REGINA v Darko JANCESKI

SPIGELMAN CJ : On 16 May 2002 John Malufuka was violently assaulted by a group of men. He suffered multiple injuries including the loss of an ear and becoming blind in one eye. The Appellant was identified as one of four men who participated in the attack. There was no evidence that he himself inflicted any particular injury.

On indictment he was charged with committing the offence of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm contrary to s33 of the Crimes Act 1900. The Crown put to the jury an alternative offence, not included on the indictment, of maliciously inflicting grievous bodily harm, contrary to s35 of the Crimes Act 1900. The Appellant was found not guilty of the principle charge but guilty of the alternative charge. He appeals against his conviction.

There are five grounds of appeal as follows: “1. The trial and conviction of the appellant are nullities as the indictment on which the trial proceeded was not a valid indictment. 2. The trial judge erred in admitting into evidence the photographic identification of the appellant by the victim, John Malufuka. 3. A miscarriage of justice was occasioned by the failure of the trial judge to give adequate warning to the jury in relation to the photographic identification. 4. A miscarriage of justice was occasioned by the failure of the trial judge to direct the jury in relation to the possibility that the appellant had withdrawn from the joint criminal enterprise by the relevant time. 5. A miscarriage of justice was occasioned as a result of the learned trial judge’s direction to the jury that they could rely on the blow to the victim’s ear as the grievous bodily harm when this was not the Crown case.” Background Facts

The victim spent the evening of 15 May in the company of his girlfriend at a hotel in Port Kembla. After they left the hotel his girlfriend was driving a car and the occupants of another vehicle threw objects, on the evidence bottles, at them. Malufuka told his girlfriend, Ms Castro, to follow the car and she complied. On his evidence he saw the first car parked near a house, being the only house in the vicinity. The car in which he was driving stopped at his request. He got out of the car and as he walked towards the other car four men came running out of the front yard of the house. He subsequently identified the four men as persons known to him, being Kevin Ison, Joseph Ison, Chady Eid and the Appellant. On the Crown case, the assault can be described as occurring in three phases.

In the first phase, Eid threw a club lock at Malufuka hitting him on the head. Then the other three converged on him.

In the second phase, Kevin Ison hit him with a shovel, which removed his ear, and Joseph Ison struck him with a pinch bar, which he blocked with his arm. Mr Malufuka said that at the time he received the blow to the ear the Appellant was standing there with a steel bar (T 41.35). He also said that after the blow to his ear “all three of them … just started belting me” (T 41.46-50). He gave no evidence that Eid participated in this phase of attack.

Mr Malufuka said that he then ran back to his girlfriend’s car and got into the passenger seat and his girlfriend returned to the driver’s seat. The two Ison brothers attacked the car with a steel bar and a shovel. He said that Joseph Ison pulled him out of the car and struck him in the eye with a steel bar. He gave no evidence that the Appellant or Eid participated in this third phase of the attack. Nor was there any suggestion in his evidence that the Appellant had withdrawn.

Ms Castro gave evidence which differed in some particulars, but was generally corroborative of Mr Malufuka’s evidence.

Ms Castro identified Eid as the person who threw the club lock. She also said three other males, whom she did not identify, were involved in the attack. On her evidence the three other males “continued to hit” the victim (see T 435.14).

Ms Castro went on to say: “I could see the whole three males hitting him about the head and body, they were hitting him all over the place.” (T 435.36-38)

Accordingly, there was evidence from both Mr Malufuka and Ms Castro that the Appellant was involved in the actual assault upon the victim during what I have described as the second phase, in the course of which the victim lost his ear.

Ms Castro also said that she asked Eid to intervene to stop the attack. He refused.

Ms Castro gave evidence about the third phase of the attack, after Mr Malufuka came back to the car. At first only two males continued to attack him. She gave the following evidence capable of constituting a withdrawal from the joint criminal enterprise at a point prior to the injury to the eye by at least one of the other two, i.e. the Appellant or Eid. She said: “Q. And did he make it to the car? A. Well as he was trying to get to the car the two males, the same two males that ran from the front yard continued to hit him, they didn’t stop and I remember one of the males saying, stop it, get into the car, get out of here but I know it wasn’t the two that were hitting him because they didn’t stop hitting him the whole entire time. Q. All right, so are you saying one of the other males? A. Yes. Q. Do you know if it was Chady Eid? A. I’m not sure, I don’t know. Q. So it could have been him or it could have been some, another male? A. Yes. Q. And who were they referring to when they said stop it? A. To the two males that were hitting John.” (T 436.38-57)

She then went on to give evidence at T 437 that the same two males continued to attack the car. However, she also gave evidence which did implicate the Appellant in this phase of the attack: “…John got back out of the car because I knew that he didn’t want them to hurt me, that’s the only reason why he got out of the car and that’s when he was out of the car and that’s when the three males and when I mean three males, it wasn’t including Chady, it was the other three, they continued to hit him …”

In submissions to this Court counsel for the Appellant said that the evidence of Ms Castro to the effect that the Appellant was involved in the third phase of the attack could not be accepted beyond reasonable doubt because it was “not consistent with the evidence of John Malufuka who referred to being attacked only by Joseph Ison and Kevin Ison”. There is no such inconsistency. The evidence was there capable of being accepted. It remained a question for the jury.

As indicated above, the Appellant and Eid were found guilty of the lesser alternative charge, which did not include the element of an intention to inflict grievous bodily harm. The two Ison brothers, who actually inflicted the wounds to the ear and the eye, were found guilty of the charge on the indictment. The jury decided that the participation of the Appellant and Eid extended to a criminal enterprise which caused grievous bodily harm, but that the joint enterprise did not encompass the element of intention. The Indictment

The following are the relevant steps: (i) The Appellant was committed for trial by way of a paper committal on 20 November 2002 on the charge contained in subsequent indictments; (ii) On or about 16 December 2002, a Crown Prosecutor found a bill for the charge; (iii) On 16 December, an indictment was signed by a Crown Prosecutor; (iv) The matter came on for trial in the District Court on 25 August 2003. The Appellant was arraigned before his Honour Judge Nicholson SC on a joint indictment charging him and the three other accused with the charge. (v) Mr Michael Fox, Crown Prosecutor, who appeared for the Crown, presented a further indictment, in the same terms as (iii), signed by himself and dated 25 August 2003 (“the Fox indictment”); (vi) The jury was unable to reach a verdict in the trial before his Honour Judge Nicholson SC and a new trial was ordered on the same charge; (vii) On 23 February 2004 the second trial commenced before her Honour Judge Tupman. Ms Traill, a barrister at the private bar, was briefed to prosecute for the Crown. She presented an “indictment” signed by herself (“the Traill indictment”), in the same terms as the Fox indictment.

The Traill indictment, on which each of the four accused stood trial, was, relevantly, in the following form: “That … Darko JANCESKI On 16th May 2002 at Cringila in the State of New South Wales, maliciously inflicted grievous bodily harm to John Malufuka, with intent to do grievous bodily harm.”

It was signed by Ms K Traill above the printed characterisation: “Crown Prosecutor, On behalf of the Director of Public Prosecutions”

The case turns on s126 of the Criminal Procedure Act 1986 (“the Act”) which provides, relevantly, that an indictment shall be signed by a person authorised by the Director of Public Prosecutions to do so.

There was no order in writing pursuant to s126 authorising Ms Traill to sign the indictment.

I note the following exchange on the second day of the trial: “Her Honour: And Ms Trail, you’re not a Crown prosecutor are you? Crown Prosecutor: Not normally. Her Honour: You’re of the private bar. Crown Prosecutor: Yes Your Honour.” (T 83.45-52)

The Appellant contends that, in accordance with authority in this Court, the indictment on which he was tried was invalid and, accordingly, that his conviction was null and void. The Decision in Halmi

In R v Halmi [2005] NSWCCA 2 this Court, in a judgment of Bell J, with whom Simpson and Buddin JJ agreed, set aside the conviction of the Appellant on the basis that an indictment signed by Ms Traill was invalid. The Appellant submits in this Court that Halmi is indistinguishable and correct. The Crown seeks to distinguish Halmi . Alternatively it submits that it is wrong. In the further alternative it invokes two arguments not advanced on behalf of the Crown in Halmi . First, the Crown seeks to rely on the de facto officers doctrine. Secondly, it relies on the proposition that the Appellant waived any irregularity by pleading to the indictment.

In Halmi , as in this case, the parties agreed that the relevant test was that enunciated by the High Court in Project Blue Sky Inc v The Australian Broadcasting Authority (1998) 194 CLR 355.

In her judgment Bell J set out ss16, 20, 22, 126 and 127 of the Criminal Procedure Act 1986 and Pt 53 cl 10D of the District Court Rules 1973. The critical steps in her Honour’s reasoning were as follows: “31 Section 126 deals with the authority by which criminal proceedings are commenced in an enactment that governs the conduct of criminal trials. In the appellant’s submission, the section evinces a clear legislative purpose that non-compliance with its requirements results in invalidity. 32 In support of this contention the appellant noted the provisions of s 16, which sets out a number of defects that do not result in invalidity. The absence of signing by a person authorised to do so is not one. 33 The appellant also noted subs 126(3), which presumes the regularity of the signature on an indictment. This was said to be a further pointer to invalidity in the case of an indictment that is not signed by an authorised person since were it otherwise there would be no occasion for the presumption. 34 I accept the appellant’s submissions with respect to the effect of s 126. I consider that the legislative purpose of the provision is to ensure that criminal proceedings are properly commenced by persons having authority so to do. The absence of the signature of an authorised person on an indictment renders the indictment invalid.”

In Halmi there was a first indictment, coincidentally signed by Mr Fox, which charged the accused with a different offence. However, the case turned on the second and third indictments. The second was signed by a Crown Prosecutor, Mr Favretto. That was in the same terms as the subsequent Traill indictment, save that the Favretto indictment charged the Appellant jointly with another. As a Crown Prosecutor, Mr Favretto, like Mr Fox in the present case, was an authorised person to sign an indictment. In Halmi , the Favretto indictment was on the court file. However the Traill indictment was read by the clerk on the arraignment and details of the trial had been endorsed on it, rather than on the Favretto indictment.

In Halmi the Crown submitted that proceedings were validly before the District Court by reason of the Favretto indictment and that the subsequent indictment signed by Ms Traill did not terminate the proceedings pursuant to the Favretto indictment. In this regard Bell J said: “39 The Crown contended that the Favretto indictment had been presented either by being handed up in court on 6 September 2002 or by being filed in the registry in accordance with s 127 of the Act and Pt 53 cl 10D of the [District Court Rules]. It bears the stamp of the registry dated 6 September 2002. The Crown acknowledged on the hearing of the appeal that it was necessary to show that the appellant had consented to the substitution of the Favretto indictment (charging him with supply) for the Fox indictment (charging him with knowingly taking part in supply) in light of the provisions of s 20 of the Act (there being no question of leave having been given by the court to the amendment, including by substitution, of the Fox indictment). 40 The provisions of s 127 of the Act and Pt 53 cl 10D of the [District Court Rules] admit of the presentation of an indictment by filing it in the registry subject to service of it on the accused person or his legal representative within the time specified. It is not apparent that cl 10D is concerned with the substitution of an indictment under s 20 of the Act. That may only occur by the prosecutor with the leave of the court or the consent of the accused. There is no question of leave having been granted to the filing of the Favretto indictment in substitution for the Fox indictment. The Favretto indictment cannot be taken to have been substituted for the Fox indictment merely by it being filed in the registry.”

Reliance was also placed on certain steps taken in the District Court in the context of an application for separate trials during which the indictment, as it then existed, was handed up. Justice Bell said in this regard: “44 The appellant had been arraigned and joined issue with the Crown on an indictment that charged him with knowingly taking part in the supply of prohibited drugs. The Favretto indictment charged the appellant with the offence of supply prohibited drug. Section 25(2) of the DMTA creates two offences: the supply of prohibited drugs in an amount not less than the stated amount and knowingly taking part in the supply of prohibited drugs in an amount not less than the stated amount. They are distinct offences. The Crown did not contend to the contrary. Indeed, the Crown drew our attention to the decision of this Court in R v Deng (unreported) 17 December 1996 in which Hunt CJ at CL explained the difference between the two offences.”

Her Honour concluded: “50 In the Crown’s submission the arraignment of an accused person is oral. It was submitted not to be to the point that the prosecutor may have handed up the Traill indictment at the commencement of proceedings on 29 July 2003. An indictment signed by an authorised person charging the appellant with the offence to which he entered his plea was on the Court file. The recording of the particulars of the trial and the sentence on the back of the Traill indictment was submitted to amount to no more than a clerical error. 51 It is not in issue that a person holding appointment as an acting Crown Prosecutor had found a bill for the supply offence. However, finding a bill and signing the indictment are distinct processes. Section 126 requires that the indictment be signed by an authorised person. To my mind there can be no question that the Traill indictment was the indictment that was presented when the appellant was called for trial on 29 July 2003 (it was the indictment that charged the appellant alone with the supply offence). The Favretto indictment may have been contained in the Court file but the Court had not granted leave for its substitution for the Fox indictment and the appellant had not consented to that course. Assuming for present purposes that the appellant by his plea to the Traill indictment consented to the substitution of this indictment for the Fox indictment, it was the Traill indictment that was the initiating process upon which the appellant joined issue with the Crown. It is the Traill indictment that constitutes the record of the Court: R v Reardon [2004] NSWCCA 197; R v Lapa (No 2) (1995) 80 A Crim R 398. In R v Stephens (1990) 48 A Crim R 323, Allen J (with whom Campbell J and Lusher AJ agreed) observed at 327: ‘What, however, constitutes the record of the District Court in relation to trials upon indictment? By long practice the record is the indictment itself. It is upon the indictment that the orders are noted. That long practice is recognised by Pt 52, r 12 of the District Court Rules 1973 (NSW) which provides: ‘12. Any judgement, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on the indictment in the proceedings, and that entry shall, when signed by the Judge, be the record of the judgement, order, sentence, direction or recommendation.’ The ‘Judge’ so referred is the judge of the District Court. Nevertheless the rule recognises the practice of noting judicial orders on the indictment. The indictment is the ‘record’ of the proceedings: Billington [1980] VR 625; Cross [1973] QB 937; (1973) 57 Cr App R 660.’ 52 In supplementary submissions the Crown contended that the fact that the trial had proceeded on the Traill indictment in the circumstances that I have set out (namely that an indictment charging the appellant jointly with the supply offence had been signed by a person authorised to sign indictments) did not occasion any prejudice to the appellant. So much may be accepted but this cannot cure a defect that goes to the root of the trial. The indictment upon which this appellant was arraigned and upon which his trial proceeded was invalid. It follows from this that the trial was a nullity. The verdict and conviction must be quashed. It is a matter for the Director to decide whether to continue the proceedings that remain pending in the District Court.” The Legislative Scheme

Section 5 of the Act states that, unless otherwise permitted or required to be dealt with summarily, “an offence must be dealt with on indictment”.

Section 8(1) of the Act provides: “8(1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions.”

Chapter 2 Pt 2 of the Act is concerned with “Indictments and other matters”. That Part includes s16 and s17. It was not suggested that either s16 or s17 is applicable to the defect identified in the present proceedings, but it is pertinent to set them out: “16 (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. (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a 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. 17 (1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn. (2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect.”

Section 22 provides that whenever an indictment is amended “the indictment in its amended form is to be treated as the indictment for the purposes of the trial and all proceedings in connection with or consequent on the trial”.

Section 166 of the District Court Act 1973, provides that the court has the criminal jurisdiction conferred upon it by, relevantly, the Criminal Procedure Act 1986.

Section 46(2) of the Act provides: “46(2) The District Court has jurisdiction in respect of all indictable offences, other than such offences as may be prescribed by the regulations for the purposes of this section.”

Chapter 3 of the Act is concerned with Indictable Procedure. Part 3 of Ch 3 is concerned with Trial Procedures. Division 2 of that Part is concerned with the Commencement and Nature of Proceedings. Sections 126, 129 and 130 are contained in this Division.

