetamine".
I disagree. The Crown had a discretion in how to charge the appellant. It was open to the Crown to prosecute the appellant on a single "rolled-up" charge, of attempting to import some two tonnes of border-controlled drugs, comprising some 655 kilograms of methamphetamine, and some 1383 kilograms of MDMA. It was also open to the Crown to charge and prosecute the appellant with two counts in accordance with the indictment. The Crown not uncommonly has a choice, even bearing in mind that the charges laid should fairly reflect the criminality alleged by the Crown. The decision as to the particular charge to be laid or prosecuted has been held to be unreviewable: Maxwell v The Queen (1996) 184 CLR 501 at 534; [1996] HCA 46; Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 at [37]; for a helpful analysis see S Pack, "Judicial review of decisions not to prosecute" (2020) 49 Australian Bar Review 440.
There was compelling evidence that the appellant was party to an agreement to possess all of the boxes unpacked from the container at Blacktown, where they were replaced with boxes containing clothes, and taken to the warehouse at Smithfield. There was compelling evidence that the appellant believed that the contents of the boxes were illicit drugs. The appellant correctly concedes that the Crown did not have to establish that he believed the particular illicit drug. It was not incumbent on the Crown to establish that the appellant believed that there were two distinct illicit drugs in the boxes which he took from Blacktown to Smithfield.
The artificiality of proposed ground 2 is reflected in the fact that no such submission was advanced at trial. It will be noted that this ground involves a concession that there was, at least, a strong Crown case against him on count 2. Instead, counsel who appeared for the appellant at trial (who did not appear in this Court), conflated counts 1 and 2 in his final address:
"In relation to counts 1 and 2, and I've pointed out many of the parts of the evidence which have inconsistencies, discrepancies, inadequacies, the lack of an expert evidence in relation to Blackberry 051 and I submit that there will be some grave suspicion in relation to counts 1 and 2.
But as his Honour will direct you, suspicion does not replace evidence."
For those reasons, I have concluded that this ground fails at the threshold. It was no part of the Crown case to prove that there were two separate agreements, or one agreement involving the importation of two border-controlled drugs.
While I would grant leave to permit this ground to be advanced, including leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), it must be dismissed.
The appellant disagrees. He submitted that:
"The statement highlighted above is an erroneous statement. The absence of evidence in circumstances where one would expect to find evidence is capable of supporting a positive state of mind. The error becomes even more clear when one looks at admissions by silence. The Crown can prove a positive state of mind of an accused (to the heavy standard of proof beyond reasonable doubt) on the basis of an absence of evidence. If someone makes an allegation to an accused and the accused does not respond, then that can support an inference that the accused had a positive state of mind. It is the circumstances in which there is an absence of evidence that provides that inference."
I would accept that in some circumstances, the absence of evidence where one would expect to find evidence is capable of supporting a positive state of mind. If say it would have been natural to respond to one of the Blackberry messages by reference to the container coming from overseas, but the messages made no reference to that, it might be capable of supporting a finding that the Blackberry user was unaware that the container had come from overseas. But that will depend on the particular circumstances of the case.
The difficulty with this ground is that it is quintessentially factual, and turns on the particular matters relied upon. There was no occasion in the Blackberry messages to say anything about the provenance of the container or the boxes within it. The fact that the messages do not mention importing is thus neutral to the issue of whether the appellant believed they were imported. The fact that drugs are manufactured and distributed in Australia is equally neutral. The fact that the container had been moved outside the bonded warehouse section of the Blacktown premises might conceivably have been relevant if there were any evidence that the appellant knew anything about the geographical layout of the premises, or the processes of releasing goods from the control of customs, but there was no evidence of that. The absence of messages on the appellant's iPhone and the positive evidence of Mr Vukici that importation was not discussed is also neutral on the issues for the reasons already given.
The foregoing is, in substance, identical to the reasons given by the trial judge in declining to leave open this defence. The matters on which the appellant relied were incapable, on the facts of this case, to establish anything about his absence of knowledge of importation.
The trial judge correctly withheld the defence from the jury.
The lack of authorisation in the CDPP officer to bring the proceedings for the state offence, meant that the trial with respect to that offence was not conducted according to law. The (second) indictment did not seize the District Court of jurisdiction in respect of that charge and the trial on that charge was, leaving aside the point made by Leeming JA at [20], a nullity. Judge Pickering was correct to decline to take a verdict in relation to that charge.
However, that did not mean that the District Court lacked jurisdiction to hear the Commonwealth charges or that the whole of the indictment was invalid. As Leeming JA demonstrates at [33]-[37], this conclusion accords with the approach taken by the High Court in Bounds v R [4] and the Queensland Court of Appeal in R v Cockrell. [5] It also gives effect to the legal reality that, whatever the fate of the state charge, the District Court was seized of jurisdiction to conduct the trial of the commonwealth offences for the reasons given by the Presiding Judge at [49]-[54].
The fact that the argument was not raised at trial is not an obstacle to the appellant raising ground 1 because it is a matter going to jurisdiction. The transcript records that when the issue was raised by the Prosecutor towards the end of the trial, the parties and the Judge were anxious to adopt the correct approach. The applicant submitted (at trial, but not on appeal) that the Judge should direct the jury to return a verdict of not guilty in relation to count 3. That argument was correctly rejected. It was then argued that the jury should be discharged due to the prejudice arising out of what had occurred. The discharge application was refused and no issue was taken with this decision on the appeal. Similarly, no issue was taken on appeal with the trial Judge's earlier decision refusing an application to sever count 3 and his Honour's related ruling that some of the evidence in relation to count 3 was also admissible in the prosecution case on counts 1 and 2. Finally, no arguments were made as to the correctness of the decision to instruct the jury that no verdict would be taken on count 3.
I have nothing to add to what Leeming JA has written with respect of the other grounds. I am unable to find merit in either. The appeal should be dismissed.