David Anthony SWANSSON v REGINA; Peter James HENRY v REGINA [2007] NSWCCA 67

David Anthony SWANSSON v REGINA; Peter James HENRY v REGINA [2007] NSWCCA 67

The rule requiring 'one indictment, one jury' in criminal proceedings is an established rule of law in New South Wales; its contravention results in a fundamental defect rendering trials conducted contrary to it a nullity. Convictions entered as a result of such trials must be quashed and cannot be remedied by the proviso in s6(1) of the Criminal Appeal Act 1912, as the defect goes to the root of the proceedings. The Court is empowered to order a new trial but should not, in the circumstances, proceed to determine other grounds of appeal if the trial was a nullity.

Jurisdiction
Australia
Judgment Date
21 March 2007
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Determination of Appeal Against Conviction
Outcome
Appeals allowed; convictions quashed; new trial ordered for one appellant; leave to amend grounds of appeal granted for the other.
Legal Topics
['indictment Procedure' 'jury Procedure' 'criminal Appeals' 'nullity' 'miscarriage of Justice']
['criminal Law' 'criminal Procedure'] ['indictment Procedure' 'jury Procedure' 'criminal Appeals' 'nullity' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal Determination of Appeal Against Conviction

Legal Issues

  1. 1 ['Whether the trials and convictions of the accused were a nullity due to the trials proceeding on more than one indictment' "Whether the 'one indictment, one jury' principle is a binding rule of law or practice" 'Whether the error can be remedied by the application of the proviso in s6(1) of the Criminal Appeal Act 1912 (NSW)' 'Whether the Court can order a new trial or consider other grounds of appeal']

Ratio Decidendi

The rule requiring 'one indictment, one jury' in criminal proceedings is an established rule of law in New South Wales; its contravention results in a fundamental defect rendering trials conducted contrary to it a nullity. Convictions entered as a result of such trials must be quashed and cannot be remedied by the proviso in s6(1) of the Criminal Appeal Act 1912, as the defect goes to the root of the proceedings. The Court is empowered to order a new trial but should not, in the circumstances, proceed to determine other grounds of appeal if the trial was a nullity.

Court Disposition

Appeals allowed; convictions quashed; new trial ordered for one appellant; leave to amend grounds of appeal granted for the other.

Orders

  • ['In the matter of Henry: Appeal allowed; Convictions and sentences quashed; A new trial be held.' 'In the matter of Swansson: Leave to add additional ground of appeal granted.' 'Per Simpson and Howie JJ: Quash each conviction.']