Section 126 is the critical provision in this case. It provides: “126 (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. (3) It shall be presumed, in the absence of evidence to the contrary, that an indictment signed by a person for and on behalf of the Attorney General or the Director of Public Prosecutions was signed by a person authorised to do so. (4) A certificate signed by the Director of Public Prosecutions to the effect that a specified person was authorised during a specified period to sign indictments for and on behalf of the Director is admissible in evidence in any legal proceedings and is evidence of the matters certified.”

Section 129 provides: “129 (1) In this section, relevant court , in relation to a matter, means the Supreme Court or the District Court before which the matter has been listed for trial or mention. (2) An indictment is to be presented within 4 weeks after the committal of the accused person for trial, except as provided by this section. (3) The time within which the indictment is to be presented may be extended: (a) by the regulations or (subject to the regulations) the rules of the relevant court, or (b) by order of the relevant court. (4) If an indictment is not presented within the time required by this section, the relevant court may: (a) proceed with the trial if an indictment has been presented, or (b) adjourn the proceedings, or (c) take such other action as it thinks appropriate in the circumstances of the case. (5) The prosecutor has no right to an adjournment merely because an indictment has not been presented. (6) The relevant court must, in exercising any power under this section, have regard to the fact that the Crown does not have a right of appeal if the accused person is acquitted. (7) This section does not affect the powers of the relevant court under section 21.”

Section 130 provides: “130 (1) In this section, court means the Supreme Court or District Court. (2) 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. (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled: (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial. (4) Nothing in this section requires a jury to be empanelled if the accused person pleads guilty to an offence during proceedings to which this section applies. (5) This section applies to proceedings in respect of indictments presented after the commencement of this section.”

Even prior to the enactment of s130, the District Court’s jurisdiction in a criminal matter only arose upon the presentation of an indictment. That rule is now enshrined in s130 which was enacted to overcome any doubt about the Court’s ability to make pre-trial orders. (See Jago v District Court (NSW) (1989) 168 CLR 23 at 36-37.)

It is also pertinent to note s127 of the Act which provides: “127 The regulations and (subject to the regulations) the rules of court may make provision for or with respect to the manner of presenting indictments (including by the filing of the indictment in a court registry).”

Pursuant to this section, Pt 53 r 10D of the District Court Rules 1973 provides that an indictment may be presented by the filing of a copy with the registrar, however a copy must be served within 14 days after filing. Validity of the Indictment

The issue of statutory interpretation that arises in this case turns on the purpose or intention of Parliament, in the objective sense of purpose or intention applicable in this area of the law. Parliament always intends that its procedural stipulations will be complied with. That does not mean that it intends that every failure to comply with such a stipulation has the consequence that events subsequent to the failure are invalid. It is necessary to identify a legislative intent or purpose that that be so.

In Project Blue Sky supra, the High Court authoritatively established the approach, which the parties in this case have accepted, that is applicable to such an issue: “[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the conditions. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.”

The High Court reiterated the test, after criticising the use of the terminology of “mandatory” and “directory” requirements, and said: “[93] … The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”

There is a substantial body of case law in which technical defects in an indictment have resulted in invalidity of subsequent proceedings. Whether or not a defect with respect to the requirement for signature in s126 of the Act is also of that character is the issue that has arisen in this case.

Whether an indictment which was signed by a person who did not have an authority under s126(2) of the Act results in the invalidity of the indictment, and of the subsequent verdict, must be determined on the proper construction of the twofold requirement that an indictment “shall be signed” (s126(1)) and that the signature should be that of an authorised person (s126(1)(b)(ii) and s126(2)).

In the present case, the indictment was signed. Furthermore, the indictment was signed by the prosecutor. The defect was the absence of an authority to sign.

Section 5 of the Act, quoted above, is a provision that clearly falls within the proposition adumbrated in the majority joint judgment in John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508, although directed to the particular defect involved in that case, at 520: “If an information is invalid for the reason that it fails sufficiently to identify the ingredients of the actual offence, it will be inadequate to satisfy a statutory requirement … that proceedings be commenced by information since, as a matter or ordinary construction, such a requirement can only be satisfied by a valid information.”

A similar conclusion is appropriate with respect to the use of the word “indictment” in ss8, 126, 129 and 130.

Most of the functions performed by the process which initiates criminal proceedings, particularly an indictment for serious offences, have been fully satisfied by the precise terms of the charge appearing, as it does, in the same form in the various indictments. These include: (i) Informing the court of the precise identity of the offence with which it is required to deal ( John L Pty Ltd supra at 519). (ii) Providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients ( John L supra at 519). (iii) Enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law ( S v The Queen (1989) 168 CLR 266 at 284, 285). (iv) Determining the availability of a plea of autrefois acquit and autrefois convict ( S v The Queen supra at 284; Walsh v Tattersall (1996) 188 CLR 77 at 90, 110-111).

Of particular significance for the present case is a fifth function performed by an information: (v) To invest the trial court with jurisdiction to hear and determine the prosecution ( John L supra at 519).

The issue of validity in this case most clearly arises under s130(2) of the Act. Was the general jurisdiction of the District Court with respect to indictable offences, conferred by s46(2), invoked with respect to the Appellant by the ‘presentation’ of an “indictment” within the meaning of s130(2)? For this purpose, is the signature of the prosecutor enough or is it essential that the person have actual authority to sign?

The critical significance for the fairness of the criminal justice process of the role of an indictment set out as (i) to (iv) in par [52], above, suggests that the courts will, subject to the operation of s16 and s17, readily conclude that any failure to observe a requirement which impinges on such matters was intended by Parliament to result in invalidity. In my opinion, non-compliance with s126 is not of this character. In the case of a failure which impinges on the jurisdictional purpose, identified as (v) in par [53] above, the position is not so clear in the case of a defect of the character presently under consideration. This is particularly so after a plea has been entered, let alone after a trial and verdict. I do not, in this regard, rely on any notion of waiver, on which issue I agree with Wood CJ at CL. These are relevant circumstances with respect to which the intent or purpose of Parliament must be assessed.

The issue can be tested by looking at the obverse case: if an accused had been acquitted after trial on an indictment signed by Ms Traill could s/he plead autrefois acquit or would s/he need to rely on the exercise by the Court of its discretion to prevent abuse of its process?

Once the issue is posed in this way, it is easier to conclude that Parliament did not intend that every defect with respect to the signature would result in the invalidity of the indictment, so that it was not an indictment, most relevantly, for the purposes of the conferral of jurisdiction under s130(2). Does the defect that occurred here – the absence of authority to sign – have the consequence that the indictment was invalid in that sense? There are reasons which suggest a negative answer and others which suggest a positive answer. My mind has fluctuated about where the balance lies.

Mr G Smith SC, who appeared for the Crown, submitted that the Court should approach the issue of essentiality with respect to s126 in the light of the prior common law. He submitted that at common law a signature on the indictment was not essential. He relied on the decision of the Full Court of the Supreme Court of New South Wales in R v Painter (1870) 9 SCR 277, where the Crown Prosecutor overlooked signing the indictment.

The entirety of the judgment in Painter is as follows: “The conviction is not vitiated by the irregularity. The reason why informations are signed is to identify the prosecutor; and if he prosecutes personally, his signature to the information exhibited by him does not seem to be absolutely necessary. At all events, the prisoner waived the objection by pleading to the information.”

Painter was applied by the Federal Court of Australia in Australasian Meat Industry Employees Union v R G Gilbertson (Qld) Pty Ltd (1988) 26 IR 237 at 246-247.

Mr Smith SC submitted that the reasoning in Painter reflected the position at common law and relied on the principle of statutory interpretation, that Parliament is presumed not to intend to change the common law, unless the legislation indicates that that was intended with “irresistible clearness”. Reliance was placed on the judgment of this Court in R v Downs (1985) 3 NSWLR 312 at 321-322 and on the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia in R v Khammash (2004) 147 A Crim R 129 at 148-150.

The principle of statutory interpretation relied on by the Crown is, in my opinion, now of minimal weight. It reflects an earlier era when judges approached legislation as some kind of foreign intrusion. The scope and frequency of legislative amendment of the common law, including the common law of criminal procedure, has over many decades been both wide ranging and fundamental.

In Bropho v Western Australia (1990) 171 CLR 1 the High Court referred to a principle of statutory interpretation that was based on an assumption that Parliament would not act to achieve a particular result without making its intention clear. The Court said at 18: “If such an assumption be shown to be or to have become ill founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed.”

In Bropho, the Court concluded that the presumption that legislation did not intend to bind the Crown had been so modified. The presumption relied upon by the Crown in the present case has also, in my opinion, come to be modified or, at least, diminished in significance. The test of “irresistible clearness”, or equivalent, to which some authorities refer is too stringent in contemporary circumstances.

Kirby J has often emphasised the duty of courts to obey a legislative text and has indicated that it is not permissible to adhere to pre-existing common law doctrines in the face of a statute. (See e.g. Regie Nationale des Usines Renaud SA v Zhang (2002) 210 CLR 491 at [143]-[147].) McHugh J has stated that the presumption that a statute is not intended to alter or abolish common law rights must now be regarded as weak. (See Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at [28]-[30]; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [36].) His Honour has, however, said that the presumption continues to operate with some strength when fundamental legal principles or fundamental rights are involved. (See Gifford supra at [36]; Malika Holdings supra at [28] and see also at [29]-[30] and Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; 78 ALJR 1232 at [19].)

The reasoning of McHugh J reflects a strong line of authority in the High Court that Parliament does not intend to alter or restrict fundamental rights, freedoms and immunities. This line of authority commences with Potter v Minahan (1908) 7 CLR 277 at 304 and is affirmed in Bropho v Western Australia supra at 17-18; Coco v The Queen (1994) 179 CLR 427 at 437; Electrolux supra at [21]; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [30]; Al-Kateb v Godwin [2004] HCA 37; 78 ALJR 1099 at [19], [150].

In R v Downs (1985) 3 NSWLR 312, on which the Crown relied in the present case, Lee J referred to the judgment of Potter v Minahan and noted that O’Connor J in that judgment had referred to passages in Maxwell on Interpretation of Statutes in the 4th edition. He then quoted, what his Honour said was, the parallel section in the 12th edition of that work.

The 12th edition referred to an assumption that Parliament would not “depart from the general system of law without expressing its intention with irresistible clearness”. However, the 4th edition of Maxwell On Interpretation of Statutes quoted by O’Connor J in Potter v Minahan and which has subsequently been referred to on numerous occasions with approval, is not the same as the 12th edition quoted in Downes. It referred to the improbability that Parliament would “overthrow fundamental principles, infringe rights or depart from the general system of law”. This provides a quite different focus to that suggested by the 12th edition. In R v Khammash (2004) 147 A Crim R 129, the Full Court of the Supreme Court of South Australia relied on the original text and on the judgments of the High Court in Bropho and Coco which focus on fundamental rights and principles (see at 148-149).

The provisions of the Act under consideration in the present case, relating as they do to the authority to sign an indictment, do not infringe fundamental rights and principles and, in my opinion, the principle of statutory construction upon which the Crown relies does not have any application in the present case.

The submission of the Crown set out above is based on the assumption that R v Painter supra, represents a common law doctrine. That is not, in my opinion, the case. The decision in Painter may, however, be relevant on a different basis.

In Painter, the Court was considering s25 of the Criminal Justice Amendment Act 1852 (16 Vic, No 18), on which the Crown relied, as noted in the report of Painter at 277. This is the predecessor of s17 of the Act, to the effect that an objection to “any formal defect apparent on the face” of an indictment is to be taken by demurrer or motion to quash before the jury is sworn. Painter, in my opinion, is authority for the proposition that the absence of a signature is a defect which is “apparent of [the] face” of an indictment. That is what is referred to by the word “irregularity” in the first sentence of this judgment.

The significance of an authorised signature on an indictment has been considered in England in a different, albeit analogous, statutory context. Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (UK) provided: “2(1) Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence, and where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly. Provided that if the judge … of the court is satisfied that the said requirements have been complied with, he may, on the application of the prosecutor or of his own motion, direct the proper officer [of the court] to sign the bill and the bill shall be signed accordingly. (2) Subject as hereinafter provided no bill of indictment charging any person with an indictable offence shall be preferred unless … (b) the bill is preferred by the direction or with the consent of a judge of the High Court …”

In R v Morais (1988) 87 Cr App R 9 the bill of indictment was never signed by a proper officer of the court. The English Court of Appeal held that this constituted a fundamental defect in the trial. Lord Lane CJ said: “It seems to us that this Act was intended, so to speak, to fill the gap which was left by the abolition of the grand jury. It was intended to ensure not only that the proper requirements had been fulfilled before a trial proper could start, but that also there should be a certification by way of the signature of the proper officer to indicate that he had inquired into the situation and satisfied himself that the requirements of the subsection had properly been complied with. We have come to the conclusion therefore that it is not merely a comparatively meaningless formality that the property officer’s signature should be appended, but it is, as the words of the Act itself prima facie indicate, a necessary condition precedent to the existence of a proper indictment, that the bill should be signed and only then and thereupon does it become an indictment. Therefore in the present case there was no valid indictment, there was no valid trial, no valid verdict and no valid sentence.”

His Lordship’s reference to the “words of the Act” indicating that signature is a “necessary condition precedent”, is a reference to that part of s2(1) which states that when the court officer does “sign the bill … it shall thereupon become an indictment”. The statute under consideration in the present case is quite different. (I should note that there was no reference in Morais to any equivalent of s17 of the Act.)

The issue arose again in the England and Wales Court of Appeal (Criminal Division) in R v Jackson (1997) 2 Crim App R 497. In that case, the trial court had stayed certain indictments, but made orders permitting a fresh indictment to be issued to cover the same relevant charges. The judge directed the clerk of the court to sign the new indictment, pursuant to the proviso in s2(1) of the 1933 Act, which was, relevantly, still in the same terms set out above. However, the clerk of the court overlooked the need to sign in accordance with his Honour’s directions.

The Court distinguished Morais. It held that the failure in Jackson did not invalidate the trial. The judgment referred to the fact that the earlier indictments, which were to be substituted, had been duly signed and that accordingly the “requirements of the section had been met”. That is the same as in the present case with the Fox indictment.

In Jackson the Court gave particular weight to the fact that the judge had exercised the discretion found in the proviso to s2(1). This distinguished the case from Morais. In Jackson, the court officer failed to sign the bill in accordance with the judge’s directions. Unlike Morais, the relevant decision-maker – in Jackson the judge – had turned his mind to whether or not the indictment should be signed and had decided it should be. All that was required, the Court of Appeal said, was a mere “clerical step”. The court adapted the language of Lord Lane in Morais and said that this was a “‘meaningless’ clerical ‘formality’” (p503).

The judgment of Lord Lane in Morais is perfectly consistent with the test propounded by the High Court in Project Blue Sky . So, in my opinion, is the determination in Jackson that a Project Blue Sky test would not be satisfied on the facts of that case. In each case, the Court adopted a purposive approach to statutory interpretation. In Morais the parliamentary intention that an officer turn his or her mind to the question of whether or not the requirement had been satisfied was not achieved. That purpose was, however, satisfied in Jackson by the judge. Accordingly, the purpose of the procedural requirement had, in fact, been served and in those circumstances Parliament did not intend the failure to lead to invalidity of the process.

Sections 16 and 17 of the Act, set out above, represent a list of defects which would have led to invalidity at common law but which, by longstanding statutory provision, do not do so. Although the particular defect in issue in the present case does not fall within either section, the scope of these provisions is so wide that it can support the proposition that Parliament did not intend that every other defect, however or whenever occurring, should deprive an indictment of its character as such for purposes of other sections of the Act.

The decision in Painter does suggest that the absence of any signature on the indictment would be “a formal defect on [its] face” within s17 of the Act. In this case, the Crown could not rely on s17 because Ms Traill’s signature did appear on its “face”.

It is unlikely that Parliament intended that an indictment on which no signature of any kind appears would be valid after the jury is sworn, by force of s17, but would be invalid if there was a signature, by a prosecutor who did not have authority to sign. It may be, as Howie J suggests, that s126 has the effect that s17 must be interpreted differently to its predecessors so that the absence of a signature is not now to be regarded as a “formal defect” within the section. It is not necessary to decide this point. Even if there be an incoherence in this respect, it remains only one factor to be weighed in the balance.

There are two other factors which tend to support a conclusion upholding the validity of the conviction: the position of Ms Traill and the Fox indictment.

Ms Traill appeared on behalf of the Director of Public Prosecutions pursuant to the provisions of s21 of the Director of Public Prosecutions Act 1986. That Act was a cognate piece of legislation with the Act presently under consideration. She was instructed to appear in the case by the very repository of the power conferred by s126(2).

A second factor is the existence of the Fox indictment. That was the basis of the first trial. It was signed by a person authorised to do so. It remained on the Court file. It was not, however, the document upon which the trial proceeded. With respect to s130(2), the pre-condition for jurisdiction that a valid indictment be ‘presented’ was satisfied, but not the pre-condition that the Appellant should be arraigned on that indictment.

Section 20 of the Act, which is concerned with amendment of indictments after presentment, refers to “the substitution of an indictment”. There is no express provision for ‘substitution’, but the replacement of one indictment by another renders the former irrelevant to the subsequent trial. ( R v Taylor [2003] NSWCCA 194.) The Crown’s submission in this Court that Taylor decided that that later indictment had not been substituted for the first is the opposite of what was in fact decided. In the present case also the Traill indictment was substituted for the Fox indictment.

The Crown submitted to this Court that, in substance, the Appellant was arraigned and tried on the Fox indictment, of which the Traill indictment was simply a copy. Plainly that did not happen in either substance or form. (See R v McNamara (No 2) [1997] 1 VR 257 esp at 268-270; R v TSR (2002) 5 VR 627 at [3]-[4], [34], [38].) There can only be one indictment in any one trial. (See R v Landy [1943] VLR 73; Munday v Gill (1930) 44 CLR 38 at 87; R v Tagaras NSWCCA (Unreported, New South Wales Court of Criminal Appeal, McClemens CJ at CL, Begg and Slattery JJ, 9 April 1974); R v Howard (1992) 29 NSWLR 242 at 247-248.)

However, there was no difference in the charge on the two indictments. Again, the breach was of no practical significance. Indeed, as Mr H Dhanji, who appeared for the Appellant, properly conceded, his client suffered no prejudice.

Although, in my opinion, the Crown cannot rely directly on the Fox indictment, its existence is of significance as a relevant circumstance for purposes of the Project Blue Sky test. The District Court had been invested with the relevant jurisdiction under s130(2), but that indictment was not the basis of the ultimate trial. The Court in fact exercised jurisdiction on the basis of the presentment of and arraignment under the Traill indictment.

I turn to the reasons which support a finding of invalidity. In the event, I have come to the conclusion that, on balance, that should be the result.

The strongest argument in favour of the proposition that an actual authority to sign constitutes an essential element of the validity of every indictment, most relevantly for purposes of investing the District Court with jurisdiction, is the criminal pleading context of the relevant provisions. The criminal law is one of the last areas of the law in which a technical point is still a good point. Parliament can be taken to act on the basis that the common law has, subject to statutory exceptions, traditionally required punctilious compliance with the requirements of criminal procedure. (See R v Birlut (1995) 39 NSWLR 1 at 5-6; R v Deng (1996) 91 A Crim R 80 at 85-86.) However, that does not necessarily lead to the conclusion that there has been no change in judicial attitudes in this respect.

In the context of determining that the traditional strictness remains applicable with respect to the rule against duplicity in indictments, Kirby J said: “Just as in civil procedure there has been a loosening of the rigidities of technical rules where these would defeat the merits, so in criminal procedure and pleadings, there has been, to some extent, a retreat from technicality. This is evidenced in Australian decisions such as Byrne v Baker (1964) VR 443 at 448 and in England by Merriman v R (1973) AC 584. Allowing for their different history and purposes, it is desirable that the same rationality and concern with justice should inform criminal as well as civil pleading and procedure.” ( Walsh v Tattersall supra at 105)

A textual indication of the significance of the requirement of a valid authority, as emphasised in the reasoning in Halmi quoted above, is s126(3). The presumption that an indictment was signed by an authorised person operates only “in the absence of evidence to the contrary”. The ability to prove that there was no valid authority is reinforced by s126(4) which makes a certificate that a person had such authority evidence of the matters so certified. However, the certificate is not conclusive evidence. Parliament has, accordingly, specifically directed its attention to the possibility that evidence may be adduced indicating that authority to sign is absent.

Such evidence would be pertinent to the determination of an application to stay or set aside an indictment before plea, or during the trial, or to the determination of whether or not an indictment has been presented within the time stipulated by, or under, s129 of the Act. If there has been no valid indictment presented within that time, then the Court’s discretion to make orders under s129(4) arises. The Appellant’s submission that s126(3) would be otiose unless the absence of an authorised signature rendered the indictment invalid for all purposes should be rejected. Nevertheless, there is no textual reason why such evidence should be restricted to s129 and not extend to s130. The significance of s126(3) was recognised in the judgment in Halmi .

The focus of the present case is upon the act of signature. This step in the process does not have the same quality of essentiality that the finding of the bill or the formulation of the charge has. The legislative purpose of requiring a signature on an indictment has been described by Young CJ as being “in order to authenticate it”. ( R v Parker [1977] VR 22 at 24.55.) The position was the same with respect to a bill of indictment found by a grand jury which was valid even though not signed at all, as required, “because there can be no doubt of its authenticity”. (See Jane Denton’s Case (1823) Lew CC 53 at 54, applied in Guiseppe Sidoli’s Case (1833) Lew CC 55.) To similar effect is the purpose of a signature on an indictment stated in R v Painter supra, namely: “to identify the prosecutor”. A purpose of this character does not suggest that, where the indictment is otherwise “authentic”, or the prosecutor is otherwise identified, the legislature intended that a defect in the signature process would lead to invalidity. Such a statutory purpose appears to be satisfied in this case.

However, a similarly worded provision in another legislative scheme may have additional purposes. That appears to be the case with s126.

I have read Justice Howie’s judgment in draft. His Honour provides an extensive analysis of the scope and purpose of the 1987 legislative scheme which altered the basis of prosecutorial authority in this State. It was in this context that the legislative predecessor of s126 was introduced for the first time. This context must be taken into account for purposes of determining the intention of Parliament with respect to non-compliance with the stipulation that an indictment be signed by an authorised person. (See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 78 ALJR 585 at [11].)

His Honour’s analysis indicates that s126 had as its primary purpose the objective of ensuring that the new office of the Director of Public Prosecutions, subject only to the Attorney General’s powers, would be in control of the process of instituting criminal proceedings on indictment and that that would be manifest to all parties to the proceedings. This purpose requires precise compliance with the formulated stipulation in s126(1)(b)(iii) and s126(2). For this reason, I have come to the conclusion that Parliament did intend that the defect in compliance which has occurred in this case should lead to invalidity.

This is an unfortunate result. The Appellant received a fair trial. The technicality on which he has succeeded was of no practical significance. This is the kind of result that adversely affects public confidence in the administration of criminal justice by giving the public the impression that the system is just a forensic game. Nevertheless, for good reason, the courts have always insisted on punctilious compliance with legal formalities which have any substantive purpose, before the State imposes the stigma of a criminal conviction on any citizen. That longstanding policy of the law should not be changed without clear and unambiguous parliamentary authority.

It may be that the Parliament should revisit and expand the list of defects in s16 and s17 which do not lead to invalidity. That list is now over a century old.

This ground of appeal should be upheld. The De Facto Officers Principle

The Respondent invoked the de facto officers principle to validate the indictment. The doctrine has been analysed in the classic paper by Sir Owen Dixon (“De Facto Officers” in Woinarski (ed) Jesting Pilate (1965), 229) and more recently by Professor Enid Campbell (“De Facto Officers” (1995) 2 Aust J of Admin Law 5). The existence of this principle of the common law has been affirmed in a recent joint judgment of four judges of the High Court in Cassell v The Queen (2000) 201 CLR 189 at [19].

In a frequently cited authority, State v Carroll, 9 Am Rep 409 (Conn, 1871), Butler CJ identified a number of circumstances in which the de facto officers principle applies, of which one circumstance is: “An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised … under colour of a known … appointment, void, because the officer was not eligible … such ineligibility … being unknown to the public.” (at 427)

There is a clear distinction between the validity of an appointment and the determination of what powers can be exercised by the holder of an office. The principle only applies to the former situation. ( Bond v The Queen (2000) 201 CLR 213 at [33].)

Although Sir Owen Dixon identified the origins of the de facto officer principle in the concept of an office as property, when doing so he noted that its development subsequently had been based on other considerations. He said at 233: “The origin of the principle is not, I think, to be found in considerations of public policy although, no doubt, its growth has been fostered and its maintenance is demanded by the justice of its operation and the expediency of the protection it gives against collateral attacks upon the title to public offices.”

He went on to note that the principle had “undergone an entire change” and that it did “now survive as a principle founded on public policy”. After referring to this passage, McHugh JA said in GJ Coles & Co Ltd v Retail Trade Industry Tribunal (1986) 7 NSWLR 503 at 527: “Whatever is the true account of the origin of the de facto officer rule, its rationale in modern times is the protection which it affords the public.”

In the most recent English authority, Fawdry & Co (a firm) v Murfitt [2003] QB 104, Hale LJ, as her Ladyship then was, referred to Sir Owen Dixon’s analysis of the origins of the principle and added at 112: “[20] … Nowadays, the rule is based not on that technicality but on public policy.”

The historical origins are reflected in the continued use in contemporary case law of the terminology of “title” to an office. As the four judge joint judgment put it in Cassell supra: “[19] Even if it had appeared that there was some defect in the appointment of the Commissioner or the Assistant Commissioner, (which is not the case), the prosecutor may well have been entitled to rely upon the principle of the common law that where an office exists but the title to it of a particular person is defective the ‘acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office’. ( G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 525, per McHugh JA)”

The terminology of “title” remains a useful shorthand expression to focus attention on the right to occupy a position, as distinct from the right to exercise powers, as determining the scope of the principle.

The scope and purpose of the de facto officers doctrine has been variously stated. Kirby J who has taken a narrow view of its purpose and operation described it in Cassell supra at [71] in the following terms: “The de facto officers doctrine is generally invoked to cure a problem which arises out of an accidental and unexpected want of lawful authority.”

This is a reflection of the approach his Honour took in the joint judgment with Hope JA in GJ Coles supra where their Honours said at 520B-C: “… [T]he de facto officers cases have developed ‘as a matter of policy and necessity’ to protect those litigants whose interests are affected by the apparently official acts of persons who purport to exercise official powers.”

To similar effect is the observation of the joint judgment in the Court of Appeal in Balmain Association Inc v Planning Administrator for the Leichhardt Council (1991) 25 NSWLR 615 at 639E: “Moreover, in our view the doctrine is essentially one for the protection of members of the public who deal with, or who are affected by, the official acts of de facto officers: see R v Lisle (1738) Andrews 163 at 166; 95 ER 345 at 346).”

There is a difficulty with this last proposition. The page in R v Lisle referred to as authority for the proposition is a reference to the argument for the Crown in that case, rather than to the judgment. Indeed, it was in the course of that very argument that Lee CJ interrupted the Crown when it relied on the authority of Hipsley v Tucke , to which I will refer below.

A similar narrow view is suggested in the observations of Harlan J for the plurality of the Supreme Court in Glidden Co v Zdanok , 370 US 530 (1961) at 535: “The rule is founded upon an obviously sound policy of preventing litigants from abiding the outcome of a lawsuit and then overturning it if adverse upon a technicality of which they were previously aware.”

Divergent views have been expressed as to the continued strength of the de facto officers principle particularly where an issue of inconsistency with the requirements of a particular statute arises. In GJ Coles & Co Ltd supra Kirby P and Hope JA took a narrow view reflected in the observation that: “… [T]he rule of law and compliance with the requirements established by Parliament will be ignored by reference to a ‘doctrine’ whose operation should be strictly confined.” (at 520D)

This approach was repeated in the joint judgment of this Court (Kirby P, Priestley and Handley JJA) in Balmain Association Inc , supra, where the Court said at 639: “The inclination of the Court to confine any such doctrine within narrow limits sufficiently appears from what was said by the majority in GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 519ff.”

Justice Kirby has continued this general approach to the doctrine in his dissenting judgment in Cassell v The Queen supra where his Honour said at [72]: “… [A]s a doctrine of the common law, the one in question here must bend to the scheme and purpose of the Act. In a prosecution of an accused person for an offence against s87, it is the Act which requires that it be proved by the Crown that the false or misleading evidence was given ‘at a hearing before the Commission’. No common law doctrine could relieve the Crown of that requirement if, as I believe, it was necessary by the Act. The de facto officers’ doctrine is a possible refuge in exceptional and generally extraordinary circumstances …”

A different approach was adopted by McHugh JA in GJ Coles & Co Ltd whose reasoning, with respect to the scope and operation of the doctrine at 525-527, did not suggest that the doctrine should be “strictly confined” or that it should be confined “within narrow limits” or that it operated only in “exceptional and generally extraordinary circumstances”.

The majority joint judgment in Cassell v The Queen at [19] appears to have affirmed the general approach taken by McHugh JA, specifically by quoting his Honour’s judgment in GJ Coles at 525F where his Honour stated the basic principle to be: “The acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office.”

There is some, albeit unsatisfactory, authority in support of the proposition that a statutory criterion for the occupation of office manifests a parliamentary intention of sufficient strength to override the de facto officer principle. I refer to a case which is variously, and not always consistently, reported under a number of different names, but of which the most significant are Ipsley v Turk (1677) 2 Mod 193; 86 ER 1019; Hipsley v Tucke (1675) 3 Keble 606; 84 ER 905; and Hippesley v Tucke (1677) T Jones 81; 84 ER 1157. (See the analysis in Clifford Pannam “Unconstitutional Statutes and De Facto Officers” (1966) 2 Fed LR 37 esp at 43-45.) The case involved the first Test Act of 1672 (25 Car II, c2), under which the holder of any office under the Crown was obliged to take the oaths of Supremacy and Allegiance and also receive the sacrament according to the usages of the Church of England. The Act was designed to prevent the “Dangers which may happen from Popish recusants, and quieting the minds of his Majesty’s good Subjects”.

A person sat as a judge of an inferior court without taking the requisite oaths. It was held either unanimously, or with one dissentient, (depending on which report of the case is read) that the de facto officer principle did not apply. This conclusion appeared to be based on the strength of the parliamentary intention. In one report of the appellate judgment the “principal intent of the Act” is described as making both the “office” and “all acts done by colour of the office” void (supra 84 ER 1157 at 1157 and 86 ER 1019 at 1020 fn (a)). The appeal court overturned the first instance decision of Sir Matthew Hale. Subsequent judges of high repute, including Holt CJ and Lee CJ, said that they believed the appeal judgment to be wrong. (See the references in Sir Owen Dixon supra at 235 fn 30; Pannam supra at 44 and Re Aldridge (1893) 15 NZLR 361 at 371.)

It also appears that, by the 19th century, when England was no longer so threatened in its territorial integrity by Roman Catholic claimants to the throne, the significance of the Test Acts in this regard was found to be considerably attenuated. (See, e.g. the authorities referred to by Pannam supra at p44 fn 47.) Nevertheless, the case does demonstrate that the principle can be modified by a statute which requires that a particular pre-condition for office operate, irrespective of the practical and policy reasons upon which the de facto officer principle is based. (Two United States examples of such an approach are United States v Machado, 306 F Supp 995 (1969) and United States v Beltram , 306 F Supp 385 (1969) and see Katheryn A Clokey “The De Facto Officers Doctrine: The Case for Continued Application” (1985) Col LR 1121 at 1134-1137.)

In the present case the Crown relied on the printed words on the indictment signed by Ms Traill which, to repeat, state: “Crown Prosecutor On behalf of the Director of Public Prosecutions”

It was submitted that Ms Trial had some kind of “colour” as a Crown Prosecutor and should, accordingly, be understood as purporting to have been appointed as such and therefore be authorised to sign an indictment pursuant to subs (b)(i). It is quite clear from the conduct of the proceedings, including express discussion of this very matter, that Ms Traill did not purport to have any such “colour”. The words “Crown Prosecutor” were not used in the formal sense of a person appointed as a Crown Prosecutor, but as a person satisfying any one of the three criteria for acting on behalf of the Director of Public Prosecutions pursuant to s126(1)(b).

Nevertheless, Ms Traill did purport by the act of signature to have been authorised to sign the indictment pursuant to s126(2) and an authorisation to perform a task of that character may attract the de factor officers principle. Did she have the relevant “colour” with respect to this matter?

In the comprehensive analysis of the principle by Butler CJ in State v Carroll supra there was a class of case where the principle had been held to apply in which there was no known appointment. Butler CJ said at p423-424. “It should be remembered that among the earliest cases there was a distinct class entirely independent of colour derived from any known appointment or election, where the law said to the public as a rule of policy: “If you find a man executing the duties of an office, under such circumstances of continuance, reputation, or otherwise, as reasonably authorize the presumption that he is the officer he assumes to be, you may submit to or employ him without taking the trouble to inquire into this title, and the law will hold his acts valid as to you, by holding him to be, so far forth, an officer de facto. If he has colour of appointment or election, and yet is not a good officer for the want of authority in the appointment power, or irregularity in exercising it, or because there was another lawful officer entitled to the office, or because the incumbent was ineligible, or had not qualified as the law required, or his term had expired, your case is made stronger by the colour, but that kind of colour is not essential to your protection, for you are not bound to inquire to see that it exists.”

This category of a person acting as a de facto officer has been accepted in Australia. (See R v Cawthorne; Ex parte Public Service Association of South Australia Inc (1977) 17 SASR 321 at 322; Luff v Oakley (1986) 65 ACTR 19 esp at 25. Note the criticism of this decision by Enid Campbell in her article on “De Facto Officers” supra at p11-12.) This category has also been adopted in numerous American cases and has been approved in the Supreme Court. ( Norton v Shelby County , 118 US 425 (1886).)

One of the leading American cases on this category of application of the de facto officer principle is Buck v Hawley & Hoops , 105 NW 688 (Iowa, 1906). This case is frequently cited and happens to have facts similar to those in the present proceedings.

Section 3542 of the Code of 1897 declared that when service is made in the state “the truth of the return is proven by the signature of the sheriff or deputy and the court shall take judicial notice thereof”. The return was signed by John W Shapely as follows: “B. F Seaton, Sheriff, by John W Shapely, Deputy”. Code 1873 s 766 authorizes the sheriff to appoint a deputy by an appointment in writing to be approved by the board of supervisors and to be filed in the office of the county auditory. Shapely had never been appointed as a deputy sheriff according to this procedure. In considering whether Shapely could nevertheless be considered a deputy sheriff de facto the court stated at 689: “In some cases color of office – that is an appointment or an election of some kind – has been thought indispensable to the finding that a person is an officer de facto, and without which he is to be regarded as an intruder or usurper. But the current of authority is to the effect that an intruder or usurper may exercise official functions under such circumstances and for so long a time without interference as to justify belief that he has been elected or appointed. … If Shapely can be said to have been a officer de facto, this must be owing to the exercise of official functions alone, for the only information contained in the record that he was acting as deputy, even, is the signature to the return and the fact that the court based its judgment thereon. But the circumstance of his signing the return alone seems hardly sufficient to induce any one, without inquiry, to act upon the understanding that he was in office. In the absence of any color of appointment or election the party to be treated as a de facto officer must have acted as such under such circumstances of reputation or acquiescence as are calculated to induce people, without inquiry, to submit to or invoke his action in the supposition that he is in fact the officer he assumes to be. Manifestly proof of the very act concerning which the controversy has arisen cannot be regarded as sufficient to indicate his authority to perform it. State v Wilson, 7 N.H. 543; Goulding v Clark, 34 N. H. 148. The court said in the first of the above cases: ‘If it could, the authority of third persons to do official acts, when it came in question, would be proved by the acts themselves, which would be absurd.’ And in the last case: ‘It has, we think, always been required, in order to prove a person to be an officer de facto, to show that he has acted as such on other occasions than those which are the subject of the controversy’.”

The court concluded he was not a de facto sheriff, stating at 689: “If Shapely was not in fact a deputy sheriff, treating his signature as that of such an officer did not make him one, any more than the finding that the original notice had been served was conclusive on that question. Undoubtedly both findings of the court are entitled to great consideration; for, as was its duty, it is to be presumed to have inspected the return and signature thereto. These are matters to be weighed in determining whether there was any service. But if it shall appear that the signature purporting to be that of an officer was not such in fact, for the reason that the person who signed the return was not an officer, then the probative value of the return, not sworn to, has been destroyed. Then does it become apparent that the court has been imposed on.”

I would reach the same conclusion in the present case. Ms Traill did not from the act of signature alone have sufficient colour of authority for purposes of the statutory scheme presently under consideration.

The first reason for that conclusion is the existence of s126(3) which expressly contemplates the production of evidence to the effect that a purported authority was non-existent. That is what happened in the present case.

The second reason for the conclusion is the process of statutory interpretation set out above leading to the conclusion that it was the parliamentary intention to invalidate an indictment signed by a person who was not authorised to do so. The de facto officers doctrine is a principle of the common law. It can be overridden by statute. Indeed, in my opinion, where the Project Blue Sky test is satisfied, as I have held it is in this case, it is difficult to see that the de facto officers principle could ever be applicable. It is not necessary in this case to conclude that it can never be so. However, the above analysis does lead to the conclusion that the Crown cannot rely on this principle in the present case. Photographic Identification Grounds

Mr Malufuka’s evidence that he recognised the Appellant as one of the four men that attacked him was a critical issue in the case. Mr Malufuka said that he had never met the Appellant but he knew him because his younger brother, who had attended school with the Appellant, had pointed him out on more that one occasion.

On 11 December 2002, some seven months after the attack, Mr Malufuka was shown an array of 20 photographs. He identified the Appellant as “Darko” and said that he was involved in the assault.

An objection was taken on the voir dire to the admissibility of this evidence of subsequent identification from photographs. In the course of the voir dire evidence was also adduced that the victim had identified by name all four of his assailants in two statements made by the police within a week or two of the attack.

Tupman DCJ admitted the evidence. She said in the course of her judgment: “In his evidence in chief so far in this trial he nominated each of those who he said was involved in the assault on him. He said that he knew each of them, some better than others. There was no objection on behalf of any accused person in this trial when he nominated each of those who he claimed were involved in this offence, gave each of them a name, attributed a role to each of them and in relation to each of the accused Kevin and Joseph Ison gave evidence about the circumstances in which he knew them. … … There was no objection taken by any of the four accused to the complainant giving recognition evidence on the second day of the trial during the course of his evidence in chief. As I have said, on 11 December, according to the evidence the complainant went to the police station and was shown the twenty photographs relevant to each of the accused … There is no objection taken on behalf of any of the four accused to the way in which the photo identification was, in fact, conducted. … … The evidence, it seems to me, is probative … in relation to each of the accused because it would enable the jury to test the reliability of the complainant’s recognition evidence given in relation to … all of the … accused. … There is to be cross-examination in relation to the ability of the complainant to recognise in the way that he asserts he did, each of the accused. As I understand it, there will be issues raised in relation to questions of lighting, intoxication of the complainant and similar. … The ability of the complainant, then, to recognise each of the accused in the way he asserts that he has, is an important issue in the trial, and evidence which goes to that issue is relevant and probative in relation to the jury’s ability to test the reliability of the complainant. … In relation to each of the accused … I understand the objection to be, in large part, on the basis that the admission of the evidence would be unfairly prejudicial for each of those accused … … Clearly enough the evidence would be prejudicial to each of the accused because it is evidence from which the jury would be entitled to accept that Mr Malufuka is to be accepted as a reliable witness when he says that he recognised those who attacked him, because they can then reason, on the basis of this identification evidence, that he is, in fact, a person who is capable of recognising those four people from amongst groups of twenty when the photos were presented to him”

Her Honour went on to note that it would be necessary for her to give directions about the difficulties with identification evidence, in this regard she concluded: “It seems to me that there is nothing in this evidence that means that it has such frailties that cannot be cured by an appropriate direction to the jury. It is probative. Its frailties are capable of being cured by an appropriate direction. I am not satisfied that it is otherwise unfairly prejudicial.”

The Appellant submits that on her Honour’s judgment the evidence was not admitted to show that the victim was capable of recognising the Appellant but as tending to reinforce the reliability of his prior recognition. He submits that the evidence had “at best, marginal relevance” (written submissions [20]).

The Appellant also submits that her Honour did not take into account the different circumstances of the two acts of identification in order to make a proper assessment of the extent to which the identification based on the photographs could be said to rationally affect the reliability of the original identification. On the occasion that he was shown the photographs, there was no issue as to lighting, capacity to observe, stress or intoxication.

The Appellant also takes issue with her Honour’s direction to the jury on the dangers of identification evidence. No request for redirection was taken at the trial.

The Appellant drew the Court’s attention to two passages in her Honour’s summing up. She said at SU58.2: “I will come in a moment to the evidence about what the nature of the relationship was, the extent to which each of them said that they knew the four and how you ought to take that into account in assessing the reliability of that recognition. In doing that, however, you should also remember the evidence that on 11 December each of them went to a police station and participated in that picture identification, John Malufuka in relation to each of the four accused and Cindy Castro in relation to Chady Eid. As you know, each of them accurately picked out the photographs of what turned out to be the four accused, so far as Malufuka is concerned, and Chady Eid, so far as Castro is concerned. As I have said, you have those photograph arrays, the twenty photographs. You can see the photographs which were shown to him and to her and you can see the photograph of each of the accused which was shown to him and the one shown to Cindy Castro. You know that in this trial the Crown relies on the ability of John Malufuka to pick out photographs of each of the accused accurately as evidence supporting the reliability of John Malufuka’s identification of each of the accused at the time of the attack and invites you to look at that evidence as showing that he was capable at the time he engaged in that picture identification evidence of an accurate recognition and identification of each of them.”

Subsequently her Honour said at SU61.1: “You ought to take it into account, you might think, that the relationship was of a fairly limited nature such that it might make less reliable what he claimed to be the ability to recognise and thus to identify each of those two accused on the night. Again, however, I remind you of the evidence called by the Crown that on 11 December he accurately picked out and was able to recognise photographs of each of those two accused [the appellant] and Chady Eid when he engaged in the picture identification of each of those two.”

The Appellant submits that, although her Honour indicated that the photographic identification evidence was available to them to establish Mr Malufuka’s ability to identify the Appellant, there was no warning given to them about the dangers of relying on the subsequent identification, by reason of the different circumstances in which it was made.

The Crown submits that the accurate identification by Mr Malufuka of the Appellant from the photographs was relevant to prove that the person his brother had pointed out to him as being the Appellant was indeed the Appellant. This evidence removed the possibility that his younger brother had been mistaken in his own identification of the Appellant and had ascribed the name “Darko” to the wrong person.

The Crown also submits that the cross-examination of Mr Malufuka was, at least to some degree, based on the proposition that he was not able to identify him because of the circumstances in which he said that his brother had pointed him out, for example when he passed them whilst they were pedestrians in a moving motor vehicle. The Crown submits that this line of cross-examination, which was taken up by counsel for the Appellant in his address to the jury, was such that there was an issue in the trial about the ability of Mr Malufuka to identify the Appellant and that he may have confused him with someone else.

The Crown’s submission that Mr Malufuka’s ability to recognise the Appellant was in issue is correct. The victim’s cross-examination on behalf of the Appellant established that he had never met or spoken to the Appellant and continued: “Q. … you would have just seen him in a seated position in a vehicle, is that right? A. Yes, sir. Q. You would’ve only seen him perhaps in profile is that right? A. I’ve seen him at the Berkeley police station. Q. But the example you gave of him being in a car wouldn’t have been a perfect way to recognise someone, would it? A. No, sir.” (T 337)

In his address to the jury, counsel for the Appellant pressed the issue (T 22/3/04 pp6-7): “Look at Malufuka’s evidence in relation to my client, I’ll call him Darko for short. How did he know him? He said he’d never met him, couldn’t remember speaking to him. He met him through or he knew of his existence through his little brother, he said, with whom Darko went to school. He thought he known [sic] him or knew of his existence for about twelve months. You’ll see in the record of interview that Darko participated in that Darko thought, or he did say, he knew him from the club and/or pub scene. Certainly, that was not agreed to by Mr Malufuka. He did say he’d seen him at, I think, the Berkeley petrol station. Because what I put to him in cross-examination, members of the jury, and I don’t expect you’ll recall, but there’s one aspect of his evidence which was rather curious and quaint perhaps. He would say, for example, that he and his brother were walking along and they might see Darko and/or Chady in the car and the younger brother would say, ‘Oh, there goes Darko and/or Chady.’ I put it to him, well, then in that context it’s a poor way, if you’re a pedestrian and you’re watching a moving vehicle and you’re only seeing someone from the windowsill up and maybe only in profile, it’s not the best way of forming, as it were, an indelible impression in your memory bank. And he pointed out, ‘Yes, but I saw him – I’ve seen him at the Cringila petrol station lights.’ Well, big deal.” (T 22/03/04 6.37-7.03.)

The circumstances of the attack in relation to the victim’s ability to identify the Appellant was the subject of extensive cross-examination. Her Honour gave detailed directions on these matters in her summing up to the jury. She expressly noted that the reliability of identification depends on the circumstances in which the person giving the evidence had observed the other. She gave examples of the kinds of factors that may affect reliability in this regard. She noted that errors could occur even in the case of persons previously known to the witness. She gave the jury a warning about the need for special caution when accepting evidence of identification, a direction to which no objection was taken. She then gave detailed directions about the issues that had arisen in this respect such as lighting, circumstances of a violent attack and Mr Malufuka’s intoxication.

Her Honour also said at SU57-58, with respect to the identification evidence of both Mr Malufuka and Ms Castro, (the latter being relevant for one of the co-offenders): “Neither of them is giving evidence in which they claim to have identified a stranger. Each of them says that they recognised the person whom they identified. You should take into account when assessing that issue the nature of the relationship with the person they claim to recognise, to look at whether or not what is said to be recognition in fact is reliable.”

Her Honour then proceeded to discuss the nature of the relationship between Mr Malufuka and each of the four accused, relevantly in the case of the Appellant, to the fact that his younger brother had pointed him out. In this respect. Her Honour said at SU61: “You ought to take into account, you might think, that the relationship was of a fairly limited nature such that it might make less reliable what he claimed to be the ability to recognise and thus identify [the … accused on the night] again, however, I remind you of the evidence called by the Crown that on 11 December he accurately picked out and was able to identify photographs of [the] accused Darko Janceski … when he engaged in the picture identification evidence …”

Her Honour also referred to the dangers of transference specifically in the case of a photo identification parade and she also referred to the length of time after the events that the photo identification occurred.

In my opinion, although of limited weight, the evidence of subsequent identification was relevant to the issue of Mr Malufuka’s ability to identify the Appellant as his assailant. The subsequent cross-examination, referred to above, confirmed that there was an issue about whether Mr Malufuka was able to identify the Appellant. I have set out the cross-examination and counsel’s address above. The issue of Mr Malufuka’s ability to identify clearly arose. The evidence was admissible.

As to the complaint about her Honour’s directions, it is the case that the circumstances of the assault and the circumstances of the identification were completely different. It may have been advisable, in her Honour’s otherwise extensive directions on the difficulties attending identification evidence, to have drawn the jury’s attention expressly to that fact. She did indicate in general terms that the reliability of an identification depended on the circumstance in which it was made. She gave detailed directions on this matter with respect to the occasion of the assault. I do not believe a more specific direction, referring to the subsequent photographic identification was necessary. In any event, there was no request for redirection in this regard. Rule 4 applies. This ground of appeal fails. I would, in any event, have refused leave. Grounds 4 and 5

It is convenient to deal with these grounds together. As noted above the evidence relating to the involvement in the attack by the Appellant extended to his presence in a supporting role at the time that the victim suffered the injury to his ear. Whether or not his involvement continued at the time of the injury to the eye is not as clear. There was some evidence to which I will make further reference below that at least one of the participants in the attack uttered words consistent with a withdrawal from the joint criminal enterprise. Other than that evidence, there was nothing to suggest any relevant discontinuity between what I have called the second and third phases of the attack.

Ground 5 focuses on the fact that the trial judge directed the jury that they could rely on both the injury to the ear and the injury to the eye as constituting the grievous bodily harm.

In the course of her summing up the trial judge said: “There really is no dispute in this trial that the injuries to the right ear and left eye and left eye socket are capable of amount [sic] to really serious bodily harm and therefore grievous bodily harm … … The bodily harm the Crown relies … on are the injuries to Mr Malufuka’s right ear, left eye and left eye area.”

This direction contrasts with the way the Crown opened the case to the jury when he said (T 24/02/04 6.27-35): “We say that Joseph Ison actually caused the injury to the eye, but all of them are responsible because they all acted together, and they all in fact caused injuries to him. The grievous bodily harm relied upon in the case is the severe injury to John Malufuka’s left eye. So that’s the grievous bodily harm.”

After the close of the Crown case and during the course of discussion with counsel about her Honour’s directions to the jury the issue arose as to whether or not her Honour would give any direction with respect to the alternative charge. Her Honour informed counsel during the course of these discussions: “At this stage as presently advised I propose to tell the jury if they are not satisfied about the substantive verdict, they can’t be satisfied in respect of the alternative verdict, because there is no issue in relation to the intention. If they are satisfied that the event occurred at all, they must be satisfied that there was an intention to commit grievous bodily harm. The issue is whether or not the Crown could prove beyond reasonable doubt any of these people were involved in the offence.”(T 1103)

Her Honour went on to reiterate the proposition when she said: “… There could be no suggestion I would have thought from any of you that to state as the fact, or the incidents themselves are concerned, if the jury accept that four people came at Malufuka, one threw a club, two hit him over the head with bars, and a third hit him over the head a [sic] with a shovel to the extent it took his ear off that that can be anything other than clear evidence of an intention to inflict really serious bodily harm.”(T 1104)

Counsel for Eid, Mr Laucis, interjected at this point and the following exchange occurred: “LAUCIS: There might be a situation in relation to my client because the evidence is he threw the club like [sic] he has not seen again. HER HONOUR: I thought the evidence was he was seen in the vicinity and he was only a few steps ahead of other 3 anyway. Leave that aside for the moment, he was part of the pack according to the evidence of Malufuka and Castro, wasn't he. LAUCIS: He may or may not be. The grievous bodily harm, or the injury to the eye. It is not necessarily so that my client knew or --. HER HONOUR: Is that what you opened to the jury on? CROWN PROSECUTOR: I opened on the injuries but I said the serious injury was the eye. HER HONOUR: I would have thought having your ear chopped off was serious. LAUCIS: It is a matter whether my client had anything to do with the ear or the eye, if all he did was throw the club there is no case he was there or had anything to do with the further assault.”

In the case of Eid, unlike the Appellant, there was no evidence of participation in the assault at the time of the injury to either the ear or the eye. It is noteworthy that counsel for Eid referred to both the ear and the eye, suggesting that in the course of the trial both had been identified as relevant grievous bodily harm.

Counsel for the Appellant did not intervene during this discussion, notwithstanding the fact that her Honour said to Eid that “the other boys then came at the car”, referring not just to the two Ison brothers but also to the Appellant.

The Appellant contends that the trial judge impermissibly directed the jury that it could rely on injury to the ear and, in this regard, left to the jury a version of the prosecution case which had not been relied on by the Crown. In this respect the Appellant relies on the decision of the High Court in King v The Queen (1986) 161 CLR 423.

I have set out above the reference in the summing-up on which the Appellant primarily relies. I note that the fact that her Honour regarded the injury to the ear, as well as the injury to the eye, as capable of constituting the grievous bodily harm for purposes of the primary charge and the alternative charge was repeated at several different points in her summing up. (See SU164.9-165.5, 165.2-5, 168.3-6).

Neither the Crown address to the jury, nor the address by counsel for the Appellant distinguished in any way between the injuries to the victim’s ear and eye. The issue was whether the Appellant was present.

Counsel for the Appellant at the trial proceeded on the basis that the injuries to both the ear and the eye were relied upon. In his address to the jury he preferred to the evidence against the co-offender Eid and said: “There’s no evidence from either Castro or Malufuka that he did anything else, indeed certainly nothing in relation to the ear and the eye which led to the – which culminated in Mr Malufuka being seriously injured.” (T 22/3/04 p29)

Eid was even more removed from the injuries to the eye and the ear than the Appellant.

It appears clear that counsel for the Appellant at trial, and other counsel, accepted that the Crown case of grievous bodily harm had been extended beyond reliance on only the eye that had been mentioned in the opening. Without express reference to the opening, the trial had been conducted on the assumption that the Crown could rely on injury to the ear. That her Honour proceeded on the same, rather obvious, assumption cannot now be a basis for complaint. Understandably, as the evidence of the events and of the injuries emerged, it must have become obvious that the grievous bodily harm was not limited to the eye. The trial was run on the basis that the Crown could rely on the full range of injuries. There was no miscarriage of justice. In any event Rule 4 would apply. Her Honour made a number of references to both injuries and no counsel thought it relevant to seek a redirection.

It is pertinent to set out the whole of her Honour’s directions of a separate character with respect to the Appellant in relation to the particular injury: “The really serious bodily harm relied on by the Crown in this case is the injury to the ear, right ear, and the injury to the left eye and eye socket. There is no evidence available in the case that links any individual act done by Mr Janceski to either of those two injuries. To that extent it is unlike the evidence against Kevin Ison and Joseph Ison. So it would only be if you accept that he was part of a joint criminal enterprise, that is Darko Janceski, that you would be entitled to convict him of either of the two charges. Now you know the Crown case is that if you accept the evidence of John Malufuka so far as the two Isons and Janceski at least are concerned you would have no difficulty coming to the conclusion that it must have been the joint agreement of at least those three, including Janceski, that being armed and acting as they did, that they would, the Crown puts to you, cause grievous bodily harm to John Malufuka. But if you are not satisfied about his actual intent to at least cause some injury or be reckless about whether that activity would possibly cause some injury, and you know the Crown puts to you that you would have no difficulty, even if you do not know exactly what it is that Darko Janceski did by way of causing injury, that nonetheless you would be satisfied that he was part of the agreement and the agreement was, at least amongst the three of them, to attack Mr Malufuka.”

With respect to the evidence, set out above, which indicated the possible withdrawal from the joint criminal enterprise by either the Appellant or Eid, the Appellant submitted that it was incumbent on the trial judge to leave that possibility to the jury even though it did not form part of the Appellant’s case and the Appellant relies on Pemble v The Queen (1971) 124 CLR 107 at 117-118. In this regard it is material to note that the primary case of the Appellant was that he was not present when the events occurred at all.

The statement was made after the injury to the ear, but before the injury to the eye. If, as I have concluded above, the Crown case had altered from the opening, which restricted the grievous bodily harm to the eye, then there was no withdrawal before the injury to the ear.

In any event Ms Castro, who gave the evidence about withdrawal said that three men, therefore including the Appellant, attacked the victim at the car in what I have called the third phase. Her evidence of withdrawal, although not in terms excluding the Appellant, would not have absolved the Appellant. There was no miscarriage of justice.

In any event Rule 4 should be applied and leave refused. Counsel for the Appellant at trial did not seek any direction about the possibility that the Appellant had withdrawn from the joint enterprise. No doubt if he had done so, her Honour would have been requested by the Crown to remind the jury of Mr Castro’s evidence that three males, not including Eid, were involved in the third phase of the attack. There were tactical reasons for not requesting a redirection. Conclusion

The appeal should be allowed, the conviction set aside and a retrial should occur on the charge of maliciously inflicting grievous bodily harm.

WOOD CJ at CL: I acknowledge the considerable benefit, which I have received in reading in draft the judgments of Spigelman CJ and Howie J. I agree with the Chief Justice, for the reasons given that Grounds 2 to 6 have not been made good. I also agree with the Chief Justice and with Howie J that Ground 1 has been made good. Having regard to its importance, I propose to state my reasons for that conclusion.

In dealing with this ground, I adopt what has been written by Howie J in relation to the practice which has been followed in this State concerning the presentation of an indictment, and in relation to the legislative history which his Honour also reviewed. I regard that background as of considerable relevance for the ascertainment of the legislative intention which accompanied the enactment of s 126 of the Criminal Procedure Act 1986 ("the Act").

As in Regina v Halmi [2005] NSWCCA 2, the parties accept that the test for determining the meaning of s 126 was that which was spelled out in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

Their Honours there said at [91]: "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue."

After noting the distinction which has been traditionally drawn between a failure to comply with a mandatory condition regulating the exercise of a statutory power, and a failure to comply with a directory condition, their Honours observed at [93]: "In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'."

Although, an argument was directed to the effect that any deficiency in the Traill indictment was cured by the circumstance that a properly authorised indictment was already on the file, I am not persuaded that this was sufficient to cure any deficiency in the proceedings.

The simple fact is that it was the Traill indictment to which the Appellant pleaded, and upon which the trial proceeded. There was no attempt to revive or to rely on the original Fox indictment, which the parties clearly regarded as having been superseded. The position would have been otherwise had the Fox indictment been re-presented and had the trial proceeded upon it, as could have happened since it had not been spent by verdict, by plea of guilty, or by entry of a nolle Prosequi (now by a direction under s 7(2)(b) of the Director of Public Prosecutions Act 1986: R v Howard (1992) 29 NSWLR 242 at 247.

It may be noted that the substitution of an indictment by the Prosecutor amounts to an "amendment" of the original indictment (see s 20(3) of the Act). Subject to the powers reserved to the Court under s 21 of the Act, such "amendment" requires the leave of the Court, or the consent of the accused (s 20(1)). Once amended the indictment in its amended form is to be treated as the indictment for the purposes of the trial (s 22).

So far as the record shows there was no application for leave or any communication of a consent by the Applicant.

In Regina v McNamara (No. 2) (1997) 1 VR 257 consideration was given to the situation where the accused had been arraigned and joined issue on a presentment in 1992, and a year later had been arraigned on a second presentment to which he had also pleaded guilty, and upon which he then went to trial. The Court (Winneke P, and Charles and Southwell JJA) observed, obiter, at 270: "It is probably correct that if the problem now before the court had then been appreciated, the trial judge could have stayed the second presentment, and thereby have forced the Crown to proceed upon the first presentment, a course which would have preserved the applicant’s right to give unsworn evidence. However, that was not done. It is now conceded by counsel for the applicant that if by inadvertence the applicant had not on 12 May 1993 been called upon to plead to the second presentment, then the trial would have been a nullity and the conviction bad. That would be so for the reason that the applicant would not then have joined issue upon that presentment, which is a condition precedent to a lawful trial; it was that issue which the jury had been empanelled to try, and it matters not that the applicant had earlier joined issue upon another presentment."

I would respectfully reach the same conclusion in the present case, it being one where the Appellant went to trial on the second indictment.

It was the Traill indictment which, as Bell J also found in R v Halmi , at [51], applying the decisions of this Court in R v Reardon [2004] NSWCCA 197; R v Lapa (No. 2) (1995) 80 A Crim R 398 and R v Stephens (1990) 48 A Crim R 323, constituted the record of the Court. The Appellant was put to trial and joined issue with the Crown on that indictment.

Although there is no reason why a person cannot be arraigned more than once (see R v Nicolaidis (1994) 33 NSWLR 364 at 367), there can only be one indictment in any one trial: R v Landy (1943) VLR 73 and R v Howard at [247] to [248]. I agree with the reasons of the Chief Justice at [97] to [99] for not accepting the Crown submission that the trial proceeded upon the basis of the first indictment. As his Honour points out that did not happen either in substance or in form.

This brings me to consider the critical question which arises, namely the proper construction of s 126 of the Act. That section is to the following effect: 126 Signing of indictments (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. (3) It shall be presumed, in the absence of evidence to the contrary, that an indictment signed by a person for and on behalf of the Attorney General or the Director of Public Prosecutions was signed by a person authorised to do so. (4) A certificate signed by the Director of Public Prosecutions to the effect that a specified person was authorised during a specified period to sign indictments for and on behalf of the Director is admissible in evidence in any legal proceedings and is evidence of the matters certified.

It has to be considered in the light of the practice and legislative history which has been reviewed by Howie J, and in the context of the current legislation, so far as that confers jurisdiction on the Court and empowers those who are able to institute a prosecution on indictment.

By reason of s 5 of the Act, the offences with which the Appellant were charged fell to be determined on indictment, which had to be presented within 4 weeks after committal except as otherwise provided by s 129 of the Act. As s 8 makes clear, the offences were punishable by "information called an indictment" presented "on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions", which may be either their "official name" or their "personal name".

The general jurisdiction of the District Court to deal with all indictable offences other than certain prescribed offences arises under s 46(2) of the Act, and see also s 166 of the District Court Act. Otherwise it is the subject of express legislative provision in the form of s 130 of the Act which provides: 130 Trial proceedings after presentation of indictment and before empanelment of jury (1) In this section, court means the Supreme Court or District Court. (2) 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. (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled: (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial. (4) Nothing in this section requires a jury to be empanelled if the accused person pleads guilty to an offence during proceedings to which this section applies. (5) This section applies to proceedings in respect of indictments presented after the commencement of this section.

The significance of the indictment for the prosecution of the person charged is reinforced by ss 153 and 154 of the Act which provide: 153 Guilty plea to offence not charged (1) If an accused person: (a) is arraigned on an indictment for an offence, and (b) can lawfully be convicted on the indictment of some other offence not charged in the indictment, he or she may plead “not guilty” of the offence charged in the indictment, but “guilty” of the other offence. (2) The Crown may elect to accept the plea of “guilty” or may require the trial to proceed on the charge on which the accused person is arraigned. 154 Plea of “not guilty” If an accused person arraigned on an indictment pleads “not guilty”, the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly.

The enactment of the Director of Public Prosecutions Act 1986 and of the Crown Prosecutors Act 1986 redefined the functions and responsibilities of the Director of Public Prosecutions and of the Crown Prosecutors. The functions and responsibilities of the Director are now defined in the Director of Public Prosecutions Act as follows: 7 Principal functions (1) The principal functions and responsibilities of the Director are: (a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court, (b) to institute and conduct, on behalf of the Crown, appeals in any court in respect of any such prosecution, and (c) to conduct, on behalf of the Crown as respondent, any appeal in any court in respect of any such prosecution. (2) The Director has the same functions as the Attorney General in relation to: (a) finding a bill of indictment, or determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial, (b) directing that no further proceedings be taken against a person who has been committed for trial or sentence, and (c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial.

The functions of the Crown Prosecutor, absent a delegation in accordance with s 33 of the Director of Public Prosecutions Act, are defined in the Crown Prosecutors Act as follows: 4 Crown Prosecutors … (4) A Crown Prosecutor is responsible to the Director for the due exercise of the Crown Prosecutor’s functions. … 5 Functions (1) The functions of a Crown Prosecutor are: (a) to conduct, and appear as counsel in, proceedings on behalf of the Director, (b) to find a bill of indictment in respect of an indictable offence, whether or not the person concerned has been committed for trial in respect of the offence, (c) to advise the Attorney General or Director in respect of any matter referred for advice by either of them, and (d) to carry out such other functions of counsel as the Attorney General or Director approves. (2) Functions under subsection (1) (b) shall be exercised in the name and on behalf of the Director. (3) A Crown Prosecutor does not have the function of determining that no bill of indictment be found or directing that no further proceedings be taken against a person.

It may be observed additionally that, in accordance with s 13 of the Crown Prosecutors Act , the Attorney General may appoint a person, who is eligible to act as a Crown Prosecutor, to act as a Crown Prosector. A person who is acting as a Crown Prosecutor has and may "exercise all the functions of a Crown Prosecutor (s 13(4)). Had Ms Traill been so appointed, then the problem which here arises would have been avoided, since in her deemed office she would have had authority under s 126(1)(b)(i) to have signed the indictment for and on behalf of the Director. So far as the record shows she did not hold any such appointment, even though she purported to sign the indictment as "the Crown Prosecutor on behalf of the Director of Public Prosecutions".

In that regard, it does not seem to me to avail the Crown that, pursuant to s 21 of the Director of Public Prosecutions Act she had been briefed by the Director or by his office to prosecute the proceedings. Neither that office nor the Director had any power to appoint her to be a Crown Prosecutor, and any authority given to her to conduct the prosecution could not, in the absence of a proper grant of power, extend beyond that limited authority.

Although not of any direct relevance for the present case, one aspect of s 126 may be mentioned. If the indictment is not signed by the Attorney General, the Solicitor General or the Director of Public Prosecutions, then it can be signed for or on behalf of the Attorney General or the Director, but not for or on behalf of the Solicitor General, by one or other of three classes of persons. They include a Crown Prosecutor and a Deputy Director of Public Prosecutions, whose respective authority to do so is no doubt assumed by reason of their Office, without the need for any additional grant of authority.

The third class is confined to a person who is authorised by the Director in writing under subsection 2, but that authority is confined to indictments signed "for and on behalf of the Director", and does not, in its terms, permit such a person to sign for and on behalf of the Attorney General.

While it was held in R v Paynter (1870) 9 SCR 277 that the Prosecutor's signature to an indictment seemed not to be "absolutely necessary", that was understandable in a context where the Prosecutor named in the indictment was in fact before the Court, thereby authenticating its validity, since at the time when that case was decided, the Prosecutor had the authority in his own name to present the indictment.

It is not a decision which, in my view, provides any assistance for the Respondent in the present case now that the indictment has to be signed by one or other of the persons identified in s 126, who may not personally conduct the prosecution.

In the absence of any residual and independent authority to institute a trial on indictment, beyond that which rests in the Attorney General, the Solicitor General and the Director, or in those who have either a legislative delegation or valid authority to do so, it seems to me that the legislative intention is one that requires strict adherence to the provisions of s 126(1) of the Act. Although no assistance is to be gained by reference to the Parliamentary debates in relation to the introduction of the cognate legislation comprising the Criminal Procedure Act , the Director of Public Prosecutions Act , and the Crown Prosecutors Act, the comprehensive code which now exists appears to have placed particular importance on the authentication of the information or indictment upon which an accused is to go to trial, including the warranty which is implied that a bill has been found.

Unless that is so, there would seem to be little point in the existence of the rebuttable presumption for which provision is made in subs (3) and (4). If that presumption is rebutted by "evidence to the contrary", as is the case here, then the question arises as to what should be the consequences for an indictment which has not been signed in accordance with the section.

It is difficult to see how the answer to that question could depend upon the status of the person who purported to sign it, for example, permitting its use where the signatory was an employee of the Office of the Director of Public Prosecutions or counsel who had been briefed to conduct the prosecution, but otherwise where the signatory was a private citizen with no apparent or actual authority to bring proceedings on behalf of the Crown.

This, in my view, provides a strong pointer towards the existence of a legislative intention that such an indictment would be of no effect.

The importance of ensuring compliance with the laws in relation to the presentation of the indictment is underlined by the circumstance that it is the instrument by which the jurisdiction of the Court to try an accused is invoked. It is the plank upon which the Court's authority to empanel a jury for the purpose of determining whether the accused is guilty or not, and thereafter to impose a sentence, rests. It is not a mere technicality but an essential procedural step that there be a valid information: John L Pty Limited v Attorney General (NSW) (1987) 163 CLR 508.

That is not to say that certain defects in the indictment cannot be cured. Sections 16 and 17 of the Act obviously make provision in that respect. The various defects identified in s 16 which are expressed as not causing an indictment to be "bad, insufficient, void, erroneous, or defective", do not, include the situation which here arises, and that section could not be called in aid. I am similarly unpersuaded that s 17 can be invoked where the indictment has not been properly signed.

Independently of that conclusion, I would in any event have difficulty in accepting the proposition that this was a case where there was a "formal defect apparent on [the] face of the indictment, within the meaning of s 17(1)". There was no requirement for the indictment to record under the signature of Ms Traill that she had been authorised in writing to sign it. For all the Appellant and his legal advisors knew (since this matter was not canvassed at the trial beyond establishing that she was "not normally a Crown Prosecutor", and was a member of the private bar), she held an authority in writing from the Director. Paynter does not, in my view, stand as authority to the contrary, having regard to the statutory provisions which now apply in this state.

I am unpersuaded that the Crown is entitled to place reliance on the de facto officers doctrine, in order to overcome the absence of a duly authorised signature on the indictment. In this regard I expressly adopt the reasons of the Chief Justice.

I am unpersuaded that the Crown could rely on waiver where the Court's jurisdiction was conditional on the existence of a valid indictment, for similar reasons to those considered in The Commonwealth v Verwayen (1990) 170 CLR 394, especially by Brennan J at 425. I am similarly unpersuaded that the Crown could rely on waiver arising from the fact of the Appellant entering a plea of not guilty and preceding to trial. I do not consider that either can provide an answer.

Even if waiver was available (which in my view it is not) there is nothing on the record to suggest that the Appellant was aware of the defect and elected to allow the proceedings to continue.

Accordingly I agree that the appeal should be allowed and that orders should be made as proposed by the Chief Justice.

HUNT AJA: I agree with Howie J.

HOWIE J : I have received the considerable benefit of reading the judgment of the Chief Justice in draft. I gratefully adopt what his Honour has written as to the factual background of the appeal in giving my reasons for upholding the decision in R v Halmi [2005] NSWCCA 2 and, therefore, allowing the appeal.

The first ground of appeal is: The trial and conviction of the appellant are nullities as the indictment on which the trial proceeded was not a valid indictment.

There can be no doubt that the indictment presented before Judge Tupman and upon which the appellant was tried, “the Traill indictment”, was defective. There had been a breach of s 126 of the Criminal Procedure Act (the Act) in that no person, who was authorised to sign indictments pursuant to that section, signed the indictment. The issue raised by this ground of appeal is whether, as a consequence of that defect, the indictment was rendered invalid and hence the trial of the appellant nugatory.

On the authority of the decision of this Court in Halmi , the indictment was a nullity. It did not give the District Court jurisdiction to determine the charges on it, the appellant had never been validly put to his trial on that indictment and it could not support the conviction by the jury on the second count it contained. In my view the acquittal of the appellant on the first count is similarly not a valid verdict but, in the highly unlikely event that the Crown sought to retry the appellant on that charge, the court would have power to stay the proceedings as an abuse of process if it were necessary to do so.

It is clear that the setting aside of the conviction on the second count because of the invalidity of the indictment is a very unsatisfactory result arising, as it does, from a highly technical defect which, as was conceded by counsel for the appellant, did not cause the appellant the slightest prejudice in the conduct of his defence. The technicality at the heart of the defect is apparent from the reasons given by the Chief Justice: the indictment was signed by the person prosecuting the appellant and the indictment was in exactly the same terms as an indictment previously filed in the District Court, “the Fox indictment”. In my view it was strictly unnecessary for the Crown to file a second indictment before the trial of the appellant could proceed before Judge Tupman, and hence the failure to comply with s 126 was even more regrettable.

It will be recalled that the accused had previously been arraigned on the Fox indictment before Judge Nicholson SC. That indictment was in precisely the same terms as the Traill indictment. The trial that proceeded on the Fox indictment did not result in a verdict because the jury could not agree on either charge. Presumably after the jury was discharged, Judge Nicholson ordered that the appellant stand further trial on that indictment on a date to be determined. As a result of that order the appellant came before Judge Tupman. On that occasion the Traill indictment was presented before the jury panel and the appellant was re-arraigned on that indictment.

The presentation of an indictment and the arraignment of the accused before the jury panel is a step in the proceedings that marks the commencement of the trial: R v Nicolaidis (1994) 33 NSWLR 362 at 367. But it serves no other purpose and I do not believe that it is a necessary step provided that there has previously been an indictment filed and provided that the accused has been arraigned on that indictment. The proceedings for trial on indictment commence upon the filing or presentation of a valid indictment. When the accused is first arraigned and pleads “not guilty” he is “taken to have put himself or herself on the country for trial”: s 154 of the Act. Thereafter the Court has jurisdiction to make orders with respect to the conduct of the proceedings: s 130(2) of the Act.

There is authority that there can be a valid trial even without an arraignment provided that the accused has indicated his intention to plead not guilty to the charge before the court: Reg v Williams [1976] 1 QB 373. In that case the Court of Appeal held that the accused had the right to waive the right to be arraigned. There the jury was empanelled on the mistaken belief that the accused had on an earlier occasion pleaded not guilty on arraignment. However, it should be noted that neither the Court of Appeal nor the trial court apparently believed that it was necessary for the accused to be re-arraigned before the jury panel where there had been an earlier arraignment.

I am of the view that in the present case the Fox indictment could have sustained the trial of the appellant before Judge Tupman, if the Traill indictment had not been presented. There is no doubt that the proceedings before Judge Tupman were a continuation of the proceedings commenced by the presentation of the Fox indictment: R v Taylor [2003] NSWCCA 197. That indictment had not been spent because the trial upon it concluded without verdict. Proceedings for an offence charged on an indictment can only be brought to a conclusion in one of three ways: by verdict after trial, by plea of guilty or by entry of a nolle prosequi: R v Howard (1992) 29 NSWLR 242 at 247. As none of these events occurred, the proceedings commenced by that indictment were still on foot when the appellant came before Judge Tupman. Had the presentation of the Traill indictment caused some unfairness to the accused, the court could have stayed it and thereby required the Crown to proceed on the earlier indictment: R v Harris (No 2) [1990] VR 305.

The presentation of the Traill indictment itself may not have had any great significance. It may be considered as nothing more than a convenient restatement of the original indictment: see R v TSR (2002) 5 VR 627. In the present case it could have been the means of ensuring that the jury did not know that there had been a previous trial by avoiding the fact that the jurors’ numbers and the result of the earlier trial were disclosed on the back of the Fox indictment. However, the significant step was when the appellant was arraigned on that indictment and pleaded not guilty. He was then put to his trial and thus joined issue with the Crown on the Traill indictment: R v McNamara (No 2) [1997] 1 VR 257 at 269-270.

I agree with the Chief Justice that the Crown’s argument before this Court that the Traill indictment had no effect upon the validity of the proceedings commenced by the Fox indictment must be rejected. There cannot be a trial on two indictments at the one time and the arraignment of the appellant on the Traill indictment must mean that the appellant was being tried on that indictment and not on the Fox indictment.

However, in my opinion neither the technical nature of the defect in the Traill indictment nor the unhappy consequence of the error made by the prosecutor can be allowed to influence the determination of whether the Traill indictment was valid. If the conviction is quashed as a result of this defect, it will not be the first or last time that such a result has followed what, on any view, is a highly technical objection raised after what has apparently been a fair trial. Even accepting, as I do, that there has in more recent times been a relaxation of some of the technicalities that plagued the administration of the criminal justice system in past centuries, there is still a rigorous approach taken by this and other courts to the fundamental requirements of a criminal trial regardless of the consequences.

For example, in R v Brown and Tran (2004) 148 A Crim R 268 a conviction was set aside because of “the entirely innocent intervention”, in the words of Mason P, of a person in the jury panel from which the jury for the trial of the appellants was selected. The person had been summoned for the next day and simply made a mistake as to when she was required to attend for jury service. The fact that this was a highly technical breach of the relevant sections of the Jury Act did not save the convictions of the appellants because of what was viewed as “non-compliance with fundamental, mandatory provisions” relating to the composition of the jury. The fact that there had not actually been a miscarriage of justice in any sense was to no avail.

Strict compliance with statutory requirements has been required following conviction and sentence: Byrnes v The Queen (1999) 199 CLR 1; Bond v The Queen [2000] 201 CLR 213 at [29]. If that be the case, it would appear to me to be of even more importance that strict compliance should be required in proceedings leading up to conviction.

I do not intend to delay my reasons by referring to other examples of cases where convictions have been set aside for the failure to comply with statutory provisions relating to the fundamental procedures in a criminal trial even where the defect or irregularity arising from that failure is of a highly technical nature and not directly concerned with the merits of the issues being resolved at the trial. The decisions of the appellate courts in criminal jurisdictions in both this and other States are replete with them.

The necessity for the strict observance of the technicalities of a criminal trial was considered in R v Deng (1996) 91 A Crim R 80. The Court was there concerned with a ground of appeal that asserted that the trial judge had misdirected the jury as to the offence charged even though the directions given did not touch upon the factual issue litigated before the jury and upon which the jury’s verdict had to be based. Mahoney P said at 85-86 (my underlining): The reason urged for holding that the trial miscarried lies in the attitude taken by the courts in the administration of the criminal law. That attitude was stated, in my respectful opinion correctly, by Kirby P in R v Birlut (1995) 39 NSWLR 1 at 5. His Honour there said: "Criminal procedure in our tradition is generally strict. The peril of liberty and the risk to reputation have imposed on criminal trials over the centuries a rigorous discipline so that procedural requirements are strictly complied with in the defence of the regularity of criminal process and the acceptability of its outcome. Rules of practical commonsense and flexibility, which have become increasingly acceptable in civil trials, must be viewed with reservation and care in the context of criminal trials. The fact that a point may be 'technical' is irrelevant. The strict application of the rule of law in criminal proceedings is the essence of the way in which, in our legal system, courts have defended due process. The comment that the argument raised is 'unmeritorious' is also beside the point: cf Meagher JA in R v Perry (1993) 29 NSWLR 589 at 594. If the matter raised has legal merit, that is enough. The procedural error or omission may, in some cases, be so significant that it strikes at the heart of the jurisdiction of the court: see Glennon v The Queen (1994) 179 CLR 1 at 8; and R v Yuill (1994) 34 NSWLR 179 at 186. This is particularly applicable in the case of a court of limited jurisdiction, such as the District Court of New South Wales. It has no large reserves of the inherent power, derived from the royal prerogative or the common law, to call upon: see Coles v Burke (1987) 10 NSWLR 429 at 437; Palmer v Clarke (1989) 19 NSWLR 158; Milosevic v Government Insurance Office of New South Wales (1993) 31 NSWLR 323 at 326; Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523 at 531. If a procedural error or omission strikes at the regularity of the mode of trial, this may not be regarded as merely technical, procedural or irregular. It may then deprive the court of jurisdiction. What then follows, at least in a court of limited jurisdiction, such as the District Court, may be classified by the law to be a nullity: see R v Perry (at 593); cf R v Fisher (Court of Criminal Appeal, 22 May 1995, unreported) at 2; R v Coles (1993) 31 NSWLR 550 at 551. Examples of cases in which irregularity of procedures have been regarded as fundamental and as undermining the validity of the trial include the cases which I have cited and also R v Golding (1988) 36 A Crim R 30." This attitude has not been taken without reason. The law is conscious of the role which technicalities have played. An apparent technicality may be the means chosen by the law to give effect to an important safeguard; the rule against double jeopardy may be such: see Walton v Gardiner (1993) 177 CLR 378. The requirement that technicalities be satisfied may operate as a brake upon the precipitate exercise of rights. And the insistence upon such matters may, as Thomas More explained to Roper, allow the weak to hide from the power of the powerful. But there are limits: at least there should be. Technicalities are not enforced for their own sake. They have a purpose; if they do not, they should go. Accordingly, one is in my opinion entitled to look to the function which an instant technicality is said to serve. If insistence upon the technicality in the instant case will not serve that purpose, it should not be used to defeat a trial.

Assuming that the view expressed by Mahoney P above is correct, so that technicalities that serve no purpose should not stand in the way of upholding a conviction where there has been no miscarriage of justice, it is necessary to consider the purpose of s 126 of the Act. To do that, it is essential to have regard to the history of the section in order to ascertain the intention of Parliament in enacting such a provision for the first time in 1986. Establishing the purpose of the section will also aid in determining whether Parliament could have intended that an indictment could be valid notwithstanding that it failed to comply with s 126.

In deciding that question it is necessary to bear in mind the importance of an indictment in a criminal trial. In R v McNamara at 269 the Court discussed the significance of the procedures that commence a criminal trial as follows (a “presentment” in Victoria is the equivalent of an indictment in this State): In Stephen, A History of the Criminal Law of England , Burt Franklin, New York (1983), pp. 245 et. seq., the history is traced of the manner in which proceedings were instituted; the private accuser (appellor) “was required to make a minute and strictly formal statement before the Coroner as to the nature of the offence, setting forth a great variety of particulars … This statement was enrolled by the coroner, and the appellor appears to have been held to it strictly...” It was to that document that the accused ultimately was called upon to plead. In the following pages in Stephen there are repeated references to “informations” and “presentments”; the latter was inspected by the steward to see that it was “in proper form”: p. 271. Then at p.274 the author discusses the finding by a grand jury of “a true bill”, and the “bill” then becomes an indictment. It is then said: The indictment is the foundation of the record in all criminal cases, and is indeed the only document connected with the trial which in all cases is in writing. The author goes on in these terms at p.275: It is enough to say that in all common cases the pleadings in a criminal trial have always consisted, and still consist, of an indictment engrossed on parchment, and a plea given by the accused person orally in open court, of guilty or not guilty. There has since been much legislation concerning the form of the presentment, but none has thrown doubt upon the necessity for the court’s possession of a document which sets out the offence and to which the accused is called upon to plead. Those references to the history of the process are made to serve as reminders that the presentment is not merely some relatively unimportant document, on the face of which is set out the offence, and on the back of which is endorsed the history and result of the proceedings.

Originally an indictment was the way proceedings commenced after the finding of a true bill by a grand jury as distinct from an information, which was the means whereby the Attorney General, or some other authorised officer, could commence a prosecution of his own motion: Fraser v The Queen (No 2) (1985) 1 NSWLR 680. However, as will become apparent, the term “indictment” has been used in this State, in the absence of any established system of grand jury, to describe the document that is presented to the court by a person, or on behalf of a person, empowered to commence a criminal trial. Section 8 of the Criminal Procedure Act , set out below, recognises that historic distinction. Further, proceedings on indictment are pleas of the Crown as distinct from proceedings commenced by information before a magistrate: R v Hull (1989) 16 NSWLR 385 at 394.

The presentation of an indictment is, therefore, the most fundamental of the procedures that attend a criminal trial for an indictable offence. So far as the courts in this State are concerned, there is neither any other procedural step necessary nor any alternative step available for the commencement of a criminal trial in the District or Supreme Court. The court cannot refuse to receive an indictment nor can it refuse to exercise its jurisdiction obtained from the presentation of the indictment unless to do so would be an abuse of process. Given that the indictment is “not merely some relatively unimportant document”, to quote from the judgment in McNamara (No2) , it might be expected that any defect in an indictment would, absent some statutory remedy, such as s 16 of the Criminal Procedure Act , give rise to a fundamental irregularity in the conduct of the proceedings that followed its presentation and resulted in a conviction based upon its flawed authority.

As the Chief Justice noted, there were before 1987, the year that the Criminal Procedure Act was commenced, provisions designed to deal with defects in indictments so far as the statement of the charge in a count in the indictment was concerned. They were derived from Imperial statutes and were originally enacted in the Criminal Law Amendment Act 1883. In 1987 they were found in the Crimes Act . Part XI of that Act contained provisions relating to procedure, evidence, verdict and other matters arising from a trial on indictment. So, for example, s 360 of that Act stipulated what defects in the statement of a charge in an indictment would not result in the indictment being held bad. A similar provision is now found in s 16 of the Criminal Procedure Act but applies to all documents by which criminal proceedings are commenced: see s 15(2) of the Act which extends the meaning of the term “indictment” for the purposes of Part 2 of the Act.

Section 362 of the Crimes Act , which dealt with objections to formal defects apparent on the face of the indictment, had a similar origin. The equivalent of that provision is now found in s 17 of the Criminal Procedure Act and has been referred to in the judgment of the Chief Justice. Defects of a formal nature that could have readily been overcome by amendment were under that section cured by verdict if no objection was taken to them at the trial: R v Goldberg (1887) 84 WN 124. I shall return to consider the extent and effect of that provision later.

There was no provision in the Crimes Act concerned with the form of the indictment itself as distinct from the form of the charge set out in any count in the indictment. In particular there was no provision requiring that an indictment be signed by any person, let alone a provision, such as s 126, specifying the class of persons who could sign an indictment. This was because such a provision was unnecessary before 1987 in light of the arrangements that were in place before that date for the prosecution of offences on indictment.

Prior to 1987 the authorisation for the appointment of persons to prosecute in the Supreme Court was found in an Imperial statute, the Australian Courts Act , 9 Geo. IV ch 83. Sections 5 and 6 of that Act provided for the prosecution of offences in the Supreme Court. The effect of those sections was considered in Barton v The Queen (1980) 147 CLR 75. It is convenient to refer to the content of those two sections as they were quoted in the joint judgment of Gibbs ACJ and Mason J at 88: Power to prosecute offences by an information in his name is conferred upon the Attorney-General by s 5 of the Australian Courts Act. It is expressed in these terms: “… Until further provision be made as herein-after directed for proceeding by juries, all crimes, misdemeanours, and offences, cognizable in the said courts respectively, shall be prosecuted by information in the name of His Majesty’s attorney general, or other officer duly appointed for such purpose by the governor of New South Wales and Van Diemen’s Land respectively …” It is convenient also to note s 6 which provides: “Provided always … that it shall and may be lawful for any person or persons, by leave of the said supreme courts respectively first had and obtained, to exhibit a criminal information against any other person or persons in the name of the said attorney general, or of such other officer as aforesaid, for any crime or misdemeanour not punishable by death, by him or her or them committed, or alleged to have been committed; and in granting any rule for exhibiting any such criminal information the said court shall not be bound to require from the parties or party applying for the same any exculpatory affidavits, unless the justice of the particular case may to such courts appear to require that such affidavits should be first made; and any information so exhibited as aforesaid by leave of the court shall be heard, tried, and determined, in such and the same manner, in every respect, as any other informations are herein-before required to be heard, tried, and determined.”

In Barton it was held that the decision of the Attorney General pursuant to s 5 to commence a prosecution by ex officio indictment was not reviewable by the courts because it was an exercise of prerogative power conferred under the section. As to the effect of s 5, Gibbs ACJ and Mason J said at 92: The purpose of s 5 of the Australian Courts Act was to arm the Attorney-General for New South Wales and Crown Prosecutors appointed by him with a power in all respects similar to that enjoyed by the Attorney-General in England and to extend the exercise of the power to all offences, including felonies. The section was enacted because the customary mode of initiating criminal proceedings in England, by presentment of the grand jury, was unsuited, or thought to be unsuited, to conditions in the colony at that time. It was for this reason that the provision was transitory in form. Their Honours stressed that all the section did was to indicate the mode in which a criminal prosecution was to be instituted, leaving the Attorney General at large in deciding what course to take in any particular matter.

It should be noted that s 5 was repealed by Schedule 1 of the Miscellaneous Acts (Public Prosecutions) Amendment Act 1986 . But it will be necessary to consider the effect of s 5 on the prosecution process in this State in order to understand why the section was repealed in 1986 and the consequences of its repeal.

Section 6 of the Australian Courts Act provided for a prosecution in the name of the Attorney General by a private prosecutor with leave of the Supreme Court. Dawson J considered the history of that provision in Grassby v The Queen (1989) 168 CLR 1. After referring to the operation of s 5 of the Australian Courts Act and the effect of its repeal, Dawson J turned his attention to the history of ex officio indictments in this State and the effect of s 6. His Honour wrote at 14 (citations not reproduced): In New South Wales the indictment also takes the place of the ex officio criminal information which it was the established privilege of the Attorney-General to file in the Queen's Bench Division of the High Court at will or at the relation of a private person or common informer. See Holdsworth, History of English Law , 3rd ed (1944), vol 9, pp 236 et seq. Section 12 of the Administration of Justice (Miscellaneous Provisions) Act 1938 (UK) abolished criminal informations, although "informations filed ex officio by His Majesty's Attorney-General" were preserved. As a matter of practice ex officio informations have ceased to be used at all in the United Kingdom. See Edwards, Law Officers of the Crown (1964), p 266. Notwithstanding the element of historical inaccuracy, any indictment filed in New South Wales in the absence of committal for trial, whether or not there have been committal proceedings, is commonly referred to as an ex officio indictment. See Barton v The Queen; Kidston, "The Office of Crown Prosecutor", Australian Law Journal , vol. 32 (1958), p 148. In fact the old, unpopular ex officio information, now largely abolished in the United Kingdom, was reflected in s 6 of The Australian Courts Act rather than in the authorization given by s 5 to the Attorney-General to assume the functions of a grand jury. Section 6 was peculiar to Australia and authorized any person, by leave of the Court, to exhibit a criminal information in the name of the Attorney-General for any crime or misdemeanour other than a capital offence. It was suggested in Reg v McKaye that the reason for this extraordinary power lay in the "small number of inhabitants [of New South Wales] many of whom were convicts. In fact, it was very little better than a gaol, and it might be that in those days it was thought right that the Court as well as the Attorney-General should have power to direct informations to be filed in all cases, not being capital."

By 1885 s 6 was already being limited in so far as it enabled a private citizen to bring a prosecution on indictment. In Reg v McKaye (1885) 6 NSWR 123, a decision referred to by Dawson J in the passage quoted above, a private citizen sought leave from the Supreme Court under s 6 where the Attorney General had refused to file an indictment against certain persons for conspiracy to defraud. In dismissing the application Martin CJ said: Although section 6 of the Constitution Act, 9 Geo. IV. c 83, gave the Court power to direct an information to be filed for any crime or misdemeanour not punishable by death, it was not expedient in the altered conditions of the colony to exercise that power. The times had changed; the business of the Court had changed; the Attorney-General was appointed in a different way, and he exercised his functions under very different circumstances. It was not expedient that the Court should constitute themselves a court of appeal from the Attorney-General in matters of this kind.

In 1896 the Court refused to issue an indictment where a magistrate had refused to issue a summons for the reason that the Court did not sit on appeal from the decision of the magistrate: Ex parte Little (1896) 12 WN 136.

By 1915 the discretion in the Supreme Court to order that an indictment be filed in the name of the Attorney General at the suit of a private individual was described as a remedy of “an extraordinary nature”: In re Abbott (1915) 15 SR (NSW) 159.

There were equivalents of s 6 found in both the Queensland and Western Australian Criminal Codes. In considering whether to exercise the power under s 686 of the Queensland Code, enacted in 1899, in Ex parte Marsh (1966) Qd R 357, Wanstall J referred to the history of s 6, its counterpart in England and its replacement section under the Queensland Code. His Honour noted at 363 that The Australian Digest Vol 5 collected “about two dozen examples of cases decided under the section between 1884 and 1930”. His Honour described the procedure as “unusual and extraordinary” and declined leave for the presentation of an information for assault occasioning harm or wounding.

Section 686 was most recently considered in G v Volkers (2004) 150 A Crim R 553. This was an application considered after the creation of the office of Director of Public Prosecutions in Queensland and where the Director had refused to find a bill. Leave to commence a prosecution was refused.

In Gouldham v Sharrett [1966] WAR 129 the Full Court of the Supreme Court of Western Australia considered the equivalent of s 6 enacted in the Western Australian Criminal Code in s 720. (This section has been repealed and s 20(5) of the Criminal Procedure Act (WA) declares in effect that a person acting in his or her private capacity cannot commence a prosecution unless permitted to do so by some particular statute.) In his judgment Wolff CJ considered extensively how a private individual could commence a prosecution at common law and under various statutes existing at different times. He makes passing reference to McKaye and Little . His Honour stated: In close on 50 years association with the law I have known of no case of a private prosecution and have been unable to find any in the records”

His Honour held that, although the authority of the Crown was behind the prosecution, the informant had to carry the burden of it, including the engaging of counsel. However, leave was refused.

Section 5 of the Australian Courts Act was not the only source of the power to appoint persons to prosecute offences on indictment. In 1840 by 4 Vic 22 s 10 the Governor was empowered to appoint persons “by whom and in whose name” all offences cognizable in the Courts of Quarter Sessions may be prosecuted. This provision was later enacted as s 572 of the Crimes Act . The persons appointed both under s 5 and s 572, or its predecessors, were Crown Prosecutors.

I note that s 572 of the Crimes Act was repealed at the same time and in the same provision that repealed s 5 of the Australian Court Act and to which I have referred earlier in this judgment.

In his article The Office of Crown Prosecutor at 32 ALJ 143 Mr Kidston QC traces the history, role and functions of Crown Prosecutors. Although this article was published in 1958, from my experience I do not understand that the procedures set out in the article differed to any significant degree from that which existed prior to 1987. It accords with the account given of the method by which a Crown Prosecutor brings a matter to trial set out in the judgment of Gleeson CJ in R v Hull (1989) 16 NSWLR 385 at 391-392.

The position was that prosecutions commenced by indictment were generally undertaken either in the name of the Attorney General, which was exceptional, or in the name of a Crown Prosecutor in both the Supreme and District Courts. The signature on the indictment would be of the person named in the indictment as the prosecutor.

Because there was only a very limited use of the grand jury in this State, as to which see G.D. Woods, A History of Criminal Law in New South Wales Federation Press 2002 at 59-61, the function of finding a bill of indictment fell principally to Crown Prosecutors. If the accused had been committed for trial for an offence, it was the Crown Prosecutor’s function to determine whether to find a bill on the committal charge, or some other charge, or to bring the prosecution to a conclusion by finding no bill. It was open to another Crown Prosecutor to find a bill for a different charge than the one initially found. The prosecutor who found the bill would generally be the prosecutor whose name appeared on the indictment because the finding of the bill was the act that authorised the commencement of the prosecution for the offence for which the bill was found in the absence of some other procedures such as a grand jury: The King v Federal Court of Bankruptcy: Ex parte Lowenstein (1938) 59 CLR 556 at 583. If another prosecutor than that who found the bill signed the indictment, he or she did so on the basis of the bill found and marked on the papers. The finding of a bill and the signing of an indictment were distinct processes: Halmi at [51]. Once the signed indictment was presented, any person could prosecute upon that indictment: R v Walton (1851) Legge 706; R v Parker [1977] VR 22 at 42.

The Crown Prosecutors were independent Crown officers appointed by the Governor and under the general control of the Attorney General. It was the Attorney General who ratified the decision not to find a bill of indictment, who brought a prosecution to an end by entering a nolle prosequi, and who approved the filing of an ex officio indictment.

All of this changed in 1987. In that year the Director of Public Prosecutions Act , the Crown Prosecutors Act and the Criminal Procedure Act commenced. The most immediate effect of that package of legislation was to change the procedure leading up to the commencement of a criminal trial. The Crown Prosecutors lost whatever vestiges of independence they might have enjoyed since the enactment of s 5 because they were to perform their functions on behalf, and under the control, of the Director of Public Prosecutions (“the Director”). Section 14(2) of the Crown Prosecutors Act revoked all appointments made under s 5 and s 572 of the Crimes Act .

Section 5 of the Crown Prosecutors Act provided: (1) The functions of a Crown Prosecutor are: (a) to conduct, and appear as counsel in, proceedings on behalf of the Director, (b) to find a bill of indictment in respect of an indictable offence, whether or not the person concerned has been committed for trial in respect of the offence, (c) to advise the Attorney General or Director in respect of any matter referred for advice by either of them, and (d) to carry out such other functions of counsel as the Attorney General or Director approves. (2) Functions under subsection (1) (b) shall be exercised in the name and on behalf of the Director. (3) A Crown Prosecutor does not have the function of determining that no bill of indictment be found or directing that no further proceedings be taken against a person. Section 4(4) of that Act provided: A Crown Prosecutor is responsible to the Director for the due exercise of the Crown Prosecutor’s functions.

The Director was now to be the person who, with the Attorney General, was authorised to institute and conduct prosecutions on indictment. Section 7 of the Director of Public Prosecutions Act provided: (1) The principal functions and responsibilities of the Director are: (a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court, (b) to institute and conduct, on behalf of the Crown, appeals in any court in respect of any such prosecution, and (c) to conduct, on behalf of the Crown as respondent, any appeal in any court in respect of any such prosecution. (2) The Director has the same functions as the Attorney General in relation to: (a) finding a bill of indictment, or determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial, (b) directing that no further proceedings be taken against a person who has been committed for trial or sentence, and (c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial.

Because of the changed status of the Crown Prosecutor, it was no longer appropriate for indictments to be brought in the name of the Crown Prosecutor because he or she was fulfilling the functions of the office on behalf of the Director. Consequently s 4(1) of the Criminal Procedure Act , now s 8(1), provided: All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions.

Thus s 15, now s 126, of the Criminal Procedure Act provided for the signing of an indictment as follows: (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. (3) It shall be presumed, in the absence of evidence to the contrary, that an indictment signed by a person for and on behalf of the Attorney General or the Director of Public Prosecutions was signed by a person authorised to do so. (4) A certificate signed by the Director of Public Prosecutions to the effect that a specified person was authorised during a specified period to sign indictments for and on behalf of the Director is admissible in evidence in any legal proceedings and is evidence of the matters certified.

It seems that this provision was considered essential for the conduct of the new system for the prosecution of indictable offences. As has already been noted, before the section was enacted there was no similar provision in relation to indictments prosecuted by Crown Prosecutors in their own names or by the Attorney General. Further, Part 5 of the Act, in which this provision was located, contained only four sections: this section, s 16 concerning the name in which prosecutions were to be instituted, s 17 concerning the abolition of the office of the Clerk of the Peace, and s 18 containing the power to make regulations under the Act. The other provisions dealing with indictments remained in the Crimes Act .

There is nothing in the second reading speech introducing this package of legislation to explain the purpose in limiting the persons who could sign an indictment. The Attorney General said this about the Criminal Procedure Bill, Hansard 1 December 1986 p 7339 at 7343: The third bill in the package, the Criminal Procedure Bill, will eventually become one of the most important statutes dealing with the criminal law of this State. At present it contains three sets of provisions. The first are those concerned with the general law relating to indictable offences. These provisions are found in parts 2 and 5 of the bill. These clauses, to a large measure, re-enact the present law relating to the jurisdiction of the Supreme Court and District Court and the formal requirements of indictments………

However, at least one purpose of the section seems to me to be obvious. As the Chief Justice points out, before 1987 the purpose in signing an indictment was either to authenticate it or to identify the prosecutor. The latter purpose was presumably so that it could be determined that the person who signed the indictment had authority to do so. That authority obtained from his or her appointment under s 5 of the Australian Courts Act . So in R v Painter (1870) 9 SCR 277 the fact that the prosecutor was personally before the trial court meant that his signature to the indictment did not, in the opinion of the Court, “seem to be absolutely necessary”. The signature was not needed to authenticate the prosecution because the prosecutor named in the indictment was in fact prosecuting on that indictment. The appearance of the prosecutor in court or his signature on the indictment authenticated the prosecution by warranting that a bill had been found for the offence. This continued to be the position up until 1987.

However after that date, because the prosecution was brought generally in the name of the Director, the indictment had to be authenticated by an authorised person because the prosecutor, the Director, was, as a general rule, not going to appear personally nor was he going to sign the indictment. The court, the accused and other interested persons had to have the means by which they could be satisfied that the prosecution was one brought in accordance with the new procedures set in place by the Director of Public Prosecutions Act ; that is a proceeding brought under the authority of the Director and that the prosecution was regular . Whether or not the indictment had to be signed in order for it to be authenticated before 1987 does not seem to me to be to the point. Nor does it seem to me to be relevant what might have been the position in other jurisdictions where a different system for commencing prosecutions existed.

The persons stated in s 126 were those who had authority to authenticate the indictment, that is to warrant that the prosecution was being brought in the name of the Director and that it was regular, for example, in that a bill had been found for the offence charged. They had this authority either because of the person’s status as a Crown Prosecutor or because the person was authorised by the Director to give that warranty. The Crown Prosecutors needed no such authority from the Director because, by reason of the provisions of the Crown Prosecutors Act , they acted in the name of, and on behalf of, the Director in fulfilling their functions, one of which included finding a bill. The giving of the authority to sign an indictment to persons other than Crown Prosecutors had to be in writing, s 126(2), and, therefore, the Director could control who acted in his name and on his behalf, in warranting to the court and other persons interested that the proceedings were authorised by the Director and were procedurally regular.

It does not seem to me that the section is concerned with the signing of an indictment per se but with the authority of a person to warrant to the court that the proceedings were truly brought in the name of the Director, under his authority, and that the processes leading up to the presentation of the indictment had been regular. In my opinion where an indictment is signed by a person without the authority to sign an indictment, there has been no compliance with the section by the fact that the indictment was signed. In my view the purpose of the section is to provide a means of authorising the commencement of a criminal prosecution on indictment brought in the name of the Director. That purpose is not achieved where a person, who has no entitlement to authorise the prosecution, signs the indictment.

In my opinion, the defect in the Traill indictment was not that a person signed the document without authority to do so, but rather that the indictment was not signed by a person authorised to do so. If the person signing the indictment is not authorised, then in my opinion the signature is worthless. It is incapable of representing to the court that the prosecution is authorised by the Director or that it is regular. It does not matter in my view that the person who signed the indictment has been briefed to appear for the Director to prosecute the indictment. Unless the person is authorised to sign the indictment, that person’s role or function in the proceedings before the court is also irrelevant.

A further purpose for s 126, and perhaps a more controversial one, is that the section deprived s 6 of the Australian Court Act of any effective operation insofar as it had permitted a private person to commence proceedings in the Supreme Court. Section 5 of that Act had been repealed in 1986 and the power of the Governor to appoint prosecutors was, after 1987, found in s 4(1) of the Crown Prosecutors Act . However, s 6 was not repealed but, as Dawson J pointed out in Grassby , that section gave the Attorney General the power to present an ex officio indictment, a power independent of s 5.

As has been seen, s 6 of the Australian Courts Act had a very limited role to play in the commencement of prosecutions on indictment at least after the decision in Reg v McKaye . I find it impossible to see how a prosecution could be commenced under s 6 in light of the requirement of s 126 that only a limited class of persons could sign an indictment.

It might be argued that in a case where the Supreme Court had given leave to commence a prosecution in the name of the Attorney General it was not necessary that the indictment comply with s 126. But, if it had been the intention of Parliament that s 6 would still have some work to do after the commencement of the Criminal Procedure Act , it would be expected that s 126 would acknowledge its existence or its operation by some words limiting the apparent mandatory operation of the section. For example, the requirement imposed by s 126 might have been expressly excluded where the Supreme Court granted leave for the issuing of an indictment. I do not believe that it would be appropriate to read words into s 126 in order to preserve the operation of s 6, unless it was clear that this is what Parliament had intended.

Alternatively s 126, could have provided that the person granted leave by the Supreme Court was authorised to sign an indictment. There was a provision to that effect in the Western Australian Criminal Code.

In any event, it would be surprising if Parliament had intended that s 6 would have had any operation once it had given the control of the prosecution of offences on indictment almost exclusively into the hands of the Director. It is inconceivable, to my mind, that Parliament would have intended that the Supreme Court could have been able to authorise a prosecution where neither the Director nor the Attorney General was prepared to do so. As I have already noted, the Supreme Court had by the early years of the last century refused to give its imprimatur to the commencement of a prosecution both where the Attorney General and a magistrate had refused to do so. The Court was hardly likely to be expected to take on the role of sitting on appeal from decisions of the Director where it had refused to do so from other officers entitled to issue process to commence a prosecution. The Court has refused to review the decision of the Director with respect to the exercise of his function to take over proceedings for an indictable offence brought by a private informant: see Hanna v Director of Public Prosecutions [2005] NSWSC 134.

It should be noted that, although there are provisions requiring the leave of the Supreme Court or the Attorney General before a prosecution can be brought for certain offences, see for example the offence under s 172 of the Crimes Act , in practice leave, or consent, is given by the Director for the commencement of the prosecution because under s 11(2) of the Director of Public Prosecutions Act the Attorney General has authorised the Director to consent to such prosecutions.

However, putting s 6 to one side, it seems to me that the effect of s 126 and what Parliament intended would be the result of a failure to comply with it, must take into account at least four matters that point to the fact that Parliament intended that compliance with the section would be strictly required so that breach would always result in invalidity. Firstly, the section concerns the form of an indictment, that is the requirements of the fundamental process for the commencement of a criminal trial. As I have already noted, the courts have generally taken a rigorous approach to technicalities or irregularities concerned with the fundamental processes in a criminal trial. In R v Brown and Tran the relevant provisions of the Jury Act were declared to be mandatory and the failure to comply with them resulted in invalidity notwithstanding that in the particular case there was a completely innocent breach of the provisions.

Secondly, as Mahoney P pointed out in Deng in the passage quoted earlier, technicalities should be maintained at least where they serve a purpose. In my view there is an important purpose to be served by maintaining strict compliance with s 126, being the authorisation, in the absence of the appearance or signature of the Director as prosecutor, that the prosecution is taken in his name and on his behalf and that the procedures leading up to the presentation of the indictment were regular.

Thirdly, the section is not concerned with the statement of the charge. Parliament has made provisions, such as those in s 16 of the Act, to ensure that invalidity will not necessarily be the result of defects in the manner in which the charge is stated overcoming to a significant degree the technicalities of the common law in that regard. It has made no express provision to save defects arising from the form of the indictment itself, and certainly none in respect of a failure to comply with s 126.

Fourthly, s 126 had no equivalent at common law or before 1986. Prior to the enactment of the Act the requirements for a valid indictment depended upon the particular processes in place for the commencement of a prosecution on indictment. In particular, whether or not a signature was required on an indictment depended upon whether in a particular case it was necessary to authenticate the proceedings by that means. In those circumstances the failure to sign an indictment under one set of circumstances might not have the same significance that it had under other circumstances.

I have already expressed my opinion that this Court should not give significant regard to the necessity or otherwise to sign an indictment in other jurisdictions or before 1987 when construing Parliament’s intention in enacting s 126. Similarly, in my opinion, the Court should not pay the same respect to decided cases concerned with the effect of the failure to sign an indictment in other jurisdictions or at an earlier point in time as might otherwise have been the case had there been a statutory requirement such as s 126 in existence or had there been some similarity with the present system of commencing proceedings on indictment when those cases were decided. The attitude of the Court to the failure to authenticate the indictment in Painter does not in my opinion indicate how this Court should consider such a failure under s 126.

I doubt that s 17 of the Criminal Procedure Act would have the same operation today on a failure to comply with a statutory requirement in respect of an indictment as it did in the case where no such statutory requirement existed. For example, I find it difficult to accept that an indictment which was in the name of a person other than the Director or the Attorney General and in breach of s 8 of the Act could possibly sustain a conviction simply because the defect was not brought to attention before the jury was sworn. But that is because I would readily infer that Parliament could not have intended that such a failure would nevertheless result in a valid indictment.

Insofar as the operation of s 17 relies upon waiver of a patent defect by the actions of the accused in pleading to the indictment, I do not understand how the invalidity of an indictment can be waived. Invalidity goes to the very operation of the indictment to give the court jurisdiction. I do, however, understand how objections to formal defects in the statement of the charge, such as patent duplicity, are taken by an application to quash the indictment or by a demurrer, as s 17(1) contemplates. I also understand how a formal defect in the pleadings of the charge can be waived where, if objection had been taken to the defect, it could have been dealt with by amendment as s 17(2) contemplates. I have difficulty, however, in accepting that the signing of an unsigned indictment, after an objection under s 17, particularly in light of s 126, would be taken as merely an amendment to an otherwise valid indictment.

Any suggestion that s 17 might be used as an aid in determining the intention of Parliament in respect of a statutory requirement for an indictment seems to me to have a degree of circularity about it. Section 17 assumes that the formal defect appearing on the face of the indictment is one that would not result in invalidity and is capable of amendment. If the patent defect is one that derives from a statutory requirement, then the operation of s 17 upon the defect assumes that Parliament did not intend that the defect arising from the failure to comply with the requirement would ever result in invalidity.

This is not the occasion to embark upon a consideration of demurrers, special demurrers and pleas in abatement. Archbold in the 19th edition of Pleading and Evidence at p136 considered that these types of pleadings in answer to an indictment and to attack its validity had been largely rendered obsolete by the enactment of the provision that is now found in s 16 of the Act. But it is not clear to me that any of these actions were taken to attack the validity of the proceedings arising from a fundamental defect in the indictment going to the jurisdiction of the court as distinct from an attack upon the validity of the charge or its form. I would not on the basis of the authority of Painter be prepared to assume that the failure to sign an indictment in breach of s 126 is a formal defect for the purpose of s 17. Hence I am not prepared to reason that, as Parliament could not have intended that a failure to sign an indictment would have resulted in invalidity, it could not have intended that invalidity would invariably follow where the indictment was signed by a person without authority.

The fact that the signing of the indictment by a person authorised to do so thereby authenticates the indictment and the proceedings based upon it can have real significance. For example, the fact that the indictment has been duly authorised allows certain inferences or assumptions to be made about the process leading up to the presentation of the indictment. One common assumption would be that a bill had been found for the charge in the indictment or, in a case where the charge was not that upon which the accused was committed for trial, that an ex officio indictment had been found by the Director. In effect the signing of the indictment by an authorised person warrants that this is the case.

In R v Howard (1992) 29 NSWLR 242, the Court was prepared to infer that certain steps had been taken by the Director in the course of the commencement of a prosecution for murder, including making a determination that there be no further proceedings on a charge of manslaughter in respect of which the accused had previously been arraigned. The court is able to make such inferences or assumptions where an authorised person has signed the indictment, even though the person prosecuting on the indictment is not the person who signed the indictment. Where an authorised person does not sign the indictment, such assumptions or inferences cannot be made simply upon the basis of the presentation of a signed indictment.

Like Bell J in Halmi , I see real significance in the fact that s 126(3) provides for a rebuttable presumption in favour of the validity of the signature appearing on the indictment. The provision confirms to my mind that Parliament understood the significance of the indictment being signed by an authorised person and that the consequence of a breach of the section would invariably be invalidity.

It would seem to me to be a highly inconvenient result that the validity of an indictment could depend upon a consideration of the circumstances surrounding the failure to comply with s 126 on the basis of an application of the principle of statutory construction derived from Project Blue Sky Inc v The Australian Broadcasting Authority (1998) 194 CLR 355. I mean by that inconvenient to the general administration of criminal justice. It seems to me to be an area where certainty is a distinct advantage. If it be the case that validity depends upon the circumstances surrounding the breach of the statutory requirement, then a person could sign an indictment aware that he or she had no authority to do so but on the basis that the act would be ratified by the surrounding circumstances. I cannot believe that this could have been the intention of Parliament.

I agree with the Chief Justice for the reasons given by him that the Crown cannot rely upon the de facto officers doctrine to validate the indictment.

As I would uphold the first ground of appeal it is unnecessary strictly for me to decide the other grounds of appeal. However, I indicate that I would dismiss those grounds of appeal for the reasons given by the Chief Justice.

The appeal should be allowed, the conviction and sentence quashed. There should be a retrial of the appellant on the offence of maliciously inflict grievous bodily harm.

JOHNSON J : I have had the privilege of reading the judgments, in draft, of the Chief Justice and of Howie J. I agree with Howie J. I agree that the de facto officer principle does not assist the Crown on this appeal for the reasons given by the Chief Justice.